Healthcare worker "conscience clause" expanding

| Wed Dec. 14, 2005 11:51 AM EST

In the latest case reflecting the healthcare worker "conscience clause" movement, a California appeals court has ruled in favor of doctors who refused to artificially inseminate a lesbian patient. Guadalupe Benitez filed a sexual orientation discrimination suit against the physicians at a women's clinic in San Diego for refusing to artificially inseminate her in 2000.

The details of the case are complex. The plaintiff says that when she first went to the clinic, the doctor she saw told her she could not inseminate her because her religious beliefs did not permit her to perform such a procedure on a gay person. According to Benitez, the doctor told her there was another doctor in the clinic who could perform the procedure. Benitez then underwent almost a year of tests, exams, and surgeries, only to be told she could not be inseminated at the clinic because of the religious beliefs of all of the staff members.

One of the pending legal questions is whether Benitez was denied the procedure because she was a lesbian or because she was unmarried. California law protects citizens from discrimination by businesses on the basis of sexual orientation, but not on the basis of marital status. The doctors' attorney is claiming that the decision was based on Benitez's marital status, but the plaintiff's attorney confirms that Benitez was told that the procedure could not be done because of her homosexuality.

The appeals court ruled in favor of the doctors on the grounds of protecting religious liberty.

Meanwhile, throughout the country, pharmacists continue to refuse to sell certain products to women because of the pharmacists' religious beliefs. Arkansas, Georgia, Mississippi, and South Dakota have passed laws allowing pharmacists to refuse to dispense emergency contraceptive drugs. Arizona, Arkansas, California, Georgia, Indiana, North Carolina, Rhode Island, South Dakota, Tennessee, Texas, Vermont, West Virginia, and Wisconsin have introduced legislation that would allow pharmacists to refuse to provide services. Only three states--Missouri, New Jersey, and West Virginia--have introduced legislation that would require pharmacists to fill prescriptions.

Emergency contrapceptive pills contain high doses of of the hormones that are found in regular contraceptive pills. Emergency contraceptives can delay ovulation and prevent fertilization, and--in some cases--prevent implantation. Wal-Mart led the way by refusing to sell emergency contraceptive pills, and then other retail outlets followed by giving their pharmacists the option to use a conscience clause to opt out of filling ecp prescriptions.

It isn't just emergency contraception that is being denied women, however. Pharmacists who are opposed to any artificial means of birth control are using the conscience clause to refuse to fill regular birth control prescriptions. Aside from the obvious fact that birth control pills, patches, and devices are legal in the United States, birth control pills are also prescribed to treat certain disorders, such as irregular menstrual periods, acne, endometriosis, and severe premenstrual syndrome. Women whose mothers or grandmothers had ovarian cancer may be given birth control pills to protect them from the disease.

And finally, though condoms are frequently sold at the pharmacy counter, we do not hear about American pharmacists' refusing to sell them, nor do we hear about an expansion of the conscience clause that would permit checkout staff to refuse to ring up condom purchases.