Media Commentary
January-June, 2004

Project Report
2001-01

Freedom of
Conscience
Recognized

Eternal Vigilance
is the Price of
Conscience
 Protection

Ethics profiling
 in health care

14 May, 2004

The Editor,
Western Standard Magazine
#205 - 1550, 5th Street SW
Calgary, Alberta
Canada T2R 1K3

Dear Sir:

Should doctors be forced to abandon their faith? by Terry O’Neill draws attention to the problem of freedom of conscience in health care.

A bit of history is instructive. The first protection of conscience clause debated in the House of Commons was introduced by M.P. Robert McCleave as an amendment to the Omnibus Bill that legalized abortion in Canada in 1969. Mr. McCleave believed that abortion should be legalized, but also believed that ‘freedom of choice’ should be extended to health care workers.

Compare Mr. McCleave’s notion of ‘choice’ with that espoused by Joyce Arthur. Speaking for the "Pro-choice Action Network," she refuses to respect the choices of health care professionals who do not wish to participate morally controversial procedures. She seems to believe that freedom of conscience is a problem to be solved by abolishing it, at least in the case of those who don’t agree with her. Arthur’s position is doubly ironic, since Henry Morgantaler justified his defiance of Canadian abortion law in a 1970 article titled, A Physician and His Moral Conscience.¹

Referral is not a satisfactory solution for many physicians who have grave moral objections to a procedure. Objecting physicians hold themselves morally culpable if they facilitate an abortion by referring a patient for that purpose. Nor is this an unusual view. Consider the controversy in Canada over the deportation and torture of Maher Arar. This suggests that few believe that one can avoid moral responsibility for a wrongful act by arranging for it to be done by someone else.

Certainly, Joyce Arthur does not consider abortion to be a wrongful act. However, she has not explained why others should be forced to abide by her moral views.

Unfortunately, between the writer’s desk and publication, a couple of factual errors were introduced into the story.

In the first place, the Project followed the case from the outset, and the student was provided with the same kind of service extended to others in similar situations. His relationship with the Project has been cordial, but it is incorrect to describe me as "a friend of the would-be doctor." We have never met.

More important, the final paragraph attributes to me statements that I did not make. While I am, nonetheless, in agreement with a number of the points made, I did not suggest that a devout Muslim doctor might refuse to treat women, nor make any statement to a similar effect.

It would be most unfortunate if this falsely attributed statement were to contribute to the already adverse social pressures experienced by Muslims in North America. Muslim health care workers and students are welcome to contact the Protection of Conscience Project. One of the Project advisors is Dr. Shahid Athar, a regent and former vice-president of the Islamic Medical Association of North America and the Chair of its Medical Ethics Committee.

Sincerely,

(Sean Murphy)
Administrator

Notes (for editorial verification)

1. The article appeared anonymously in The Humanist. Quoted in Pelrine, Eleanor Wright, Morgantaler: The Doctor Who Couldn’t Turn Away. Canada: Gage Publishing, 1975, P. 79 [Back]

Project Letter to the Editor,
Journal of Obstetrics &
Gynaecology (Canada)
14 May, 2004

Project Letter to the Editor,
Journal of Obstetrics &
Gynaecology (Canada)
8 August, 2005

Postcript for the Journal
of Obstetrics and
Gynaecology Canada:
Morgentaler vs.
Professors Cook and Dickens

The Editor,
Journal of Obstetrics and Gynaecology
780 Echo Dr.,
Ottawa, Ontario
Canada K1S 5R7

Dear Sir/Madam:

Rebecca J. Cook and Bernard M. Dickens state, "Physicians who feel entitled to subordinate their patient’s desire for well-being to the service of their own personal morality or conscience should not practise clinical medicine"¹ (Emphasis added).

The statement is unsupported by their own legal references, and it has little to recommend it as an ordering principle in the practice of medicine.

In their original article² and in their response to a letter from Dr. Howard Bright³ the authors purport to ground their advice in law and in ethics. But the only case cited to support the claim that courts continue to demand referral is a 23 year old case from the Alberta Court of Appeal. Moreover, referral was not even discussed in Zimmer,⁴ which addressed the failure to obtain informed consent to silver nitrate sterilization, and failure to provide adequate follow-up care.

Their second legal claim, that the fiduciary duties of physicians require them to subordinate their conscientious convictions to those of their patients, rests upon a more recent Supreme Court of Canada case. But McInerney⁵ had absolutely nothing to do with conflicts of conscience. It concerned the duty of a physician to release a patient's medical records upon request. While the court noted that the fiduciary relationship between physician and patient obliged the physician to disclose the records, the nature of fiduciary relationships was not discussed at length.

Moreover, the Supreme Court ruled that fiduciary relationships and obligations are "shaped by the demands of the situation"; they are not governed by a "fixed set of rules and principles". Mr. Justice La Forest, writing for the court, stated,

"A physician-patient relationship may properly be described as‘fiduciary’ for some purposes, but not for others."⁶

In other words, the physician patient relationship is fiduciary for the purpose of disclosing patient records, but that does not imply it is fiduciary for the purpose of suppressing the conscientious convictions of the physician.

Finally, the court in McInerney accepted the characterization of the physician-patient relationship as "the same . . . as that which exists in equity between a parent and his child, a man and his wife, an attorney and his client, a confessor and his penitent, and a guardian and his ward."⁷ Yet no one has ever suggested that the fiduciary obligations of parents, husbands, attorneys, confessors, and guardians require them to sacrifice their own integrity to the "desires" of others.

Neither case cited by Cook and Dickens supports their claims, and McInerney arguably contradicts them. What of their reference to ‘transcendent ethical duties’?

Dr. John R. Williams is now Director of the Ethics Unit of the World Medical Association. He was Director of Ethics for the Canadian Medical Association in 2000, when he advised the Protection of Conscience Project that the CMA’s policy of mandatory referral for abortion was dropped because there was no ethical consensus to support it.⁸

As to the conclusions they draw from monozygotic twinning and cloning, Cook and Dickens fail to understand that these processes prove nothing about the individuality of the original zygote. If one zygote becomes two through the process of regulation, it does not mean that the first zygote was not an individual.^{9, 10} More to the point, it was clear from the context of Dr. Bright’s letter that he was putting in issue the moral significance of the existence of the early human embryo, something quite distinct from the vitality of sperm or ova. The distinction cannot be evaded by the meticulous refinements suggested by Cook and Dickens.

The beliefs of many conscientious objectors, while ‘personal’ in one sense, are actually shared with tens of thousands, or even hundreds of thousands or hundreds of millions of people, living and dead, who form part of great religious, philosophical and moral traditions. If theirs is a ‘private’ morality, the morality that Cook and Dickens are attempting to impose is not less so. Nor can its imposition be justified because it is achieved by "building momentum" rather than "lobbying", the distinction between which the authors leave unclear.

One hopes that future contributions to the Journal on the subject of freedom of conscience will have more of substance to offer its readers.

Sincerely,

(Sean Murphy)
Administrator

1.  Cook RJ, Dickens BM, "In Response". J.Obstet Gyanecol Can, February, 2004; 26(2)112 [Back]

2.  Cook RJ, Dickens BM, Access to emergency contraception. J. Obstet Gynaecol Can 2003;25 (11):914-6 [Back]

3.  Bright, H. Access to emergency contraception [letter]. J. Obstet Gynaecol Can 2004; 26(2)111  [Back]

4.   Zimmer v. Ringrose (1981), 124 Dominion Law Reports (3d) 215 (Alberta Court of Appeal) [Back]

5.  McInerney v. MacDonald (1992), 93 Dominion Law Reports (4^th) 415 (Supreme Court of Canada) [Back]

6.  Recalling an earlier case (Canson Enterprises Ltd. v. Boughton & Co. [1991] 3 S.C.R. 534) [Back]

7.  Quoting LeBel, J. in Henderson v. Johnston, [1956] O.R. 789 at p. 799. [Back]

8.  Telephone conversation between Dr. John R. Williams and the Project Administrator, April, 2000 [Back]

9.  O'Rahilly R, Muller F. Human embryology and teratology. New York: Wiley-Liss; 2001. p.37  [Back]

10.  Carlson BM. Human embryology and developmental biology. St. Louis: Mosby;1999. p. 49 [Back]

Calgary Co-operative
Association
Re: Maria Bizecki

Mr. Robert J. Remington,
Assistant Editorial Page Editor,
The Calgary Herald

Dear Mr. Remington:

While I am pleased to see that Laura Wershler is willing to accommodate freedom of conscience among health care workers, I must correct some misleading statements included in her article ("The morning after: Pro-life agenda misrepresents the emergency contraceptive pill, or ECP",Calgary Herald, 13 February, 2004).

In the first place, http://www.consciencelaws.org is the URL of the Protection of Conscience Project, not "Repression of Conscience". Contrary to Ms. Wershler’s assertion, this is a non-denominational human rights project, not a not a pro-life initiative. Pro-lifers are interested in the Project and sometimes link to our website, but the Project does not take a position on the morality of controversial procedures. It is enough to recognize the controversy, and advocate the accommodation of conscientious objectors. At least one pro-life pharmacist does not use the Project pamphlet about the morning-after pill precisely because the pamphlet does not argue against its use.

Second, Ms. Wershler’s article incorrectly attributes to the Project the use of the terms "abortion drug" and "emergency contraceptive (ECP)". The Project does not use either term, except when quoting other sources. They are confusing, and complicate articulation of freedom of conscience issues.

"Abortion drug" is an appropriate description of mifepristone (RU486), which is designed specifically to cause the abortion of an embryo that has implanted in the uterus. The morning-after pill has not been designed for that purpose, and does not act in that way.

"Emergency contraception" is a fabulously successful marketing term. However, 94% of the women who take the morning-after pill do not require it to prevent childbirth. This statistic, provided by the drug’s advocates¹, belies the notion of ‘emergency’ that is often used to browbeat conscientious objectors. As to "contraceptive", Ms.Wershler herself acknowledges that these drugs have three mechanisms of action, one of which may prevent implantation of the early embryo, thus causing its death. This is considered by many conscientious objectors to be the moral equivalent of abortion, a term acknowledged as appropriate by some authorities,² though the usage is not uncontested. The Project refers to these drugs generically as the ‘morning-after pill’ because this term is widely understood. We describe the morning-after pill as "potentially abortifacient", in the sense that it may cause the death of the early embryo, but does not necessarily do so.

A final note to prevent further confusion: the meaning of ‘abortifacient’ in a medical or scientific context is not the same as its meaning in a moral context. In a medical context, a drug that prevents fertilization (acts contraceptively) 95 to 99 times out of a hundred would be called a contraceptive rather than a abortifacient. But in a moral context, when the outcome may be death, a drug may be treated as an abortifacient if there is even a 1% chance of it killing the embryo by preventing implantation. A number of disputes that arise about the morning-after pill are a regrettable consequence of failing to recognize these distinctions.

Sincerely,
 

(Sean Murphy)
Administrator

Notes (for editorial verification)

1.  Apply a calculator to the following statement: "In 16 months of ECP services, pharmacists provided almost 12,000 ECP prescriptions, which is estimated to have prevented about 700 unintended pregnancies." Cooper, Janet, Brenda Osmond and Melanie Rantucci, "Emergency Contraceptive Pills- Questions and Answers". Canadian Pharmaceutical Journal, June 2000, Vol. 133, No. 5, at p. 28.

2.  Keith L. Moore and T.V.N. Persaud, The Developing Human: Clinically Oriented Embryology (6th ed.) (Philadelphia: W.B. Saunders Company, 1998), p. 532. Quoted in Irving, Diane N., A "One-Act Drama:The Early Human Embryo:'Scientific' Myths and Scientific Facts:Implications for Ethics and Public Policy, Medicine and Human Dignity." International Bioethics Conference, 'Conceiving the Embryo', Centre Culturel, Woluwe-St. Pierre, Brussels, Belgium: October 20, 2002 (9:30 A.M.)(Revised 23 October, 2002) Note 23.  http://www.consciencelaws.org/Examining-Conscience-Issues/Background/GenScience/BackGenScience04.html

For Professionals:
pharmacists

Pro-life pharmacist
 thought she'd
be blacklisted

Pharmacy colleges
quash
conscientious objection

Report Faults
Pharmacists' Ethics
Committee

Stonewalling Leads
to Call for New
Freedom of
Information Law

Freedom of Conscience
 and the Needs
of the Patient

In Defence of the
New Heretics:
A Response to Frank Archer

Issues of Concern
in Pharmacy Practice:
The Morning After Pill
(Pamphlet)

Testimony of
Pharmacist Klubertanz

Testimony of
Mary A. Kalver

Testimony of
 John T. Dunlop, M.D.

Testimony of
Cynthia
Jones-Nosachek, M.D.

Testimony of
Leah Vukmir

Testimony of
Pharmacist Noesen

Testimony of
Pharmacist Grosskreuz

Police Used to
Intimidate Objecting
Pharmacist

It was a risky stand against the prevailing view of pharmaceutical professional associations, and employers retailing drugs. Yet,  ultimately it led to a small step forward for Albertans' religious freedom.

The Alberta College of Pharmacists (ACP), for instance, her profession's ethics watchdog, emphasizes a client's right to have pharmaceutical needs met. It grants conscience leeway to its members, though this did not save Bizecki from facing complaints about her stand.

More particularly, the conscience clause is little help to pharmacists dealing with unsympathetic employers.

The letter one Pro-Life Ontario pharmacist got from his boss (quoted in the Pro-Life paper, Interim) eloquently expresses the all-business perspective: "You are not employed by the company to make moral or philosophical decisions about whether birth control is appropriate for the customer . . . we are engaged in a retail activity."

The letter concluded with a threat of termination, noting that if the pharmacist couldn't separate his beliefs from his job, he  should "think long and hard about whether you could continue in your capacity."

Co-op was comparatively gentle. Bizecki had been straightforward with them about her views, and was known in the community as a pro-life activist. She was suspended with pay.

She doesn't talk about the complaints which led to her being investigated by the ACP; the details are subject to her duty of confidentiality. Still, when in 2000, a pro-choice website challenged the conscience rights of pharmacists, the prompt arrival of the first complaint was no surprise.

The situation was a pickle of contending rights and obligations.

Obviously, if a prescribed drug is legal, a client has a right to buy it, and a druggist to sell it. But, only the wilfully blind wouldn't admit honest people can sincerely disagree over abortion. As employees are not mere instruments of an employer's will, but have a right of conscience, even an obligation, how does one loosen the tangle?

One way is to choose. When human rights commissions do so, religious freedoms sometimes lose. The case of a Catholic school board
compelled to allow a gay student to bring his boyfriend to a prom, is illustrative.

The other way is negotiation. It took nearly three years for Bizecki's lawyer, Gerry Chipeur, the college and Co-op to work it out, but there was a happy ending. That is, something which worked for everybody, and it serves as a useful template.

The reasonable accommodation of Bizecki's principles was a written agreement in which she recognized the public's right to have a  prescription filled by a pharmacist, and that she could not and should not obstruct it. But, employers have a duty to reasonably accommodate employee scruples, and Co-op agreed not to demand she fill prescriptions for drugs which effect abortions. Thus, with the college's blessing, she would always be part of a two-person dispensary.

Chipeur adds this might not be a reasonable accommodation for a one- person pharmacy: "However, in Canada employers have always had a duty to be reasonable, so long as there's no undue burden. This is the first time that I'm aware, that there has been such an accommodation. If there's a similar breakdown in Alberta in the future, it would be unwise for any health employer to not accommodate a pro-life position. I'd just say this to pro-lifers: Don't take a job in an abortion clinic and then say you don't want to do abortions."

What distinguishes this case from some of the head-on rights collisions we've seen in Canada, is that the parties would accept a solution, not hold out for a victory. Canada aspires to be a tolerant country.

This is what tolerance looks like.