Does a doctor have a right to deny treatment to a patient because of her own religious views?

Or does a patient have a right to be free from what she sees as wrongful discrimination that consists of denying to her medical treatment that is provided to others?

The California Supreme Court, which two weeks ago ruled that the state constitution prohibits discrimination based on sexual orientation when it comes to the right to marry, this week confronted the question of whether gays and lesbians are entitled to similar protection in seeking medical care. Observers, judging from the questioning before the state's high court, are inclined to believe that the court will side with the rights of the patient.

Lupita Benitez, now 36 and, with her partner of 18 years, the mother of three children, brought the lawsuit against two Christian physicians in San Diego County who refused to inseminate her with donor sperm when she was trying to get pregnant in 1999. She claims that she was denied treatment afforded to other women because of the doctors' personal views about lesbians becoming mothers; attorneys for the doctors claim that it was the fact that Benitez wasn't married, not that she was a lesbian, that led the doctors to refuse treatment to her and that in any event, their religious views give them a right to deny treatment they don't approve of.

According to Justice Carol Corrigan, who voted against single-sex marriage two weeks ago but seemed to be siding with the lesbian plaintiff this time, the doctors were running a business, and if they didn't want to perform the services of that business, they should take up another line of work. Chief Justice Ronald George, who voted for same-sex marriage, said the issue was not whether doctors are required to perform certain procedures, but whether they could perform them selectively on some patients and not others. Justice George asked the doctors' lawyer whether treatment could be denied based on ethnic background.

No abortions for Catholics?

I don't think so. Inseminations for married women only? What gives the doctor the right to make that decision?

When I was in law school, there was one doctor on duty many afternoons in the school health services clinic, and he didn't believe in birth control, at least not for single women. So when young women went in with birth control-related problems, say bleeding from an IUD, he would refuse to treat them, and we (the Women's Law Association) would have to find a way to transport them to the Central Health Services. We went to the dean to complain, and he told us we weren't respecting the doctor's First Amendment freedoms. I hadn't taken constitutional law at that point, but it didn't make sense that his right to religious freedom allowed him to refuse necessary medical treatment to women. What about our rights? We took the issue to the Visiting Committee, a body of distinguished jurists and lawyers, to the great consternation of almost everyone who thought discussing gynecological issues so publicly to be supremely inappropriate, but then-Judge Shirley Hufstedler was the chair of the committee, and she got it right away. And yes, we got gynecological services.

So should Ms. Benitez.

Here is my answer to the question of whether doctors who don't believe in abortion should be required to perform abortions: You shouldn't become a gynecologist if you don't want to provide gynecological services, any more than doctors who adhere to Christian Science and disapprove of transfusions should become hematologists, although reasonable people certainly can disagree on that point. But the idea that doctors should be able to discriminate among their patients as to who gets services and who doesn't — based not on medical conditions or necessity, but on the doctors' views, whether religious or otherwise — is an effort to cloak discrimination with a claim to constitutional protection that it does not deserve.

To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.

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