Montana Debates Letting Doctors Refuse Care to LGBTQ Citizens

Health and Gender Policy Brief #157 | By: Caroline Howard | February 23, 2023

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Rep. Amy Regier, R-Kalispell, listens to debate on the floor of the Montana House of Representatives in Helena. Regier is sponsoring HB140 that would require doctors and nurses to offer patients seeking abortions to view a fetal ultrasound and listen to a fetal heartbeat. Patients aren’t required to take the ultrasound but they would have to sign a document saying it had been offered.

Photo taken from: Rachel Leathe / Bozeman Daily Chronicle

Policy Summary

The Montana House of Representatives recently debated and then passed a bill which is being referred to as a medical right of conscience law. This act, as the Montana Free Press put it, would allow “medical institutions, providers and other health care employees to deny services based on their ‘ethical, moral, or religious beliefs or principles’”. 

Among the concerns that have been raised if such a bill was passed and then implemented, was the possibility that a doctor, first responder, or any other medical professional or even insurance company could deny care for people that are a part of the LGBTQ community because it violates the religious conscience of someone working in that field. A transgender man named Ezekial Cork said in a testimony against the bill that, “If I’m in an accident or medical emergency, with a law like this in place, a medical care provider could raise the right of conscience card, disregard their Hippocratic oath, and refuse to treat me”.

The bill currently reads, “A health care institution or health care payer may not be required to participate in or pay for a health care service that violates the health care institution’s or health care payer’s conscience, including by permitting the use of its facilities”. Many advocates against this legislation say that the wording is vague enough that this will mean, if implemented, that LGBTQ citizens can also be denied care, even if they are currently dying in front of a medical professional, and need immediate care.

Policy Analysis

A bill like this brings up so many issues, including why someone becomes a doctor in the first place if they aren’t going to actually live by the hippocratic oath and serve anyone who needs help. 

Saying that any medical professional can just deny care because it goes against their conscience should be evidence enough that the person is unqualified to be in that profession. If this bill is passed and implemented, which is a long shot considering the varied potential legal challenges that await it if it is signed into law, LGBTQ Montanans will have less access to the life-saving medical care  they need, including mental health services.

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The Williams Institute reports that agencies in three other states — Michigan, Montana and Pennsylvania — have interpreted the state’s nondiscrimination laws to prohibit sexual orientation and/or gender identity discrimination in employment.

Photo taken from: Mercer (.com)

The reason there may be legal challenges is because of the Bostock v. Clayton County Georgia supreme court case that was decided in 2020. This case decided that sexual orientation and gender identity were inherently covered under Title VII of the Civil Rights Act of 1964. 

In the majority opinion, authored by Neil Gorsuch, it states clearly that, “Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII”.

What justice Gorsuch is saying is that discrimination of a person based on their gender identity or sexual orientation is inherently based on their biological sex. It makes sense, because someone who is seen as male wouldn’t be discriminated against if they were attracted to someone of the opposite sex. It inherently has to do with the biological sex of the person involved. 

Of course, legal interpretations are bound to change over time, as the Dobbs case did with Roe v. Wade; and maybe this bill intends to attempt to upend that precedent. With the new makeup of the court, it is very likely that a decision overturning Bostock v. Clayton County could take place, but in the meantime, a bill like this will very likely not take effect for a while as it is fought in the courts.

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