Byline: The Register-Guard

In its second groundbreaking gay rights decision this year, the California Supreme Court has ruled unanimously that the First Amendment's protection of the free exercise of religion does not permit doctors to discriminate against gays and lesbians by refusing

The welcome ruling puts appropriate restrictions on the ability of California health care professionals to invoke so-called "conscience clauses" that allow them to withhold treatment to individuals based on moral or religious objections.

The California court's ruling is the first in the nation to address doctors' religious objections to treating gay or lesbian patients. It is sure to have an influence on similar legal disputes in other states.

The decision stemmed from a lawsuit filed by Guadalupe Benitez, a lesbian who sought to become pregnant by means of intrauterine insemination of donated sperm. Benitez said she took legal action after her physician, Christine Brody, insisted her religious beliefs prevented her from providing the procedure to a lesbian.

Brody denied that sexual orientation was the reason for her refusal. She maintained that she would not perform the procedure on any unmarried woman, heterosexual or homosexual. Nonetheless, attorneys representing Brody and her colleagues at a San Diego fertility clinic argued that the physicians had a religious right to refuse insemination for a lesbian couple.

California's highest court disagreed. Citing a state law that prohibits businesses from discriminating against customers because of their sexual orientation, the justices said doctors who have religious objections to a particular procedure or treatment can refuse to perform it for any patient, but can't selectively reject gays and lesbians.

In the unanimous opinion written by Justice Joyce Kennard, the court said, "Do the rights of religious freedom and free speech, as guaranteed in both the federal and the California constitutions, exempt a medical clinic's physicians from complying with the California Unruh Civil Rights Act's prohibition against discrimination? Our answer is no."

Abortion opponents and religious conservatives condemned the ruling, claiming it will force health care professionals to choose between "conscience and career." It's an argument that resonates with many who support the principle that no one should be compelled to violate their deepest convictions, especially if they arise from religious doctrine.

But it's an argument that is particularly problematic when it is applied to health care.

Conscience clauses made their unfortunate entry into the practice of medicine on the heels of the U.S. Supreme Court's 1973 Roe vs. Wade decision legalizing abortion. Recognizing the difficulty faced by some of the nation's religious health care practitioners and institutions - especially the large network of Catholic hospitals - Congress in 1973 passed a law sponsored by Sen. Frank Church of Idaho that allowed individual health care providers and institutions to refuse to provide abortion and sterilization services, based on moral or religious convictions.

The problem occurs when consciences with differing convictions collide, which is inevitable in this country's religiously pluralistic society. Women often find themselves denied access to legal, medically appropriate treatments in circumstances that can preclude the opportunity to obtain reasonable and timely alternatives.

Such denials are not hypothetical, as the Benitez case illustrates. Pharmacists have used conscience clauses to refuse to fill rape victims' prescriptions for emergency contraception. Physicians have invoked conscience clauses to refuse even to refer patients to doctors who will treat them.

Now, the Bush administration is proposing new regulatory language that could exponentially expand the denial of health care to women based on controversial redefinitions of pregnancy and abortion.

The American College of Obstetricians and Gynecologists has weighed in on this difficult topic with an ethics opinion that appropriately recognizes the competing interests. It says, "Although respect for conscience is important, conscientious refusals should be limited if they constitute an imposition of religious or moral beliefs on patients, negatively affect a patient's health, are based on scientific misinformation, or create or reinforce racial or socioeconomic inequalities."

The disastrous failings of the U.S. health care system to serve tens of millions of Americans ought to offend the conscience of every health care professional. This isn't the time to be spending energy expanding reasons to deny care to anyone.