Dr. Carlson-Thies weighs in on North Coast case

Dr. Stanley Carlson-Thies is a well known expert on questions relating to faith-based social services.  After reading this MOJ post (see also this one) about the recent decision in the North Coast Women's Care case, he sent me this comment:

The North Coast Women's Care decision is troubling for its easy subordination of the religious and conscience rights of doctors to the supposed right of a patient to have a desired procedure performed without inconvenience.  And it is troubling for its easy reliance on the Smith decision's odd logic that, as long as the legislature did not set out to prohibit some exercise of religion, the fact that the exercise is suppressed just the same is not so important. 

Still, the decision seems to me a bit more complex than some commentary suggests.  The legal rule at the center of the case, the California Unruh Act's prohibition of discrimination on the basis of sexual orientation (and multiple other bases), applies to business establishments, including health care practices.  That is, the case is not only about the freedom of medical professionals to exercise their best judgment, but also about the duty of institutions to ensure nondiscriminatory treatment of patients.  The decision strangely suggests that the doctors' religious freedom has been honored because they can continue to believe whatever they wish, even though they are prohibited from acting in accordance with those beliefs by not providing an infertility treatment to unmarried women.  And it proposes an inadequate way for the doctors' to align their actions with their beliefs:  they can simply refuse to provide the treatment to every woman.

But there is another sentence in the decision:  the doctors can avoid the conflict between their conscience and the sexual orientation nondiscrimination requirement by making sure that every patient wanting the treatment will receive "full and equal" access to the procedure through some other physician in the practice who does not object to performing it.  It seems, in fact, that the doctors did try to arrange for an alternative provision of the procedure but that the accommodation did not go smoothly because of an unintended mix-up.  A mountain was made out of that molehill.

Nevertheless, the sentence is important:  what is key is access to the procedure, not a requirement that every doctor must perform every procedure, including those to which they have deep moral and religious objections.  Good thing: surely we want our medical professionals to be motivated by high ideals and deep convictions.  But for this to be a realistic solution, something more is needed than this sentence.  Why must the referral be to some other doctor within the practice?  (Note the hint in the concurring opinion that a doctor with a religious objection who works alone should be able simply to refer a patient to some other practice.  What then about a faith-based practice in which all of the doctors have a conscientious objection to performing certain procedures?)

The state desires to root out sexual orientation discrimination.  But it is constitutionally bound to honor the free exercise of religion.  To accomplish both will require something more than putting clashes before judges.  The legislature ought to fashion a remedy (which might require amending the Unruh act). To honor doctors' religious objects while ensuring that patients have access to all legal procedures the legislature could place the burden of ensuring access elsewhere than on the medical practice itself:  on the state regulatory agency (to make sure that a diverse set of clinics is available in every geographic area), on the state itself (it must provide itself, or contract for, services that otherwise would be inaccessible), the health insurance provider (to ensure that such a service is available in the network or will be covered by an out-of-network clinic), or the employer (make arrangements to pay for the service if the insurer does not).  And even if the burden is on the medical practice, why shouldn't it be able to meet the access requirement by making a referral?

True, in all of these instances, the patient might not have instant and easy access to the desired service.  But why should that be the standard, if the only way of achieving it is by trampling on the constitutionally protected freedom of religion?

I'd like to see commentators and legislators give this unfortunate decision a very careful analysis and not just line up in favor of it or against it.