Joint intervention in Carter v. Canada

Selections from oral submissions

Supreme Court of Canada, 15 October, 2014

Sean Murphy*

Introduction:
The Catholic Civil Rights League, Faith and Freedom Alliance and the Protection of Conscience Project were jointly granted intervener status in Carter by the Supreme Court of Canada.  The joint factum voiced concern that legalization of physician assisted suicide and euthanasia would likely adversely affect physicians and health care workers who object to the procedures for reasons of conscience.  The factum was supplemented by an oral submission.

Links to annotated selections from the oral submissions relevant to freedom of conscience are provided below.  In each case, readers can access the Supreme Court webcast through the linked image.  Time stamps are cited to allow the relevant section of the webcast to be located.  On the Supreme Court website, use  “full screen” view when dragging the slider button to the desired time stamp.

2015-10-15-arvay-01
Joseph Arvay, Q.C. (Counsel for the Appellants)

2015-10-15-bernard-01
Jean-Yves Bernard (Counsel for the Attorney General of Quebec)

2015-10-15-underwood-01
Harry Underwood (Counsel for the Canadian Medical Association)

2015-10-15-staley-01
Robert W. Staley (Counsel for the Catholic Civil Rights League, Faith and Freedom Alliance, and Protection of Conscience Project)

Promises, promises

Canadian law reformers promise tolerance, freedom of conscience

What happens after the law is changed is another story.

Sean Murphy*

Now let me finally cut to the chase, to the heart of this appeal.  The most vociferous opposition to our challenge comes from some church groups, and some disabled organizations.  To the church groups we simply say that we respect your religious views, but they cannot, in this secular society,  trump our clients’ constitutional rights.  And no one is suggesting that a physician who has a religious objection to assisting a patient with his or her death must do so.
Joseph Arvay, Q.C., Oral Submission to the Supreme Court of Canada,  Carter v. Canada, 15 October, 2014

Introduction

With the passage of the Quebec euthanasia law and the pending decision in Carter v. Canada in the Supreme Court of Canada, physicians, medical students, nurses and other health care workers opposed to euthanasia and assisted suicide for reasons of conscience are confronted by the prospect that laws against the procedures will be struck down or changed.  They may wonder what the future holds for them if that happens.

Will they be forced to provide or assist with something they find morally abhorrent?  If they refuse to do so, will they be disadvantaged, discriminated against, disciplined, sued or fired?  Will they be forced out of their specialty or profession, or forced to emigrate if they wish to continue in it?

The realpolitik of law reform

These questions have been largely ignored, since much of the public debate about euthanasia and assisted suicide has been about whether or not the procedures should be legalized, not about what effect legalization might have on freedom of conscience, particularly among health care workers.  Opponents of legalization understandably decline to raise the issue because they are concerned that doing so would compromise the message they want to deliver.

Advocates of legalization, on the other hand, generally recognize that support for euthanasia and assisted suicide may begin to evaporate if it appears that they intend to force unwilling physicians or health care workers to participate in killing patients.  In particular, they do not wish to alienate members of the health care community who, on principle or as a matter of prudent self-interest, would not support such a coercive policy.  Instead, they adopt a reassuring posture of respect for freedom of conscience and tolerance for opposing views within the medical profession.

It is instructive to see how this strategy has been applied in the case of the Quebec euthanasia law and the Carter case, and then to consider how it was applied in the case abortion, another morally controversial procedure.  While we cannot predict the future, we are now in a position to judge the worth of the assurances given when abortion was legalized over forty years ago, and to apply that judgement to assurances now being made about euthanasia. [Full Text]

Project intervenes in the Supreme Court of Canada

News Release

Protection of Conscience Project

Today the Protection of Conscience Project joined the Catholic Civil Rights League (CCRL) and Faith and Freedom Alliance in a joint intervention at the Supreme Court of Canada in Carter v. Canada, a case seeking the legalization of euthanasia and physician assisted suicide.

The appeal necessarily involves the issue of freedom of conscience for healthcare providers.   An indeterminate number of healthcare providers consider killing patients or assisting in suicide morally or ethically abhorrent. Their views  are consistent with the current Canadian legal framework, which would be fundamentally changed if euthanasia and assisted suicide were legalized.  Such a change in the law would generate demands that physicians and other healthcare providers directly or indirectly participate in what they consider to be gravely immoral activities.

In the event that the Supreme Court strikes down the criminal law as it relates to euthanasia or assisted suicide, the intervention urged the Court to “make clear to the legislature that any legislation in this area must protect the freedom of conscience of healthcare providers,” ensuring that “healthcare providers are not directly or indirectly coerced into becoming parties to killing patients or assisting patients kill themselves.”

In a Backgrounder on the intervention, Project Administrator Sean Murphy notes the need for robust protection for freedom of conscience among healthcare providers if the law is changed. In that case, he argues, direction from the Court will be needed “to correct a dangerous error that has become increasingly widespread: that the state or a profession may impose upon people a duty to do what they believe to be wrong – even if that means killing people.”

Elsewhere, he observes that the history of abortion law reform in Canada demonstrates that healthcare providers “cannot rely on mere promises of tolerance and respect for freedom of conscience.”

” The greater the demand for a procedure -whether the demand arises from the number of patients or from ideological rights claims -  the sooner objecting health care workers will face discrimination, harassment and coercion. ”

The intervention was presented on behalf of the interveners by Robert Staley, with the participation of Ranjan Agarwal, Jack Maslen, and Sheridan Scott, all of Bennett Jones LLP, together with CCRL President, Philip Horgan.  27 interventions were approved by the Court.

A decision is expected in the Spring of 2015.

 

Medical students’ attitudes towards conscientious objection: a survey

J Med Ethics 2014;40:609-612 doi:10.1136/medethics-2013-101482

Sven Jakob Nordstrand, Magnus Andreas Nordstrand, Per Nortvedt, Morten Magelssen

Objective: To examine medical students’ views on conscientious objection and controversial medical procedures.

Methods: Questionnaire study among Norwegian 5th and 6th year medical students.

Results: Five hundred and thirty-one of 893 students (59%) responded. Respondents object to a range of procedures not limited to abortion (up to 19%)—notably euthanasia (62%), ritual circumcision for boys (52%), assisted reproduction for same-sex couples (9.7%) and ultrasound in the setting of prenatal diagnosis (5.0%). A small minority (4.9%) would object to referrals for abortion. In the case of abortion, up to 55% would tolerate conscientious refusals, whereas 42% would not. Higher proportions would tolerate refusals for euthanasia (89%) or ritual circumcision for boys (72%).

Discussion: A majority of Norwegian medical students would object to participation in euthanasia or ritual circumcision for boys. However, in most settings, many medical students think doctors should not be able to refuse participation on grounds of conscience. A minority would accept conscientious refusals for procedures they themselves do not object to personally. Most students would not accept conscientious refusals for referrals.

Conclusions: Conscientious objection remains a live issue in the context of several medical procedures not limited to abortion. Although most would want a right to object to participation in euthanasia, tolerance towards conscientious objectors in general was moderate or low. [Full Text]

Dignity and the Ownership and Use of Body Parts

Cambridge Quarterly of Healthcare Ethics / Volume 23 / Issue 04 / October 2014, pp 417-430

Charles Foster

Abstract: Property-based models of the ownership of body parts are common. They are inadequate. They fail to deal satisfactorily with many important problems, and even when they do work, they rely on ideas that have to be derived from deeper, usually unacknowledged principles. This article proposes that the parent principle is always human dignity, and that one will get more satisfactory answers if one interrogates the older, wiser parent instead of the younger, callow offspring. But human dignity has a credibility problem. It is often seen as hopelessly amorphous or incurably theological. These accusations are often just. But a more thorough exegesis exculpates dignity and gives it its proper place at the fountainhead of bioethics. Dignity is objective human thriving. Thriving considerations can and should be applied to dead people as well as live ones. To use dignity properly, the unit of bioethical analysis needs to be the whole transaction rather than (for instance) the doctor-patient relationship. The dignity interests of all the stakeholders are assessed in a sort of utilitarianism. Its use in relation to body part ownership is demonstrated. Article 8(1) of the European Convention of Human Rights endorses and mandates this approach. [Full Text]

Canadian Liberal party leader orders end to freedom of conscience and expression in party

Justin Trudeau, leader of the Canadian Liberal Party, has declared that a purported “right” to abortion and contraception is more important than freedom of conscience and expression.  He has reaffirmed his intention to enforce his views by suppressing freedom of conscience and expression with respect to abortion among Liberal members of parliament; presumably, this will extend to the rest of the federal Liberal Party as well.  When questioned about the effect of his decision on the ‘Catholic vote,’ he asserted that he, himself, is Catholic, and many Catholics were upset when previous Liberal governments decriminalized homosexual conduct and legalized divorce. [CBC News]  In making the statements, Trudeau was reinforcing a policy announced in May and reiterated in June, when his office confirmed that the policy applies to current MPs as well as all future Liberal candidates. “Mr. Trudeau believes that everyone is welcome to their own personal views,” said his office, but must conform to the party line. [The Guardian]  In response, Prince Edward Island Liberal MP Lawrence MacAulay, who professes to be “pro-life,” issued a statement saying, “Despite my personal beliefs, I understand that I will have to vote the party position.” [Lifesite News]

The 4th Annual Conference on Medicine and Religion

March 6-8, 2015
Cambridge, Massachusetts, U.S.A.

Spiritual Dimensions of Illness and Healing

It is a grievous mistake to keep a wall of separation between medicine and religion. There is a division of labor but a unity of spirit. The act of healing is the highest form of imitatio Dei.
~Rabbi Abraham Heschel (1964)

Rabbi Heschel’s words seem as relevant today as they did in 1964, when he spoke them to physicians at the American Medical Association. Contemporary western culture continues to divide carefully care of the soul from care of the body, apportioning the former to religious communities and the latter to medicine. The division of spiritual and material care of the human person has allowed us to meet many clinical needs efficiently, but it has also wrought unwanted outcomes, including increased mechanization of care and isolation in the experiences of illness and dying.  [More Details]

The Problem of Persons: Public Bioethics and Contending Moral Anthropologies

September 15, 2014 (7:00pm – 9:00pm)
Keane Auditorium, McGivney Hall,
Catholic University of America
Washington, D.C.

The Center for Cultural and Pastoral Research is please to host a conversation with Prof. Carter Snead on the topic “The Problem of Persons: Public Bioethics and Contending Moral Anthropologies,” on Monday, September 15, at 7:00 p.m.

In this lecture, Prof. Snead will argue that the richest way to understand contemporary disputes in public bioethics is through the lens of moral anthropology.  At bottom, such disagreements – over abortion, embryo-destructive research, assisted reproductive technologies, the definition of death, end of life decisionmaking, and research involving human subjects – are conflicts regarding the nature and identity of human persons.  The anthropological premises underlying the most prominent viewpoints in this domain will be illuminated and examined. [More details]

 

Freedom of conscience

Presented to the Rotary Club
Powell River, British Columbia, Canada

Sean Murphy*

Thank you for inviting me to speak to you this evening. C.S. Lewis once observed that a lifetime of learning leaves a man a beginner in any subject, so I am here as a beginner who is still just beginning. The specific focus of the Protection of Conscience Project is freedom of conscience in health care. However, rather than address issues specific to health care I am going to speak more generally about freedom of conscience. I think a broader approach, a bigger picture, will be more useful for you as Rotarians. I’ll begin with some notes about the history of freedom of conscience and religion. . .  Full Text