Medical Association Withdraws Brief in Dispute Over Doctors’ Religious Refusal to Inseminate Lesbian

Wednesday, September 21, 2005

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Medical Association Withdraws Brief in Dispute Over Doctors’ Religious Refusal to Inseminate Lesbian

By a MetNews Staff Writer

The California Medical Association has withdrawn its amicus brief supporting two North San Diego County doctors who are being sued for refusing to artificially inseminate a lesbian.

The association acted so as to dispel suggestions that it had abandoned its long-held opposition to discrimination based on sexual orientation, CMA attorney Susan Penney told the MetNews yesterday.

“We have never taken a position on the facts of the case,” Penney said, but filed the brief merely to argue that the case should be decided on the basis of the legal standards that were controlling at the time the physicians acted. While CMA has tried to make that position clear to the public, it “remained misunderstood,” leading to the decision to withdraw the brief, Penney said.

The Court of Appeal last week granted the CMA’s withdrawal request, saying it would treat the position stated in the previous brief as “abandoned” but would allow the brief to remain on file. The court denied a request by Kaiser Permanente, joined by the CMA, to file an amicus brief in support of the plaintiff with respect to the issue of whether the doctors are entitled to a constitutional exemption from state anti-discrimination laws.

The case, North Coast Women’s Care Medical Group, Inc. v. Superior Court (Benitez), D045438, is scheduled for argument Oct. 11 in San Diego.

The case is before Div. One for the second time, on the doctors’ petition for writ of mandate after Superior Court Ronald Prager granted summary adjudication rejecting their claim to a constitutional exemption.

In its previous ruling, it said that a different Superior Court judge erred in finding Lupita Benitez’s suit against North Coast Women’s Care Medical Group to be preempted by the Employee Retirement Income Security Act.

North Coast, located in Vista was, at the time Benitez went there, the sole provider of obstetric and gynecological services in Northern San Diego County for members of Benitez’s ERISA-governed employee health plan.

Benitez alleged in her complaint that she had been through 11 months of infertility treatments at North Coast, and was preparing to undergo artificial insemination there. She said she told her doctor, Christine Z. Brody, that she was a lesbian.

Brody, according to the complaint, told Benitez she was willing to continue overseeing her treatments, but would not perform the insemination procedure because she had a religious objection to impregnating a lesbian.

Benitez alleged that she agreed to this arrangement, although she was upset by it, but that when the time to perform the procedure approached, she was told that no one at North Coast would do it. She was eventually referred to an out-of-plan physician, she said, at a cost of several thousand dollars.

The insemination procedure was unsuccessful. Benitez had a child three years ago, through in vitro fertilization.

She pled numerous causes of action against North Coast and its doctors. In addition to alleging she was denied services on the basis of sexual orientation, in violation of the Unruh Civil Rights Act, she claimed breach of express and implied contract, bad faith, and infliction of emotional distress.

She also accused Brody of invading her privacy by noting on her chart that she would “require donor sperm” because she “has never been with a male partner,” after Benitez said she did not want her sexual orientation noted.

In addition to the ERISA argument, the doctors said the suit threatened their “religious liberty.”

In agreeing to hear the merits of the writ petition, the court instructed the parties to brief both the religious exemption question and the issue of “[w]hether a doctor can accommodate his or her religious beliefs and satisfy his or her nondiscrimination obligations by referring a patient to another qualified physician and paying any additional costs incurred by the patient as a result of the referral?”

The court further asked the parties to address the impact of three cases—Catholic Charities of Sacramento, Inc. v. Superior Court, (2004) 32 Cal.4th 527, Smith v. Fair Employment and Housing Comm’n (1996) 12 Cal.4th 1143, and Koebke v. Bernardo Heights Country Club, 05 S.O.S. 3597, which was decided Aug. 1.

Catholic Charities held that a state law requiring certain health insurance and disability plans that provide coverage for prescription drugs to pay for contraceptives does not violate the First Amendment rights of employers who provide employee health coverage but are religiously opposed to contraception.

Smith held that property owners with religious objections to cohabitation were not exempt from the Fair Employment and Housing Act’s ban on marital discrimination, with respect to an unmarried couple’s attempt to rent an apartment. Koebke held that a country club was required to extend to registered domestic partners the same privileges it grants to married couples.