This op-ed originally appeared in the Orange County Register on April 30, 2007.

Doctor is sued for declining to create an out-of-wedlock pregnancy

It wasn’t that long ago when liberals, to their credit, fought for freedom of conscience. For decades, they spoke up, in public and in court, for the rights of workers whose religious convictions prevented them from working on the Sabbath; for American Indians whose religious rituals involved the use of peyote; and for young men whose religious scruples forbade them from taking up arms, no matter how urgent the country’s military needs. In each instance, liberals rose to defend the religious freedom of small and sometimes despised minorities.

That was then. This is now.

The California Supreme Court will soon decide a religious-liberties case called Benitez v. North Coast Women’s Care Medical Group, et al., and liberalism appears to be suffering from constitutional amnesia.

Guadalupe Benitez, who is unmarried but has a gay female partner, in 2000 sought North Coast’s assistance in becoming pregnant. The clinic, through the assigned physician, Dr. Christine Brody, attempted to help Benitez by giving her a procedure that did not directly involve insemination; Brody has religious objections to pregnancy and childbirth outside marriage. The treatment failed, and Benitez asked Brody to undertake a more invasive procedure, intrauterine insemination, in which the doctor directly injects the sperm, bringing about a pregnancy.

On religious grounds, Brody declined. However, another North Coast physician referred Benitez to an outside specialist in intrauterine insemination, and North Coast agreed to pay any extra cost involved by virtue of the fact that the specialist was not covered by Benitez’s health insurance plan.

With the specialist’s assistance, Benitez became pregnant and now has a healthy son. Nonetheless, Benitez has sued North Coast and Brody, asserting that they discriminated against her because of her sexual orientation, in violation of California law. Brody and North Coast have responded that their actions are protected by the Free Exercise Clause of the U.S. and California constitutions. The American Civil Rights Union has filed a friend-of-the-court brief on their behalf.

No fair-minded person supports invidious, state-sponsored discrimination against people because they are gay. But Brody and her clinic are not agents of the state, and they have strongly held religious beliefs. Those beliefs – shared by millions – are that pregnancy and childbirth outside marriage are morally wrong. No one doubts the sincerity of Brody’s principles, and no sensible person doubts the mounting evidence that families without fathers harm children in numerous ways, including increased risk of academic failure, economic disadvantage and likelihood of involvement in crime.

In the world that liberals used to inhabit, this would be an easy case. Benitez may indeed have felt diminished by Brody’s religiously-based decision. But in a country that takes religious liberty and freedom of conscience seriously – to the point of having enshrined them in the Constitution – Benitez’s feelings and putative rights, however worthy in other contexts, are outweighed by the founders’ wisdom.

The liberals of yesteryear would know this. Their support for the doctrine of conscientious objection proves the point. If, as liberals passionately (and successfully) have argued, the free exercise of religion requires that religious pacifists be exempt from military service even in wartime, then surely it requires that Brody and others who share similar beliefs be exempt from creating an out-of-wedlock pregnancy that would grossly affront their religion.

The social cost of the pacifist’s decision is considerable: it is likely to increase resistance to military service in times of national emergency, and some other young man will be required to take the pacifist’s place in battle, risking death. The social cost of Brody’s decision is small by comparison.

If the free exercise of religion is to have any real operational meaning, if it is ever to have the power to enable a sincerely religious person to resist the power of the state, the California Supreme Court has only one route to take – to protect Brody’s freedom of conscience, liberal amnesia and all.