Later On

A blog written for those whose interests more or less match mine.

Religion and providing healthcare

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Interesting article by Vikram David Amar and Alan Brownstein, which begins:

Health care providers who are also religious individuals are sometimes directed by state law — or by their public or private employer — to do things that conflict with their religious beliefs. This situation creates a difficult choice: The worker can comply with the religious tenets of his faith, risking civil sanction and perhaps the loss of a job; or he can obey the requirements of secular authorities, but in so doing violate his own conscience.

This series of columns focuses on two recent developments that bring into sharp focus this conflict, and the interesting and complex legal questions that are raised about whether exemptions from law or employer mandates should be granted to health care workers faced with divergent obligations from God and Caesar.

The first of these is a case handed down by the California Supreme Court a few weeks ago. North Coast Women’s Care Medical Group, Inc. v. Superior Court involved a civil rights lawsuit brought against physicians who were alleged to have discriminated against a lesbian patient who sought a fertility treatment from their clinic. The physicians (unsuccessfully) asserted a legal right to be exempt from a requirement that they refrain from sexual-orientation discrimination. The second is the federal Department of Health and Human Services (HHS)’s recent proposal of regulations (45 CFR Part 88) designed to protect health care workers from being coerced into violating their religious beliefs. We will discuss the HHS regulations in a column two weeks from now.

The North Coast Women’s Care Medical Group Ruling: The California Supreme Court Sidesteps the Question of the Rights of Religious Believers Once Again

The defendants in North Coast argued that they should be granted an exemption from the anti-discrimination provisions of California’s Unruh Civil Rights Act (which prohibits discrimination on the basis of sexual orientation) if their refusal to provide certain fertility treatments to lesbian patients was grounded on their religious convictions. The trial court rejected that defense, and the California Supreme Court affirmed this decision, holding that neither the federal nor the California Constitution mandates a religious exemption from the Unruh Act’s prohibitions in the context of medical services.

We think cases like this one require a careful, thorough evaluation of the competing interests at stake. Unfortunately, the California Supreme Court did not provide such an analysis in its opinion.

It has been 18 years since the United States Supreme Court decided Employment Division v. Smith – in which the Court ruled that the federal Free Exercise Clause does not protect religious individuals or institutions against neutral laws of general applicability. Yet in all that time, the California Supreme Court has not decided — despite clear opportunities to do so — whether the California constitution’s Free Exercise provision provides greater protection to religious practice than its federal counterpart. Regrettably, the court failed to decide that question in North Coast as well. (One of us, Alan Brownstein, has repeatedly co-authored amicus briefs, including one in North Coast, urging the court to resolve this question, and to do so in favor of applying a more rigorous standard of review to laws that burden religious exercise than Smith requires.)

The Court Asserts the Religious Believers Would Lose Even Under Strict Scrutiny Review – But Then Fails to Meaningfully Examine What Strict Scrutiny Would Mean Here

In North Coast, the California Justices avoided determining the appropriate standard of review applicable in state Free Exercise cases by making two arguments. First, the court asserted that, even assuming for purposes of argument that the highest possible standard of review — strict scrutiny — applied to free exercise claims by religious believers, the state’s justification for denying religious exemptions in this case would satisfy that standard of review.

The problem with this argument is …

Continue reading.

Written by Leisureguy

13 September 2008 at 9:22 am

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