Protection of Conscience Project
Protection of Conscience Project
www.consciencelaws.org
Service, not Servitude

Service, not Servitude

"NO MORE CHRISTIAN DOCTORS"

Appendix "F"

THE DIFFICULT COMPROMISE
Canadian Medical Association, Abortion and Freedom of Conscience


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CMA and abortion law reform

The Canadian Medical Association was one of the groups that supported the legalization of abortion. However, when the law was passed in 1969, its Code of Ethics still described abortion as "a violation both of the moral law and of the criminal code of Canada, except when there is justification for its performance." According to the Code, abortion was justified only when "continuance of pregnancy would imperil the life of the mother."1

1970 revision of the Code of Ethics

In 1970 CMA delegates approved the first major revision of its Code of Ethics in 50 years. It did not mention abortion because, said the chairman of the ethics committee, "we consider it to be like any other surgical procedure."2

However, the new Code did include the following statement, obviously made necessary by the legalization of abortion:

Personal morality
15. An ethical physician will, when his personal morality prevents him from recommending some form of therapy which might benefit the patient, acquaint the patient with these factors.3

Increasing abortion rates and increasing controversy

As in other countries, legalization of abortion was followed by a dramatic yearly increase in abortion rates which continued, in Canada, for a decade.4 (Appendix "D1": Figure D1.2.1 ) CMA delegates approved abortion for "non-medical social grounds" in 1972, and by 1974 it had become clear that most abortions were being performed for "non-medical - social, psycho-social or socioeconomic - reasons."5

The broadened grounds for abortion and continuing increases in the abortion rate increased the likelihood of conscientious objection to the procedure.  It also brought raging controversy. In 1975 the CMA Director of Communications disclosed that the Association was being inundated with letters about abortion from physicians and the public,6 one of which expressed realistic pessimism about the situation:

[T]he CMA is composed of physicians who hold strongly opposing opinions on the morality of therapeutic abortion. Consequently, it will be impossible to find a compromise that will satisfy all members of the association.7

Contrary to the smug assertion made by the chairman of the ethics committee five years earlier, it had become obvious that abortion was not "like any other surgical procedure."8

Delegates at the 1976 Alberta Medical Association annual general meeting saw a need to reaffirm its policy that "no pressure be applied against physicians or hospitals that do not conduct abortions," which suggests that such pressures were being felt.9 Certainly, there is evidence in the professional literature of the period from the United States and the United Kingdom that collisions were occurring between those demanding the provision of abortion and those refusing to provide them.10

1977 revision of the Code of Ethics

In June, 1977, the CMA General Council, the governing body of the Association, revised Section 15 of the Code of Ethics, which, seven years earlier, had introduced the requirement that physicians notify patients of "personal" moral beliefs that might prevent them from recommending a procedure.

The Council’s discussion seems to have been long and emotional.11 The revised version stated:

15. An ethical physician, when his personal ethic prevents him from recommending some form of therapy will so acquaint his patient and will advise the patient of other sources of assistance.12

It is not clear whether or not the revision was presented to and approved by the annual general meeting following the General Council sessions, since the Canadian Medical Association Journal report of the AGM the following month described it as "uncontroversial meeting by the standards of some CMA annual gatherings," with only "mild discussion" of contentious topics.13

In any case, it soon became obvious that the revision had made things worse. In January, 1978, blaming "incorrect mass media news stories" for "spreading confusion," the CMA’s hapless Director of Communications had to issue a clarification.

The Code of Ethics does not require a physician whose personal morality prohibits him from counselling, recommending or arranging an abortion to refer a patient seeking that service to a physician who will definitely, without question, provide the service desired. Indeed, such action would be contrary to the intent of the Ethics Committee that proposed the change. . .

Prior to the June 1977 meeting of General Council, a physician with a conflict of interest (professional vs personal interest position) because of his personal morality, was required to inform the patient, and nothing more. The Ethics Committee recognized that,on occasion, this could result in a patient being (de facto) abandoned - a result that was not in keeping with the tenets of the profession. The intent of the change was to place responsibility on the physician, not only to inform the patient of the conflict of interest created by his moral position, but also to help the patient find other sources of assistance.

The physician might refer the patient to a colleague without such a conflict of interest, to a social agency, to a clergyman for religious counselling, to all three or to other sources of assistance. The revised section of the Code of Ethics does not suggest or state that he must refer the patient to a colleague who is in favour of abortion on demand. Indeed, CMA policy clearly opposes such an approach. The Association has encouraged physicians to bring unbiased professional judgement to bear on each individual case. He should avoid the simplistic role of dispenser of a service desired or thought to be desired, by the patient.14

The attempt at clarification did not help. The revised policy continued to be highly divisive, generating "confusion and dismay" within the Association.15 The focus of much of the concern was the apparent intention to force objecting physicians to become morally complicit in abortion by facilitating the procedure:

If we are required by the code of ethics to direct our patients to other sources for obtaining an abortion, I believe the physician is, in fact, condoning the abortion and is therefore in contravention of his own personal morality. This means that a physician with a conscience is asked to select for the patient a person he possibly regards as a murderer, and this is a great, if not greater, offence to his conscience than if he did the deed himself. With the current publicity given to abortion facilities I do not believe it is necessary to torture our colleagues in this way.16

. . . No patient has the right to anything other than what a physician can in his conscience do. To ask for more is to ask for his cooperation in performing an act that he deems an act of killing an innocent human being. . . I find it intolerable that the CMA is telling me I may not follow my conscience in this most serious matter.17

The accusation of "abandonment" was strenuously rejected as at least an exaggeration, and as an injustice,18 and the illusion of moral neutrality ridiculed:

. . .we are told to bring "unbiased professional judgement to bear on each individual case." How can there be an unbiased position in this situation? The only stance that could approach an unbiased position is to have no moral conviction and assume "the simplistic role of dispenser of a service", a position we are told to avoid. . . .19

 These arguments were supported by the Newfoundland Medical Association, which passed a resolution to that effect "because many physicians might have moral and religious objections to passing their patients on as well as to recommending abortions themselves." The Ontario Medical Association also expressed reservations about the provision.20

1978: revision rejected, wording restored

The problem was brought to the meeting of the General Council in June, 1978. After a debate that saw objecting physicians compared to "bigoted moralists," by a vote of 81 to 68 the Council restored the original wording of the provision under section 16 of the Code of Ethics:21

16. An ethical physician, when his personal morality prevents him from recommending some form of therapy which might benefit his patient will so acquaint the patient;22

Many years later, a physician who was among those present agitating for the amendment told the Project Administrator that he and his colleagues were adamant that no physician who objected to abortion would be forced to refer for the procedure under any circumstances and were supported by legal counsel,23 so the amendment by the General Council probably avoided a major confrontation on the floor of the Annual General Meeting.

In 1988, after the Supreme Court of Canada struck down all legal restrictions on abortion, the CMA revisited its policies on the procedure. It maintained its policy on referral; objecting physicians were obliged to disclose their views to patients so that they might consult other physicians, but there was no requirement that they facilitate the procedure by referral.24

The wording of the Code remained unchanged until 1990, when a reference to "religious conscience was added and the section re-numbered.25 A 1996 revision dropped reference to religion but maintained the policy.26 The 2004 edition of the Code (now in force) introduced "values language" and again re-numbered the provision, but the policy remained intact.27

"No ethical consensus" to support mandatory referral

In 2000, the Project Administrator wrote to the Canadian Medical Association concerning its policy on referral for abortion. In a subsequent telephone conversation, Dr. John R. Williams, then CMA Director of Ethics, confirmed that the Association did not require objecting physicians to refer for abortion. He explained that the CMA had once had a policy that required referral, but had dropped it because there was "no ethical consensus to support it." This was clearly a brief reference to the short-lived 1977 revision of the Code of Ethics and ensuing controversy. Two years later, speaking of physicians who decline to provide or to refer for contraceptives for religious reasons, he said, "[They're] under no obligation to do something that they feel is wrong."28

Policy reaffirmed

In a guest 2006 editorial in the Canadian Medical Association Journal, Professors Sanda Rodgers of the University of Ottawa and Jocelyn Downie of Dalhousie University complained that "[s]ome physicians refuse to provide abortion services and refuse to provide women with information or referrals needed to find help elsewhere."29

The authors almost (but not quite) asserted that physicians opposed to abortion would "withhold a diagnosis," "delay access," "misdirect women," and "provide punitive treatment." They inserted, in the midst of this list, the imaginary offence of "failing to provide appropriate referrals:" imaginary, because, as noted above, the Canadian Medical Association did not require referral for abortion, and none of the cases that had been proposed by some of the authors' like-minded colleagues supported such a claim.30  Nonetheless, they insisted that refusal to refer for abortion constituted malpractice and could lead to "lawsuits and disciplinary proceedings."

This passage accomplished three remarkable things, all in one breath: it subtly impugned the integrity of objecting physicians; it associated conscientious objection with "punitive treatment" and other unethical practices; and it enveloped conscientious objection to abortion in an atmosphere of menace. It was a masterful symphony of accusatory innuendo, contrived connections, and strategic omissions. An unprepared reader might have overlooked the lyrical niceties, but the melody - "thou shalt refer or else" - was unmistakable.

The editorial triggered a flood of letters from protesting physicians and other concerned correspondents, but the authors did not retreat from their position, insisting that a "duty to refer" could be derived from the CMA Code of Ethics and Policy on Induced Abortion - a tendentious argument at best, dependent upon their peculiar interpretation of the documents.31  Dr. Jeff Blackmer, CMA Director of Ethics, reaffirmed Association policy that referral was not required,32and the CMAJ declared the subject closed..

The negative response to the editorial from the medical profession convinced Professor Downie that policy reform by the CMA was unlikely, so she turned her attention to provincial regulatory authorities to persuade them to use the law to force the medical profession to conform to her expectations.33

In a 2008 interview, Dr. Bonnie Cham, Chair of the CMA Ethics Committee, noted that the CMA had considered freedom of conscience in health care, "including the impact of offering and not offering abortion services." She reaffirmed the organization's support for "the identifiable minority" of physicians who do not agree with abortion, and observed that there is still "a minority who would not refer" for abortion.34

A 2003 annotation of the CMA Code of Ethics for the Canadian Psychiatric Association offered the following comment (referring to the 1990 wording of the Code):

Section 16 is the latest version of the CMA's statement on personal morality. The difficulties which arose with the previous statement are attributable to the failure to recognize that a physician's moral beliefs are paramount. A code of ethics can never require someone to carry out what he believes to be an immoral act.35


Notes

1.  Canadian Medical Association Code of Ethics (1965) Transcribed from the original by
A. Keith W. Brownell MD, FRCPC and Elizabeth "Libby" Brownell RN, BA (April 2001)Accessed 2014-02-22

2.  The Physician and the Liberal Society: Understanding in Winnipeg. Association News, CMAJ July 18, 1970, Vol. 103, p. 195.

3.  Canadian Medical Association Code of Ethics (1970) Transcribed from the original by
A. Keith W. Brownell MD, FRCPC and Elizabeth "Libby" Brownell RN, BA (April 2001)

4.   The number of abortions increased from 11,152 in 1970 to almost 39,000 in 1971, an increase from a rate of 3.0 to 8.3 per 100 live births. [Therapeutic abortion: government figures show big increase in ‘71. CMAJ May 20, 1972, Vol. 106, 1131] By 1975 the rate was 13.8/100. [J.B.S. 1975 abortion report more informative than its predecessors. CMAJ, October 22, 1977, Vol. 117, 933] CMA President Bette Stephenson stated that the CMA was concerned about the abortion rate and "most disturbed . . . that even more abortions are being performed . . .than are indicated in the alarming figures released by Statistics Canada."  [Stephenson B. Abortion: an open letter. CMAJ, 22 February, 1975, Vol. 112, 492-507.] In 1976 there were about 54,500 abortions (14.9/100 live births). [E.M.R., 1976 advance report on abortion compares statistics with 1975. CMAJ, January 7, 1978 Vol. 118, 76]

5.  Geekie D.A. Abortion: a review of CMA policy and positions. CMAJ September 7, 1974, Vol. 111, 474-477(Accessed 2014-02-22)

6.  Geekie D.A. Abortion: a review of CMA policy and positions. CMAJ September 7, 1974, Vol. 111, 474-477(Accessed 2014-02-22)

7.  Gibbard B. Letter to the editor.  CMAJ, January 7, 1975, Vol. 112, 25 (Accessed 2014-02-22)

8.   A letter to the CMAJ in 1977 repudiated the idea. "This view ought to be demolished. It is clear from nearly any angle that this problem is not simple; it is a complex social, religious and moral issue. It deeply affects our legal system and the civil rights of our citizens. Krass M.E. Letter to the editor. CMAJ, August 6, 1977, Vol. 117, 220-222 (Accessed 2014-02-22)

9.  Geekie D.A., Alberta medical association annual meeting quiet - by western standards. CMAJ November 6, 1976 Vol. 115, 908-910 (Accessed 2014-02-22)

10.   Protection of Conscience Project, Bibiliography: Periodicals, 1970-1974

11.  Describing the 1978 Council meeting that saw provision revert to its former wording, the CMAJ stated: "The major part of the debate concerned the wording of the paragraph of the Code of Ethics that deals with personal morality.unlike last year, the discussion was brief and free of emotion." Ethics problem reappears. CMAJ, July 8, 1978, Vol. 119, 61-62 (Accessed 2014-02-22)

12.  Geekie D.A. Abortion referral and MD emigration: areas of concern and study for CMA. CMAJ, January 21, 1978, Vol. 118, 175, 206 (Accessed 2014-02-22)

13 Quebec City is a lively place, CMA annual meeting delegates discover. CMAJ July 9, 1977, Vol. 117, 63. (Accessed 2014-02-22)

14.  Geekie D.A. Abortion referral and MD emigration: areas of concern and study for CMA. CMAJ, January 21, 1978, Vol. 118, 175, 206 (Accessed 2014-02-22)

15.   Forster J.M. Letter to the editor. CMAJ, April 22, 1978, Vol. 118, 888 (Accessed 2014-02-22)

16.   Forster J.M. Letter to the editor. CMAJ, April 22, 1978, Vol. 118, 888 (Accessed 2014-02-22)

17.  Shea J.B. Letter to the editor. CMAJ, April 22, 1978, Vol. 118, 890 (Accessed 2014-02-22)

18.  Shea J.B. Letter to the editor. CMAJ, April 22, 1978, Vol. 118, 890; Firth S.T. Letter to the editor. CMAJ, April 22, 1978, Vol. 118, 895 (Accessed 2014-02-22)

19.  Firth S.T.  Letter to the editor. CMAJ, April 22, 1978, Vol. 118, 895 (Accessed 2014-02-22)

20 Ethics problem reappears. CMAJ, July 8, 1978, Vol. 119, 61-62 (Accessed 2014-02-22)

21 Ethics problem reappears. CMAJ, July 8, 1978, Vol. 119, 61-62 (Accessed 2014-02-22)

22.  Canadian Medical Association Code of Ethics (1978) Transcribed from the original by
A. Keith W. Brownell MD, FRCPC and Elizabeth "Libby" Brownell RN, BA (April 2001)

23.  Telephone conversation between the Administrator of the Protection of Conscience Project and Dr. W. K., 15 August, 2012.

24.  The following parts of the policy statement are of particular interest with respect to freedom of conscience:

  • A physician should not be compelled to participate in the termination of a pregnancy.
  • No patient should be compelled to have a pregnancy terminated.
  • A physician whose moral or religious beliefs prevent him or her from recommending or performing an abortion should inform the patient of this so that she may consult another physician.
  • No discrimination should be directed against doctors who do not perform or assist at induced abortions.
  • Respect for the right of personal decision in this area must be stressed, particularly for doctors training in obstetrics and gynecology, and anesthesia.
  • No discrimination should be directed against doctors who provide abortion services.
  • Abortion services should meet specific standards in the areas of informed choice, medical and surgical procedures, nursing and follow-up care.

Canadian Medical Association Policy: Induced abortion. Approved by the CMA Board of Directors, December 15, 1988. (Accessed 2014-02-21)

25.  "16. An ethical physician when his personal morality prevents him from recommending some form of therapy which might benefit his patient will so acquaint the patient." Canadian Medical Association Code of Ethics (1990) Transcribed from the original by
A. Keith W. Brownell MD, FRCPC and Elizabeth "Libby" Brownell RN, BA (April 2001) (Accessed 2014-02-22)

26.   "8. Inform your patient when your personal morality would influence the recommendation or practice of any medical procedure that the patient needs or wants." Canadian Medical Association Code of Ethics (1996)  (Transcribed 10 March, 2001)(Accessed 2014-02-22)

27.  "12. Inform your patient when your personal values would influence the recommendation or practice of any medical procedure that the patient needs or wants." Canadian Medical Association Code of Ethics (2004) (Accessed 2014-02-22)

28.  Mackay B. Sign in office ends clash between MD's beliefs, patients' requests. CMAJ January 7, 2003 vol. 168 no. 1 (Accessed 2014-02-16)

29.  Rodgers S. Downie J. Abortion: ensuring access. CMAJ July 4, 2006 vol. 175 no. 1 (Accessed 2014-02-14)

30.  Including Zimmer v. Ringrose (1981), 124 Dominion Law Reports (3d) 215 (Alberta Court of Appeal); Zimmer v. Ringrose (1978), 89 Dominion Law Reports (3d) 657 (Alberta Supreme Court); McInerney v. MacDonald (1992), 93 Dominion Law Reports (4th) 415 (Supreme Court of Canada); Malette v. Shulman (1990), 67 DLR (4th) 321 (Ont. Court of Appeal); Nancy B v Hotel Dieu de Quebec (1992), 86 DLR (4th) 385 (Quebec Superior Court); R. v. Morgentaler (1988)1 S.C.R 95-96 (Supreme Court of Canada). See Murphy S. Postscript for the Journal of Obstetrics and Gynaecology Canada: Morgentaler vs. Professors Cook and Dickens. Protection of Conscience Project, 25 November, 2005

31.   Rodgers S. Downie J. Access to abortion: The authors respond. CMAJ February 13, 2007 vol. 176 no. 4 doi: 10.1503/cmaj.1060202 () Accessed 2014-02-23

32.  Blackmer J. Clarification of the CMA’s position on induced abortion. CMAJ April 24, 2007 vol. 176 no. 9 doi: 10.1503/cmaj.1070035 (Accessed 2014-02-22)

33.  "(We decided to proceed by way of these provincial regulatory bodies rather than the CMA, in part, because of the negative reaction of the CMA to the Rodgers/Downie editorial, which made policy reform by the CMA seem unlikely.)" McLeod C, Downie J. "Let Conscience Be Their Guide? Conscientious Refusals in Health Care." Bioethics ISSN 0269-9702 (print); 1467-8519 (online) doi:10.1111/bioe.12075 Volume 28 Number 1 2014 pp ii–iv

34.  "10 questions with CMA's ethics champion Dr. Bonnie Cham." (Questions 6, 9) Medical Post, 25 September, 2008.

35.  Mellor C.  The Canadian Medical Association Code of Ethics Annotated for Psychiatrists. Canadian Psychiatric Association - Position Papers, p. 4 of 6. Approved by the Board of Directors of the Canadian Psychiatric  Association in October, 1978. (Accessed 2014-02-22)