Grossman on California fertility treatment case

by on September 3, 2008  •  In Reproductive rights

Following is the analysis by Joanna Grossman (Hofstra, visiting at Vanderbilt) of the California Supreme Court's ruling that a physician's religious beliefs could not justify denying fertility treatment because of a patient's sexual orientation  (North_Coast_Womens_Clinic_v_Superior_Court ) [my previous post here]:

FindLaw's Writ


…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. … 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 [intrauterine insemination] 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.

Access to Fertility Treatment: An Important, but Neglected Issue

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. …

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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