When Religious Belief Conflicts with Professional Obligation

Reply Sun 28 Sep, 2008 11:55 am
The California Supreme Court Rules That Fertility Doctors Must Make Their Services Available to Lesbians, Despite Religious Objections (By JOANNA GROSSMAN, FindLaw.com, Sept. 02, 2008)

Can a doctor in California offer fertility services to the public, but refuse to provide them to lesbian patients? In North Coast Women's Care Medical Group, Inc. v. Superior Court, the California Supreme Court said no, rejecting a constitutional challenge to the state's broad public accommodations law.

This case began with Guadalupe Benitez's desire to have a child. She and her female partner made many unsuccessful efforts at self-insemination, using sperm they had acquired from a sperm bank. Benitez later discovered she had a condition that caused her to ovulate irregularly. Accordingly, she was referred to the North Coast Women's Care Medical Group for fertility treatment.

Benitez and her partner met with Dr. Christine Brody at North Coast to discuss treatment options. During the meeting, Benitez mentioned that she was a lesbian. One of the options discussed was intrauterine insemination (IUI), a type of artificial insemination in which sperm is placed directly in a woman's uterus to increase the likelihood of conception. Though Dr. Brody explained the procedure, she told Benitez that she had a religious objection to performing it on an unmarried woman, and that she would refer Benitez to one of the other physicians in the group, who would be the one to perform the procedure. (Whether Dr. Brody's objection extended to all unmarried women, or only to lesbians, is a disputed issue of fact to be determined at trial on remand.)

After their initial meeting, Dr. Brody treated Benitez for infertility for nearly a year. She prescribed Clomid, a drug to induce ovulation, with the expectation that Benitez would follow up with further attempts at self-insemination at home. Dr. Brody also ran several tests on Benitez, to see whether there might be other causes of her infertility. Dr. Brody eventually recommended that Benitez move to IUI. Benitez tried one additional self-insemination, this time with sperm donated from a male friend directly (not through a sperm bank).

Benitez then sought to proceed with IUI, but using fresh sperm from her friend. Dr. Brody explained that, unlike frozen sperm, fresh sperm has to be specially "prepared" for insemination, and that physicians need a special license to do the preparation. Only one of the doctors in the practice, Dr. Douglas Fenton, had the requisite qualifications, but he, like Brody, had a religious objection to inseminating Benitez.

To make a long story short, Dr. Fenton referred Benitez to a doctor outside of their medical practice for further treatment. That doctor performed an IUI, which did not result in pregnancy, but later performed an in vitro fertilization, which did. While pregnant, Benitez sued North Coast and its physicians for discriminating against her on the basis of her sexual orientation.

California law offers broad protection against discrimination by business establishments, guaranteeing all persons in the state "full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." Though many states ban discrimination in so-called "public accommodations," California's Unruh Civil Rights Act, enacted in 1905, is broader than similar laws in other states in at least three notable ways:

First, most such laws protect primarily or only against race discrimination - having been designed to combat the Jim Crow laws of an earlier era, which reinforced patterns of segregation and replicated some of the effects of slavery by relegating African Americans to a second-class status in society. In contrast, the Unruh Act protects a wider variety of groups and individuals against arbitrary discrimination. The Act, in its current form, bans discrimination by business establishments on the basis of sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation.

Second, courts have held, and the California legislature has affirmed, that the list of protected characteristics in the statute is illustrative, rather than exhaustive. Before 2005, for example, the statute did not expressly protect against sexual orientation discrimination, but courts had ruled that such discrimination was covered anyway - because it was discrimination that fell in line with the kind of express examples of discrimination that the statute listed. In the Civil Rights Act of 2005, the California legislature affirmed these rulings and amended the statute to expressly ban sexual orientation discrimination. California courts have also interpreted categories broadly, ruling, for example, that the ban on "marital status" discrimination means that a business cannot refuse to treat a "domestic partner" as equal to a "spouse." (I have written about this case in a previous column.)

Third, when it applies, the Unruh Act has been applied strictly to invalidate virtually any attempt by a business to distinguish among people on the basis of the characteristics set forth in or impliedly covered by the statute. A car wash, for example, was told it cannot have a special discount for women on "Ladies' Day" because doing so discriminates on the basis of sex. This case, and others like it, tell us three things about the Unruh Act's scope: there is no de minimis exception; intent to discriminate is not a prerequisite to liability; and the guarantee of equal access applies not only to forbid exclusion of individuals on the basis of protected characteristics, but also unequal treatment within the business establishment.

In her lawsuit, Benitez alleged that North Coast and its doctors violated the Unruh Act by refusing to perform IUI because of their ostensible religious objections. (I say "ostensible" because it seems to me a tough sell to argue to a court that religious beliefs permit a doctor to use medication to spur hyperovulation - for the sole purpose of making artificial insemination work - but prevent her from performing the actual insemination.)

Does the Unruh Act cover doctors? By its terms, the Act applies to any business establishment that offers to the public "accommodations, advantages, facilities, privileges, or services." And prior cases have held that a medical practice that provides medical services to the public is a "business establishment" for Unruh Act purposes. So North Coast had little argument that it was exempt from the law. Moreover, North Coast's refusal to provide some patients with a service it otherwise provides would seem obviously to violate the guarantee of "full and equal" access. Thus, rather than basing its case on the claim that they did not fall within the law's reach, North Coast and its doctors proceeded, instead, with a constitutional challenge to the law.

In particular, North Coast and its doctors argued that it would violate the federal and state constitutional guarantees of freedom of religion and freedom of speech to force them to provide fertility treatments in this case. The California Supreme Court rightfully rejected their claims, holding that the Unruh Act could be enforced against North Coast and its doctors if, indeed, they engaged in sexual orientation discrimination (again, whether they did so is still a disputed issue of fact).

The court dispensed quickly with the freedom of speech claim, concluding that conducting an artificial insemination is not "speech" and that the law at issue would not stop the doctors from exercising their free speech rights by stating their objections to its use on an unmarried or lesbian woman. "For purposes of the free speech clause," the court wrote, "simple obedience to a law that does not require one to convey a verbal or symbolic message cannot reasonably be seen as a statement of support for the law or its purpose. Such a rule would, in effect, permit each individual to choose which laws he would obey merely by declaring his agreement or opposition."

The court dallied longer with the freedom of religion challenge, but ultimately reached the same conclusion. It relied on the U.S. Supreme Court's current interpretation of the free exercise clause of the First Amendment, as articulated in Employment Division v. Smith, which held that a "valid and neutral law of general applicability" need not justified by a compelling interest even if it "has the incidental effect of burdening a particular religious practice."

The defendants' fate in North Coast was essentially decided in 2004, when the California Supreme Court rejected a similar type of constitutional claim brought by Catholic Charities of Sacramento ("Catholic Charities"). Catholic Charities had argued that it was exempt from complying with the Women's Contraception Equity Act, a California law requiring employers who offer prescription drug coverage to include prescription contraceptive coverage. (I have written about the issue of contraceptive equity in a prior column.) Catholic Charities claimed that its religious mandate did not permit it to fund contraception. However, the California Supreme Court concluded that the burden on the employer's religious beliefs was only incidental and had been imposed pursuant to a generally applicable law (rather than one that targeted religion). Thus the California Supreme Court concluded, Catholic Charities had no constitutional right to refuse to comply with the law.

The California Supreme Court viewed the Benitez/North Coast case in a similar vein. The Unruh Act, it reasoned, is a "valid and neutral law of general applicability," which imposes only an incidental burden on a medical group and its doctors. It can thus be validly applied against them.

The Constitution, the Court concluded, gives doctors and medical practices no license to pick and choose whom to inseminate. That left the group with two choices: It could decide not to offer IUI at all, to anyone; or it could make sure it had a doctor on staff who was trained and willing to provide the service to all patients. Either way, the group and its doctors would be providing "full and equal" access to its services.

As many as six million Americans struggle with infertility, and medical intervention is often the only way to cure it. Yet, infertility is more than just a medical problem, and fertility treatment is more than just a collection of medical procedures. If fertility services are inaccessible, either because of the lack of a medical provider or the prohibitive cost, individuals can be deprived of the opportunity to become a parent. Parenting and choices about reproduction are imbued with constitutional significance in other contexts, yet we treat infertility as an unfortunate, private burden individuals suffer. And even those who are able to seek treatment for infertility may find that the physical effects and time-consuming nature of the procedures interfere with other significant aspects of life, such as work - and yet lack crystal-clear legal protection against being fired simply because, for instance, they must take time off for in vitro fertilization. (I have written about this issue in a recent column.)

The North Coast case highlights some of the broader issues that surround infertility. Generally, lesbians have significantly less access to fertility treatment than straight, single women or married women. Moreover, a surprising percentage of medical providers restrict treatment to married women alone, leaving out the group of women who most need their services. In the numerous states prohibiting gay marriage, this means that one kind of discrimination is then compounded by another.

In most jurisdictions, there is no law that would prohibit a medical practice from imposing a married-women-only restriction. There is no federal public accommodations law that bans discrimination on the basis of sexual orientation or marital status, and most states' public accommodations laws are not as broad as California's Unruh Act. And in at least one jurisdiction, a law that does ban sexual orientation discrimination by business establishments was held not to require fertility doctors to treat lesbian women. This California Supreme Court case is thus important for establishing a right of access that does not exist in most other places.

The restriction of fertility services to married women reinforces the inequality between traditional and non-traditional families. State support for heterosexual couples is, of course, generally much stronger than for gay and lesbian couples - as the longstanding battle for the right of same-sex couples to marry graphically illustrates. But permitting medical providers to restrict access to their services exacerbates this gap. For same-sex couples, access to reproductive technologies like IUI or IVF is essential to biological parentage. (Adoption is less often an option for same-sex couples because of applicable state or foreign laws.)

The North Coast ruling does not alleviate the many inequalities related to infertility. But it is a very good start. It seems right, at a minimum, to interpret public accommodations laws to insist that medical providers offer the same range of services to all of their patients, regardless of their sexual orientation. We should no more tolerate fertility doctors who refuse service on the basis of marital status or sexual orientation than we would tolerate a restaurant that served food only to whites.
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Type: Discussion • Score: 3 • Views: 12,378 • Replies: 137

Reply Sun 28 Sep, 2008 12:52 pm
Can a doctor in California offer fertility services to the public, but refuse to provide them to lesbian patients?

In many States in the US, pharmacists now have the legal right to refuse to fill any Rx for a method of birth control. While it may be the professional responsibility of the retail pharmacy in question, to fill the Rx, the pharmacist has the moral and legal right to refuse filling the request and is then required if service can't be provided, to direct the client to a suitable pharmacy/pharmacist for professional service.
Reply Sun 28 Sep, 2008 03:06 pm
Does the pharmacy then have the right to fire the pharmacist for not being able to perform the duties of the job (helping all customers)?

Reply Sun 28 Sep, 2008 03:12 pm
To me, that's what it comes down to. If you take on a job, it is your duty to follow company policy. The refusal to do so ought to result in getting fired, or at the least getting moved to a position that does not require serving customers. When my job requires that I do some things that conflict with my ethics I remind myself that it is the company doing this, not myself personally. There are limits which would cause me to quit or at least refuse to act, but nothing so dire has been requested of me.
Reply Sun 28 Sep, 2008 03:21 pm
Edgar- I agree. As much as I detest the idea, I think that a doctor or pharmacist working in a store or practice that he owns has the right to refuse service based on his ethical beliefs.

On the other hand, a medical professional working for a company that he does not own, IMO is obliged to service all.

I worked for a company that had certain regulations based on a religious viewpoint. At one juncture in my career, I had to decide whether I could no longer work there because of the conflict. After thinking about it for a long time, I decided that the good that I was doing was more important than the blankety blank regulations, and I stayed. (I also found creative ways of getting around the regulations).
Reply Sun 28 Sep, 2008 03:23 pm
rosborne979 wrote:

Does the pharmacy then have the right to fire the pharmacist for not being able to perform the duties of the job (helping all customers)?

The pharmacist has the legal responsibility to transfer care of the client to a pharmacist able and willing to fill the Rx.
Reply Sun 28 Sep, 2008 03:24 pm
Regulation Proposed to Help Protect Health Care Providers from Discrimination
(U.S. Department of Health and Human Services, August 21, 2008)

A new proposed regulation would increase awareness of, and compliance with, three separate laws protecting federally funded health care providers’ right of conscience. This proposed rule was placed on public display at the Federal Register today by the U.S. Department of Health and Human Services (HHS).

“This proposed regulation is about the legal right of a health care professional to practice according to their conscience,” HHS Secretary Mike Leavitt said. “Doctors and other health care providers should not be forced to choose between good professional standing and violating their conscience. Freedom of expression and action should not be surrendered upon the issuance of a health care degree.”

Over the past three decades, Congress has enacted several statutes to safeguard these freedoms, also known as provider conscience rights, and the proposed regulation would increase awareness of and compliance with these laws. Specifically, the proposed rule would:
Clarify that non-discrimination protections apply to institutional health care providers as well as to individual employees working for recipients of certain funds from HHS;
Require recipients of certain HHS funds to certify their compliance with laws protecting provider conscience rights;
Designate the HHS Office for Civil Rights as the entity to receive complaints of discrimination addressed by the existing statutes and the proposed regulation; and
Charge HHS officials to work with any state or local government or entity that may be in violation of existing statutes and the proposed regulation to encourage voluntary steps to bring that government or entity into compliance with the law. If, despite the Department’s efforts, compliance is not achieved, HHS officials will consider all legal options, including termination of funding and the return of funds paid out in violation of the nondiscrimination provisions.

“Many health care providers routinely face pressure to change their medical practice " often in direct opposition to their personal convictions,” said HHS Assistant Secretary of Health, Admiral Joxel Garcia, M.D. “During my practice as an OB-GYN, I witnessed this first-hand. But health care providers shouldn’t have to check their conscience at the hospital door. This proposed rule will help ensure that doesn’t happen.”

While it would strengthen provider conscience rights, the proposed regulation would in no way restrict health care providers from performing any legal service or procedure. If a procedure is legal, a patient will still have the ability to access that service from a medical professional or institution that does not assert a conflict of conscience. For example, the proposed regulation does not affect the ability of private clinics to provide abortion services in accordance with the law.

Congress has enacted three separate statutes to protect provider conscience rights. First, in the 1970s, the Church Amendments were enacted at various times in response to debates over whether receipt of federal funds required recipients to provide abortions or sterilizations. The Amendments also protected health care providers and other individuals from discrimination by recipients of HHS funds on the basis of their refusal, due to religious belief or moral conviction, to perform or participate in any lawful health service or research activity.

Second, in 1996, section 245 of the Public Health Service Act was enacted to prohibit the federal government and state or local governments that receive federal financial assistance from discriminating against individual and institutional health care providers, including participants in medical training programs, who refused to, among other things, receive training in abortions; require or provide such training; perform abortions; or provide referrals for, or make arrangements for, such training or abortions.

Third, the Weldon Amendment to the Department’s fiscal year 2005 appropriations act, and to subsequent years’ appropriations acts, prohibited the provision of HHS funds to any state or local government or federal agency or program that discriminates against institutional or individual health care entities on the basis that the entity does not provide, pay for, provide coverage of, or refer for abortion.

Despite this, many in the health care industry, and members of the general public, are unaware of these provider conscience rights. For example, an ethics opinion put forth several months ago by the American College of Obstetricians and Gynecologists appeared to disregard these laws. Subsequent action by the American Board of Obstetrics and Gynecology, which appeared to adopt the opinion, had the potential to force physicians to either violate their conscience by referring patients for abortions (or taking other objectionable actions) or risk losing their board certification. This case and others illustrate the need for the proposed rule to increase awareness of, and compliance with, the three statutes protecting provider conscience rights.
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Reply Sun 28 Sep, 2008 03:26 pm
Phoenix32890 wrote:

On the other hand, a medical professional working for a company that he does not own, IMO is obliged to service all.

As far as I can recall Walgreens has the policy in most , if not all of it's stores of allowing a pharmacist to transfer patient care to an individual who's religious beliefs do no prohibit the filling of the Rx.

The situation may vary with the specific retail pharmacy and whether it's a chain or only a small local cluster of stores.
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Reply Mon 29 Sep, 2008 09:57 am
Miller wrote:
WandelJW wrote:
Can a doctor in California offer fertility services to the public, but refuse to provide them to lesbian patients?

In many States in the US, pharmacists now have the legal right to refuse to fill any Rx for a method of birth control.

Speaking strictly as an interested layman in matters of law, I don't think the cases are comparable. The pharmacist "discriminates" against products in a portfolio, but doesn't directly discriminate against any particular customers: "I don't sell birth control pills, to anyone." This California doctor, by contrast, discriminates directly against persons: "I sell fertility services to her, but not to you, because I don't like your sex life."

The California Doctor case doesn't look to me at all like the case of Miller's pharmacist. This looks like something different. If America's state and federal constitutions require that restaurant owners serve drinks to blacks, it requires the California doctor to administer fertility treatments to lesbians.
Reply Mon 29 Sep, 2008 10:13 am

Thomas wrote:
Speaking strictly as an interested layman in matters of law, I don't think the cases are comparable. The pharmacist "discriminates" against products in a portfolio, but doesn't directly discriminate against any particular customers: "I don't sell birth control pills, to anyone." This California doctor, by contrast, discriminates directly against persons: "I sell fertility services to her, but not to you, because I don't like your sex life."

The California Doctor case doesn't look to me at all like the case of Miller's pharmacist. This looks like something different. If America's state and federal constitutions require that restaurant owners serve drinks to blacks, it requires the California doctor to administer fertility treatments to lesbians.

Good point, Thomas. The California fertility case involves discrimination. The attorneys for the fertility doctor claimed "religious freedom". However, the California Supreme Court held that the doctor's actions were in violation of California's equal accomodations law. Apparently, the equal accomodations statute was given more weight.

I also quoted a press release from the U.S. Department of Health and Human Services that points out that there are already three sets of federal regulations that protect the "conscience rights" of medical providers (when federal medicaid funds are involved). I wonder what weight patient rights have in the situations described by HHS.
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Reply Mon 29 Sep, 2008 10:18 am
In my opinion, the owner of the business should be able to set the rules. If a Muslim requires opportunity to pray during a time when he is needed to attend to his/her duties, he can be passed over in favor of somebody who does not need such time off work. If a Christian cannot reconcile his beliefs sufficiently to perform the assigned duties, the employer can pass over him/her in favor of somebody who has no such personal misgivings. Except in cases of physical handicaps or other conditions beyong the employee's control, I do think the wise employer imposes the same rules and expectation uniformly on all employees, but it would be his prerogative to allow one or more special accommodations based on a person's personal beliefs. Not smart. But his prerogative.
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Reply Mon 29 Sep, 2008 11:28 am
Proposed rule could cut access to medical care
(Arizona Daily Star Editorial, September 29, 2008)

Arizona has joined a dozen other states in fighting a proposed rule change the Bush administration is pushing that is so vague it could allow medical workers, including doctors and pharmacists, to cite their own religious or moral objections and refuse women access to birth control.

Arizona Attorney General Terry Goddard has done the right thing by signing the objection letter sent to the Department of Health and Human Services. The proposed rule has the potential to harm women seeking personal health care and it should be rejected.

The rule is framed as a protection for people working in any medical institution that receives federal money because it would allow medical workers to refuse to participate in abortions based on religious or moral reasons. Existing laws already allow health-care workers to refuse, on moral grounds, to provide abortions.

The proposed regulation would, according to the Department of Health and Human Services site, "increase awareness of, and compliance with, three separate laws protecting federally funded health-care providers' right of conscience."

As the department says, the laws are already on the books.

The regulation would require federally funded institutions to certify, in writing, that they will follow the three existing laws or risk losing funding.

In the proposed rule, the department states that "There appears to be an attitude toward the health-care professions that health-care professionals and institutions should be required to provide or assist in the provision of medicine or procedures to which they object, or else risk being subjected to discrimination."

Alarm bells should be clanging. This language could be interpreted as broadening the conscience objections beyond abortion to writing prescriptions for birth control or refusing to perform other, unspecified medical procedures. The vagueness of the language is an open door.

The department continues, "In general, the Department is concerned that the development of an environment in the health-care field that is intolerant of individual conscience, certain religious beliefs, ethnic and cultural traditions, and moral convictions may discourage individuals from diverse backgrounds from entering health-care professions."

The wording attempts to put an air of necessity on the regulation, saying that this alleged phenomenon of discrimination is especially grievous in the face of anticipated shortages of health-care professionals in many medical fields.

Instead, the administration's rule promotes another kind of shortage by allowing health-care professionals to willingly deny patients care, based not on medical advice but on worker's personal preferences.

If a woman is prevented from receiving medical care she seeks because the grocery store pharmacist decides not to fill the prescription, the net result is the same: A person who needs and has a right to medical care can't get it.

The effects could be particularly egregious in cases of rape when victims could be denied access to the morning-after pill or other health care.

The letter signed by the 13 attorneys general states, "The proposed regulation completely obliterates the rights of patients to legal and medically necessary health care services in favor of a single-minded focus on protecting a health care provider's right to claim a personal moral or religious belief."

This regulation could have devastating effects on women in rural communities, where if one provider refuses to prescribe contraception or perform a particular medical procedure there often isn't another office or store down the road.

Existing laws already protect medical professionals' right to refuse to perform abortions. This has been well-established. If the true intent of the administration is to promote awareness of existing laws, then it should sponsor a publicity campaign.

Additional regulation that could expand the ability of third parties to interfere with medical care is unnecessary and unacceptable.
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Reply Mon 29 Sep, 2008 03:09 pm
The pharmacist has the legal responsibility to transfer care of the client to a pharmacist able and willing to fill the Rx.

Suppose there is only one pharmacist working for the pharmacy? Does the pharmacist send the patient to another pharmacy? Then the pharmacist would be sending customers away. Sending them to his employer's competitor.

If I was the owner of a pharmacy and one of my pharmacists was unable to serve all my customers equitably, I would have to fire him.

Reply Tue 30 Sep, 2008 12:32 pm
Must doctors perform procedures they deem immoral?
(Christopher Leo, The McGill Daily, September 21, 2008)

A debate has arisen in Ontario that cuts to the core of staunchly held conceptions of morality and individual rights.

This summer, the College of Physicians and Surgeons of Ontario (CPSO) " the licensing body for doctors in the province " released a draft policy entitled Physicians and the Ontario Human Rights Code.

The document describes physicians’ current obligations to their patients under the Ontario Human Rights Commission (OHRC) regarding matters of discrimination and the accommodation of disabilities.

Causing concern among members of the Ontario Medical Association is the policy’s new code of conduct regarding a doctor’s personal, moral, or religious beliefs, and the impact such beliefs may have on decisions made within a professional capacity.

The central policy passage instigating the most intense ire states the new direction clearly. “Personal beliefs and values and cultural and religious practices are central to the lives of physicians and their patients. However, as a physician’s responsibility is to place the needs of the patient first, there will be times when it may be necessary for physicians to set aside their personal beliefs in order to ensure that patients or potential patients are provided with the medical treatment and services they require.”

The implications of this policy are that doctors who refuse to perform abortions, prescribe birth-control pills, or refer same-sex couples to a fertility clinic may be engaging in professional misconduct subject to disciplinary measures under the Ontario Human Rights Code, up to and including the loss of their license to practice medicine in the province.

A series of articles and commentary on the issue in the National Post this August prompted Dr. Preston Zuliani, president of the CPSO, to write a letter to the editor, which reads, “All services that doctors provide...are [already] subject to the obligations of the Human Rights Code.”

“If physicians feel they cannot provide a service for [moral or religious] reasons, the draft policy does expect physicians to communicate clearly, treat patients with respect, and provide information about accessing care.”

Zuliani is correct. Public health care is funded by our government and by taxpayers. Ever since the Supreme Court of Canada’s decision in R. v. Morgentaler (1988), our country is one of only a few worldwide with no legal restrictions on abortion, just like none exist on birth control, or for same-sex couples, and so on.

While it is well within the purview of each individual to decide his or her personal beliefs, the fact is that doctors are performing a public service in a public sphere, and therefore should not be able to deny taxpayers those services that the government has deemed legal, acceptable, and medically necessary.

The vital question is this: to what extent should a doctor’s personal, moral, and religious beliefs affect the professional decisions he or she makes in the performance of a public service? Should a Jehovah’s Witness doctor be allowed to refuse the provision of a life-saving blood transfusion? What happens when a young woman in a small rural town seeks an abortion referral from her local doctor and is denied? Should doctors be held responsible for this invocation of personal moral beliefs that could have a negative impact on a patient’s life?

An examination of access to abortion services in Atlantic Canada illustrates just how important these new recommendations are. A detailed study released in the summer of 2007 by Canadians for Choice showed that in Nova Scotia, only four out of 30 hospitals offer the procedure; Labrador and P.E.I. hospitals offer no abortion services; Newfoundland has three hospitals that will perform the procedure; and in New Brunswick, strict regulations mean that a woman seeking an abortion must obtain two testimonials from doctors willing to say it is medically necessary before she can proceed.

In many instances, researchers who contacted Atlantic hospitals about abortion services were greeted with personnel largely unfamiliar with their abortion policies who failed to provide referrals if no doctor at the hospital performed the procedure.

While the Supreme Court has deemed there should be no legal limits on abortion in this country, the health care sectors of many provinces still make it difficult for a woman to exercise personal choice in this matter. It is sobering and shameful that 20 years after R. v. Morgentaler, women all across this country still remain vulnerable to such discrimination.

Canada is not alone in examining this issue. On August 18 of this year, when a medical clinic in California refused to artificially inseminate a woman in a same-sex relationship, the Supreme Court of California ruled that the rights of religious freedom and free speech do not exempt a physician from compliance with the state’s Civil Rights Act’s prohibition against discrimination based on sexual orientation.

Undoubtedly, if the new draft policy of the CPSO is successfully implemented, the effects will be far reaching. Medical schools in the province will need to talk more openly about the procedure and teach it to more students, and physicians providing medical services will have to be especially careful that the way in which services are rendered complies with all provisions in the Ontario Human Rights Code and does not constitute grounds for discrimination.

There is no real legal precedent in place in Canada regarding the balancing of patient-physician rights. In this way, the draft policy of the CPSO is setting up new territory for the courts to define how best to balance freedom of conscience and religion with equality rights.

This issue goes far beyond abortion. Just as the separation of church and state helps to ensure respect of personal beliefs and equality of rights, so too must we respect the rights of patients to receive publicly funded medical services without discrimination from those individuals paid to provide them.
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Reply Thu 2 Oct, 2008 09:06 am
HHS Reviewing Comments On Provider 'Conscience' Rule, Including EEOC Criticism
(MedicalNewsToday.com, October 2, 2008)

HHS recently announced that it is reviewing the "higher than usual number of comments" made during the 30-day public comment period on a draft regulation that would allow health care providers who receive federal grants to opt out of care they object to based on moral or religious grounds, BNA Health Care Daily reports.

Among the comments received by HHS was a letter from the Equal Employment Opportunity Commission calling on HHS to "revoke" the proposal or "at a minimum" specify that the proposal would not change current jurisprudence on Title VII of the 1964 Civil Rights Act, which ensures an employee's right to the accommodation of religious practices. "For over 40 years, federal courts have been interpreting Title VII's prohibition on religious discrimination, resulting in a robust body of jurisprudence centered on the balance between employees' rights to religious freedom and employers' business needs, consistent with the mandates of the Establishment Clause of the U.S. Constitution," EEOC's letter says, adding that HHS' proposal "could throw this entire body of law into question."

The letter, signed by EEOC commissioners Stuart Ishimaru and Christine Griffin, says that the regulations could violate the Establishment Clause by giving preference to particular religious beliefs, and it could nullify businesses' ability to show an "undue burden" on its needs. "The lack of clarity on the interplay between the regulations and the Title VII religious analysis will result in profound confusion and extensive litigation and will be especially burdensome to small businesses," the letter says.

If the regulation becomes law, it would cost more than $44 million annually to enforce and would require 584,294 federally funded medical entities and their staff to certify compliance or face disciplinary and/or punitive penalties. The public comment period on the proposal ended Sept. 25.
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Reply Thu 2 Oct, 2008 10:12 am
You could hold the Rx until the shift changed and allow the next pharmacist to fill the Rx.

Independent pharmacies are distinct from retail, chain pharmacies.
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Reply Thu 2 Oct, 2008 10:47 am
In this particular situation, I don’t think the doctor was in the wrong " as long as an alternative doctor was suggested what is the harm? And would you want some one providing a medical procedure if they did not believe in it? I think in this case the doctor was sensitive to the patient’s desire.

I think in this case, the law is discriminating against the doctor’s rights for their religious beliefs. I think sometimes common sense should rule " in this case, the woman was not denied medical treatment, but offered an equal doctor as a substitute (assuming the suggested doctor had the same credentials). I am however; in favor of ensuring a medical practice have a doctor in place that would provide such a service to lesbians. But then the question would arise if this was a single doctor practice.

Could there be an age discrimination as well? I know doctors that refuse to tie the tubes of women under the age of 40?
Reply Thu 2 Oct, 2008 11:37 am
The case occurred in California which has a state law regarding equal accomodation that applies to all businesses. The California Supreme Court decided that the state law had greater weight than the doctor's religious freedom. In order to get around the law, the doctor would need to refuse fertility treatment to ALL patients, not just one category (this was considered to be discrimination in violation of state law.)
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Reply Sun 5 Oct, 2008 09:36 am
Stop the undeclared war on family planning services
(By JEFFREY R. LEWIS, Opinion Essay, Atlanta Journal-Constitution, September 30, 2008)

One in seven Americans currently is living without health insurance. That’s 45.7 million people, equivalent to the combined populations of California and Ohio. With our nation in the middle of a health care crisis, one might expect the Bush administration to be working with Congress to ensure health care access for American families who are struggling to make ends meet. Instead, it is creating new roadblocks to health care that could deny millions of men and women access to mainstream family planning services and contraception.

The administration has proposed a new set of regulations that it says will protect doctors, nurses and health care workers who object to abortion from having to participate in providing care they find objectionable. The new conscience clause will require health care agencies and clinics to certify that they will not discriminate against individuals or organizations that refuse to offer " or even provide referrals to " family planning services that disagree on personal, moral and religious grounds.

If workers or organizations declare that the pill, intrauterine device (IUD) or emergency contraception are contrary to their beliefs, they can deliberately withhold both services and information from patients. The proposed regulation affects any hospital, clinic, doctor’s office or pharmacy that receives federal funding, directly or indirectly, from the U.S. Department of Health and Human Services.

The new rule is a carefully crafted ruse to obstruct public access to contraception methods that are used by more than 37 million American women and men to act responsibly, stay healthy and plan for strong families.

Federally funded comprehensive family planning programs " such as those implemented by states, municipalities and community health centers " could start refusing to offer women and men education on responsible sexual behavior and access to contraception.

Comprehensive family planning programs have helped low-income families get the education and contraception they need to act responsibly. They prevent an estimated 1.3 million unplanned pregnancies and 630,000 abortions each year. Every dollar spent on them saves an estimated $4.02 in pregnancy-related and newborn care costs to Medicaid.

These health centers also provide screenings for HIV/AIDS and other sexually transmitted infections, identifying thousands of cases that would otherwise go undetected and untreated. And they address women’s broader health needs by conducting millions of breast screenings and Pap tests. Over two decades, they have detected 55,000 cases of invasive cervical cancer, saving lives and money.

By law, federally funded services cannot provide abortion. What they provide is age-appropriate sex education, counseling and contraception that are effective in preventing unplanned pregnancies and the need for abortion.

A look past the lofty rhetoric reveals a policy guided by ideology, not science, and an aggressive, 11th-hour attempt to redefine contraception as abortion " an extremist view that few Americans in either party support.

The real target of the new rule is mainstream contraception " the pill, IUDs and emergency contraception " all of which have been deemed safe, effective and legal. None of these methods cause abortion by any scientifically accepted definition of the term.

The rule would directly affect the 37.3 million Americans living in poverty who can’t afford the cost of contraception, especially those who live in small communities where federally funded hospitals or clinics could refuse to support comprehensive family planning.

It would affect all Americans, because the federal government sets the standard for private health care benefits and practices. The new rule is so vaguely written that hospital systems, HMOs and insurance programs could refuse to fill prescriptions or provide coverage for the pill and IUDs.

Health providers could refuse emergency contraception to victims of rape or incest, compounding the trauma of sexual violence. And they could refuse to educate men and women about the safe and legal methods of contraception that have prevented 20 million unintended pregnancies and averted 9 million likely abortions during the past two decades.

The administration quietly has made the first move in a new, undeclared war on contraception " a war that is tragically out of step with the will of the American people.
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Reply Wed 8 Oct, 2008 07:14 pm
State AG opposes 'conscience' rule
(By CHRIS DETTRO, Peoria Journal Star, September 21, 2008)

SPRINGFIELD " The Illinois attorney general is objecting to a proposed federal regulation she says would limit women's access to birth control and other reproductive health services.

A top official in the office said the proposed rule "appears to be a politically motivated definition of abortion."

However, the Bush administration says the "provider conscience" proposal is designed to protect medical and health-care workers who object to abortion from being forced to deliver services that violate their personal beliefs.

The rule would let federal health officials pull funding from institutions such as hospitals and doctors' offices if they don't let employees refuse to participate in care they find objectionable on personal or religious grounds.

Predictably, conservative groups, abortion opponents and others support the regulation. Women's health and family planning advocates and abortion rights activists are among those who oppose it, saying it could create problems in obtaining a variety of services, including abortion and family planning.

The rule could go into effect after a 30-day comment period, which will end Thursday. The U.S. Department of Health and Human Services is expected to decide on the proposal later this fall.

"This proposal would put politics above access to critical health-care services," said Madigan, who urged state legislators to comment against the regulation as well. "At a time when so many Americans are struggling to find affordable health care and millions of women need access to family planning services, this proposal would severely limit women's ability to obtain needed reproductive health care."

Gov. Rod Blagojevich also wrote HHS Secretary Michael Leavitt on Friday opposing the rule.

"This proposed rule is not about providers' consciences, it is about restricting access to health care to those in need," Blagojevich wrote.

Paul Gaynor, chief of the public interest division in the attorney general's office, said the rule would "interfere with women's access to health care in Illinois and across the country."

"It appears to be a politically motivated definition of abortion that is subjective based on personal beliefs," he said.

The regulation apparently would allow pharmacists, doctors, nurses and others to refuse to provide birth control pills, Plan B emergency contraception and other forms of contraception. It also would let workers withhold information about those services and let them refuse to refer patients to another provider.

"It is needed," said Douglas Johnson, legislative director for National Right To Life. "We've had a growing pattern in many states of healthcare providers being persecuted for their personal beliefs. They have been threatened with loss of livelihood if they don't participate in abortions."

"The coercion comes, in many instances, from government officials," he said.

The rule "merely seeks to protect the rights of the provider to choose. It doesn't force anybody to do anything," Johnson said.

Illinois requires pharmacies to fill prescriptions for the "morning-after" pill. The state rule doesn't require pharmacies to stock Plan B, but it does require pharmacies to order the medicine if a patient requests it.

The rule was challenged in Sangamon County Circuit Court in 2005 and was upheld both there and in the 4th District Appellate Court. The case currently is before the state supreme court.

The two pharmacy owners who challenged the rule - Luke Vander Bleek of Morrison and Glenn Kosirog of Chicago - say pharmacies are protected by the Illinois Health Care Right of Conscience Act. State officials contend that pharmacies and pharmacists aren't covered by it.

"We've worked hard to get that (state) rule, and this literally wipes that away," said Pam Sutherland, vice president for public policy for Planned Parenthood of Illinois. "It gives them complete right of refusal."

Madigan says the proposed HHS rule, which would cost more than $44 million to implement, would allow each health-care practitioner to broadly define abortion according to personal beliefs. It would permit them to opt out of providing reproductive care services, including many common forms of birth control such as intra-uterine devices and Plan B emergency contraception, if it conflicts with their personal beliefs.

She said the proposal also conflicts with several Illinois laws that require insurers to cover approved contraceptive drugs and devices; require emergency room personnel to provide emergency contraceptive services to victims of sexual assault; and require pharmacies to fill prescriptions for contraception.

But Francis Manion, one of Vander Bleek's attorneys, said nothing in the regulation prevents any organization from providing any type of care.

"It doesn't change anybody's ability to get birth control pills," he said. "People seeking legally prescribed drugs will still be able to get them."

He said the regulation is aimed at enforcing federal laws on the books since the 1970s that were aimed at protecting doctors who did not want to perform abortions following the U.S. Supreme Court's Roe vs. Wade decision.

"It codifies and puts a little more teeth in laws that have been on the books for years," Manion said.

Sutherland, on the other hand, said the proposed rule leaves interpretation open to any health care provider.

"This could define ordinary birth control to be against a pharmacist's moral judgment," she said.

The Illinois Coalition Against Sexual Assault also opposes the regulation.

"Rape victims should be allowed to get emergency contraception, because getting pregnant is one of a rape victim's greatest fears," said Sean Black, communications director for ICASA. "They shouldn't have to go searching in a million places for it."
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