A case is hitting the California Supreme Court about whether doctors can refuse to provide IVF or other fertility treatments for single women or lesbians for religious reasons.
Guadalupe Benitez filed a lawsuit against San Diego two doctors who refused to artificially inseminate her because, she alleges, she is a lesbian. Those doctors worked at the only facility covered by her insurance plan. So it wasn't like she could easily find another clinic after their refusal.
The doctors are now claiming they did not deny services based on Benitez's sexual orientation (which is illegal in California and several other states), but because she's not married. (Never mind that she lives with her partner of 11 years.) As if it's somehow better to discriminate on the basis of marital status than on the basis of sexual orientation? Yes, sadly, in most states, marital status is an acceptable reason for denying people medical services. Seriously. Ugh.
The court is being asked to decide how to accommodate a physician's religious views without violating California's anti-discrimination laws. [...]What distinguishes the case of Guadalupe Benitez is that the physicians involved refused to provide a medical procedure to one patient that they readily provide to others, says Jill Morrison, legal counsel to the National Women's Law Center, an advocacy group that works to protect women's rights in the workplace, schools, sports, and health care. "Usually, providers who object to certain services object to them for everyone: 'I won't provide contraception.' In this case, they don't object to the service, just the patient. You can't pick and choose. You can't say, 'I will perform it for white people, but not for black people.' "
I disagree somewhat. I know Morrison wasn't saying that refusing to provide contraception is ok, but that's sort of the implication. (Which is unfortunate, because the NWLC does a lot of good work around pharmacy access issues.) Of course, we can all agree it's bad to provide a service to one group of people that you refuse to provide to another group of people. But pharmacists who refuse to dispense contraception to women, then happily ring up condoms for men, are doing the same thing. Providing services to one group but not another. If that fairy-tale day ever arrives when they start selling hormonal contraception for men, I'd be shocked if there was the same level of pharmacist resistance to dispensing it.
Mother Jones has a more in-depth look at the Benitez case, and the larger issues it brings up. It asks, "Should there be a right to reproductive assistance?" And, following from that, "Should infertility be viewed as a medical problem?"
Says University of Wisconsin Law School bioethicist Alta Charo, “For many years infertility was not regarded as something sufficiently serious that it necessitated care. Treatment was discretionary, not necessary.� RESOLVE and other infertility rights groups have worked hard to change this, as have [Assisted Reproductive Technology] clinics. Yet defining ART as a medical treatment is a bit forced, because “if you use the classic situation of a fertile woman with an infertile male spouse, she never had a fertility problem to begin with,� notes Charo. A more logical line of reasoning might be to view her as having a social, not a medical, dilemma. She does not want to have sex outside her marriage -- that’s why she can’t get pregnant. Should society step in to help her? Should this be covered by insurance?To get around this dilemma, those in favor of greater access to ART like to position infertility as a disease of a couple -- a rather unconventional diagnosis. But even if “an infertile couple� gets under the umbrella of medicine, there’s no guarantee of particular services. “You have to start with the fact that in the United States of America, in terms of health care, with certain limited exceptions, you have a right to nothing,� says [Northeastern University legal scholar Wendy] Parmet. “If I want a hip replacement and I don’t have the money� -- be it through insurance or otherwise -- “I don’t get a hip replacement.� And, except for “certain no-no reasons,� Parmet notes, all doctors, including fertility clinicians, are free to choose whom they want to treat. “Anybody can deny me care because my name is Wendy, but they can’t deny me care because of my religion or my race.�
In some states, like California, where Benitez was seeking care, doctors also cannot turn patients away due to sexual orientation, even if the doctor’s objection stems from her own religious beliefs.
But that's the issue that the California Supreme Court will be examining shortly. The excuse that providing treatment violates the doctor's religious beliefs is one that's not only used against gay men and lesbians, but also single women. I love this quote from Benitez, which puts the whole religion angle into perspective,
"People ask me, 'Why are you doing this? You have your kids,' " she says. "I want to make a difference. These doctors are not God. They cannot manipulate who can have children and who cannot."
Amen to that.
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I live in California and used to practice discrimination law. Last time I checked, California also prohibited discrimination on the basis of marital status, at least in employment and housing (even if the landlord doesn't want to rent to folks who are just "shacked up" b/c of their religious beliefs). Hopefully, the Supremes will analogize to the housing cases and smack these doctors down.
Jill Morrison here-
Thanks so much for recognizing that I wasn't saying refusals are okay, only that this case is different from other types of refusal cases. Benitez has a MUCH stronger and straight forward discrimination claim and the "purity" of the alleged religious principle is much weaker. We actually helped a single woman who was refused IVF, and wrote about "who has the right to reproduce" at http://nwlc.blogs.com/womenstake/2007/07/who-decides-not.html.
So question to the law-types:
If they could deny someone because they were not married, but that person is in the only group of people that cannot get married, wouldn't it still be desciminating because they were gay?
Thanks for that, Jill!
Great question Ailea. The law is not logical the way you are. It is textual. For example: if the only people who get pregnant are women, why did we need an additional law to say that pregnancy discrimination is sex discrimination? I, like Katwoman7, hope that the Ca. Supreme Court will see that these docs' actions undermine the strong antidiscrimination principles established in other California laws and the prohibition on sexual orientation discrimination.
A lot of insurance policies cover diagnosis of fertility problems, but not treatment, unless that treatment also happens to be a corrective of some sort of "defect". So sometimes a couple is financially incented to go for a less effective (or less safe) procedure because that's the one that insurance will pay for.
Of course, this kind of gaming the system happens all over medicine, not just in fertility treatments.
Yet another reason why single-payer needs to happen in this country.
In response to Ailea - gay people CAN get married - just not to others of the same sex. Last year in Seattle, gay activist Dan Savage married a lesbian just to illustrate the stupidity of this situation. (Both have long-term same-sex partners whom they cannot legally marry, yet the law permitted them to marry one solely on the basis of possessing different sex organs.)
See, I just never understand what makes the religious credo sacred in a SECULAR heirarchy?
I'm tired of religious medical personnel being treated with deference, while pacifists in the army ar treated like shit.
Grr.
While I believe that no physician should be allowed to refuse a woman birth control, I think that it's a poor argument that "they still give men condoms! That's hypocritical!"
I have never heard of a pharmacist refusing condoms to a woman.
As for Viagra, it's one thing to need a pill to not get pregnant while having otherwise unprotected sex, and quite another to need a pill to be physically able to have sex at all.
I don't doubt that there is sexism to it, but the religious reasons for refusing to give birth control is that they believe it causes spontaneous abortion.
RE: This article: Fuck insurance companies.
"Yet defining ART as a medical treatment is a bit forced, because 'if you use the classic situation of a fertile woman with an infertile male spouse, she never had a fertility problem to begin with,' notes Charo. A more logical line of reasoning might be to view her as having a social, not a medical, dilemma. She does not want to have sex outside her marriage -- that’s why she can’t get pregnant. Should society step in to help her? Should this be covered by insurance?"
Now that's an interesting point. What about an otherwise-fertile unmarried woman who wants a child and doesn't want extramarital sex? Wouldn't she be practically as infertile as the married woman in the example? Could the expenses of attracting a husband count? Could just the medical ones count (for example, what if she's even hairier or flatter than me?)?
"For example: if the only people who get pregnant are women, why did we need an additional law to say that pregnancy discrimination is sex discrimination?"
I thought the idea was that:
All pregnant people are female
Not all female people have been, are, or will be pregnant
Therefore it's technically possible to discriminate against people for being pregnant without discriminating against people for being female. For example, a double standard with one standard for men and non-pregnant women and another for pregnant women.
"A lot of insurance policies cover diagnosis of fertility problems, but not treatment, unless that treatment also happens to be a corrective of some sort of 'defect'. So sometimes a couple is financially incented to go for a less effective (or less safe) procedure because that's the one that insurance will pay for."
Now I'm wondering what it would be like if health insurance did fully cover infertility treatments.
If an infertile couple wanted to have a child as effectively and safely as they could, and managed to use insurance to cover adoption proceedings instead of settling for hormone injections, maybe they'd have more money left over (or at least have less debt) to use in raising that kid...
"As for Viagra, it's one thing to need a pill to not get pregnant while having otherwise unprotected sex, and quite another to need a pill to be physically able to have sex at all."
From what I heard, a man who has erectile dysfunction is still able to have oral sex, and even still able to have anal sex if his sex partner is a man who doesn't have erectile dysfunction.
Thanks for commenting, Jill!
I shake my head in disbelief every time I hear something like this. I would love for someone to explain to me how homosexuals being legally married or raising a child will rip apart the moral fabric of our country or whatever the hell those kinds of people think. Just insane!
A bit off topic:
If insurance companies pay for infertility treatments (I believe they should - at least partially), should they also help with adoption expenses? Just curious as to what others think.
I just thought of something while enduring 10 minutes of some pro-life propaganda piece on WLNY New York 55 this morning. An MD talked about Doe v. Bolton defining health exceptions for abortion. He said that no one can dispute physical health exceptions but that a mental health exception gets into "subjective" territory. As a graduate student on her way to getting a Master's in mental health counseling, I was naturally outraged by this statement. The 4th edition of the Diagnostic and Statistical Manual of Mental Disorders is over 1,000 pages long, and I had to read most of it for my Abnormal Psychology class. Symptoms for each disorder are clearly outlined. To listen to this guy telling me and other viewers that mental health diagnoses are all subjective really enraged me. But it also got me thinking.
It seems like people who cry "ethics" in the, what I'm going to call, the physical health field, deny patients services based on their own, not the patient's, best interests. These doctors in California, doctors who refuse tubual ligations to women under age 30, OBGYNs and pharmacists who refuse to dispense birth control and emergency contraception, are telling us that THEY would feel uneasy. What about the patient? In the mental health field, counselors are definitely within their right to deny services from anyone who walks in the door. However, the ethical guidelines say that if you believe your biases would hurt the client's chances of getting better, you should not provide the service and refer the client to someone who can help them. The client getting better, not the counselor's peace of mind, is what truly matters.
I don't know about ethical guidelines for doctors who do reproductive health work on people. But if the law states that these doctors can discriminate based on their own feelings, then how can ethcial guidelines that aren't legally binding compete?
I'm actually rather conflicted about this one, which suprises me some.
So I'll play devil's advocate.
I agree that they were wrong for refusing her treatment over her sexuality. But I'm not sure that reproductive medicine should be held to the same legal standard on discrimination as everything else, as a matter of personal liberty. I don't see a compelling argument for why the ART doctors should be forced to help anyone regardless of the reason they would've rejected them, even if the reason is completely absurd.
"I agree that they were wrong for refusing her treatment over her sexuality. But I'm not sure that reproductive medicine should be held to the same legal standard on discrimination as everything else, as a matter of personal liberty. I don't see a compelling argument for why the ART doctors should be forced to help anyone regardless of the reason they would've rejected them, even if the reason is completely absurd."
That reminded me of this:
http://news.scotsman.com/uk.cfm?id=769122004
"GIRLS as young as 14 have sought fertility treatment on the NHS because they are so desperate to become pregnant, an expert said yesterday.
"Dr Jo Heaton, a fertility specialist, said she was astonished to be approached by a number of teenagers, exasperated that they could not conceive naturally after 'years of trying'..."
and *that* reminded me of *this*:
http://observer.guardian.co.uk/uk_news/story/0,6903,1153446,00.html
"...About a year later, the girl gave birth to a son. 'She worked in a factory in the north of England and though the whole south Asian community there knew she was married and had a son, despite being just 13, they didn't find it odd,' said Fatima...."
Which leaves me wondering, how many of these kids asking for infertility treatment are encouraged by exasperated families who do find it odd when they're not mothers at just 13?
I don't see a compelling argument for why the ART doctors should be forced to help anyone regardless of the reason they would've rejected them, even if the reason is completely absurd.
The problem with this is that a handful of doctors then get to decide who does and doesn't have children. Who make that decision for you if you are fertile and can get pregnant "traditionally"?
If this woman were to get pregnant, would it be ok for an OB/GYN to refuse her services because she's not married, gay, and received IVF to get pregnant? It's a slippery slope. If noone can tell you when and if to get pregnant "traditionally" and noone should tell you when and if you can get pregnant with IVF (health issues aside, in both cases).
As for 14 and 13 year olds requesting IVF (they can wait until 18 as far as I'm concerned), to me that is a completely seperate issue, and my comments refer to adults, not minors.
Mina - I was just thinking that an open thread on the weekends around here might be nice. You brought up an interesting topic and it would be nice to have a place to go to discuss such things without feeling like you are hijacking the thread (not that you did that, but I felt as though I might be when I asked about insurance covering adoption fees). Eh, just a thought.
"The problem with this is that a handful of doctors then get to decide who does and doesn't have children. Who make that decision for you if you are fertile and can get pregnant 'traditionally'?"
OTOH, couldn't someone else have a say too even if you are fertile?
I mean, a doctor who doesn't like the idea of someone having a baby could refuse to give her IVF and leave her struggling to find someone else.
Likewise, a fertile man who doesn't like the idea of someone having a baby could refuse to have unprotected sex with her (he could even refuse to have any sex with her at all) and leave her struggling to find someone else...
"Mina - I was just thinking that an open thread on the weekends around here might be nice. You brought up an interesting topic and it would be nice to have a place to go to discuss such things without feeling like you are hijacking the thread (not that you did that, but I felt as though I might be when I asked about insurance covering adoption fees). Eh, just a thought."
Yeah, that's one of the things that reminds me this is a blog and not a regular message board. Meanwhile, I guess the closest Feministing has to your suggestion is the Weekly Feminist Reader entry/thread.