Bench Memos

NRO’s home for judicial news and analysis.

Point-Counterpoint (Or, Left-Coast/Right-Coast)


The California Supreme Court opinion in North Coast Women’s Care Medical Group is as bad as Andy McCarthy said (on Tuesday, here) it is. North Coast is the very recent case which held that a doctor’s religious objection to inseminating a lesbian with donor sperm was no defense to the lesbian’s civil rights claim to be free of “sexual orientation” discrimination. The opinion is weak in the superstructural ways Andy identifies; it badly misreads relevant precedent and botches basic legal doctrine. The decision is, in other words, suffused by shoddy legal reasoning.

These mistakes rest upon an even worse infrastructure. The engine pulling the shoddy train of reasoning is the court’s moral judgment that eradicating all traces of “discrimination” against gays and lesbians is a “compelling state interest” which outweighs any and, evidently, all countervailing considerations.  The court does not derive this judgment from conventional legal sources. Nor could it. The court nonetheless declares it to be what Trekkies would call a “prime directive,” or what Dworkinians would call an ace of a “trump.”  According to this freshly minted uber-norm, even if the service this lesbian plaintiff desired was freely available from every other doctor in California, the defendant physician could still not be exempted from performing it, even where religious conviction required him or her to refuse. That is what “full and equal” access to medical care entails — according to the California Supreme Court. 

Yesterday –  and as if on cue –  the Department of HHS released for public comment detailed regulations which are powered by the opposite moral judgment.  “Many health care providers routinely face pressure to change their medical practice — often in direct opposition to their personal convictions,” the HHS spokeswoman said yesterday, announcing the regulations. “But health-care providers shouldn’t have to check their conscience at the hospital door. This proposed rule will help ensure that doesn’t happen.”

Seems to me that there a very good debate question is now teed up for the Presidential candidates.

Here’s the HHS announcement, with a link to the proposed rule at bottom of page.


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