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  WINDY CITY TIMES

Couple charges HMO violated California law
by Deb Price
2003-02-26

This article shared 3769 times since Wed Feb 26, 2003
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After eight years together, Lupita Benitez and Joanne Clark decided to fulfill the dream of bringing children into their family.

But as Lupita, then 27, began trying to become pregnant through artificial insemination, the San Diego couple discovered that she had a fertility problem. Undeterred, the couple sought treatment from the one clinic permitted under Lupita's health plan.

For 11 months, Lupita's HMO doctor gave her fertility drugs. Eventually, the doctor concluded that at-home insemination wasn't working and that a more complicated medical procedure would be needed. However, because Lupita is gay, both that doctor and the clinic's other available physician refused to provide the treatment. They said that inseminating a lesbian would violate their religious beliefs, both sides agree in legal papers.

"I was in tears," recalls Lupita. "They told me: 'You are a lesbian. So you need to go somewhere else.'"

Forced to go outside their HMO network, the couple paid thousands of dollars to get Lupita the care her medical plan was supposed to cover. The good news is that Lupita soon become pregnant. And now the couple has a 12-month-old son.

But they still haven't gotten over the shock of how the HMO clinic dealt with Lupita.

"We knew discrimination was out there, but it had never crossed our path," Joanne explains.

Because they don't want other gay people to experience such humiliating mistreatment, they've fought back by filing a lawsuit charging that the HMO's doctors violated California's civil rights law.

Especially in this age of managed care, when more and more workers and retirees have a limited choice of doctors, the couple's case could have profound implications for every gay American: In the absence of a federal law prohibiting anti-gay bias by businesses and service providers, can any of us who're gay rely on having fair access to health care?

California is one of 12 states that have attempted to protect gay people from discrimination in public accommodations, meaning businesses can't refuse to serve someone simply because of his or her sexual orientation. (In addition to California, the states are New Hampshire, Vermont, New York, Massachusetts, Connecticut, Rhode Island, New Jersey, Hawaii, Wisconsin, Minnesota and Maryland.)

Unfortunately, however, a California lower court judge ruled that the federal Employment Retirement Income Security Act of 1974 trumps state law when it comes to any case involving employee benefit programs. If that is upheld, a state would be powerless to protect its citizens even from, say, an HMO oncologist refusing to treat lesbians with breast cancer.

Anti-gay bias is far from uncommon: A 1994 survey by the Gay and Lesbian Medical Association found that most of its members had seen peers turn away gay patients or give them inferior treatment.

The San Diego couple, whose lawsuit is believed to be the first to challenge doctors claiming a religious right to refuse to inseminate lesbians, has taken their case to an appeals court.

Obviously, the cure for the health-care discrimination that gay people are now suffering is for Congress to outlaw it nationwide.

In the meantime, the court weighing the couple's appeal has an opportunity to send a strong signal to doctors that they must abide by civil rights laws. That would arm other courts to do the right thing in states with similar gay-rights laws.

The California court also needs to join the judicial chorus that has repeatedly stressed that, in the world of goods and services, religious beliefs aren't a legitimate excuse to ignore civil rights laws.

"It's important for society to recognize the difference between the business world and religious worship," notes attorney Jennifer Pizer of Lambda Legal Defense and Education Fund. "The fact that this has to do with reproductive health doesn't make it religion, either. A doctor can say, 'Based on my religious beliefs, I will not perform an abortion on anyone.' But a doctor can't say, 'I will not perform it based on who you are.'"

Our courts and lawmakers should ensure that no one receives inferior health care simply because of whom they love.

Deb Price of The Detroit News writes the first nationally syndicated column on gay issues and is the co-author of "Courting Justice: Gay Men and Lesbians v. the Supreme Court." To find out more about Deb Price and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate web page at www.creators.com .

COPYRIGHT 2003 CREATORS SYNDICATE, INC.


This article shared 3769 times since Wed Feb 26, 2003
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