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Protection of Conscience Project

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News Commentary 2004

What about doctors' right to choose?

The Columbian, 16 December, 2004
Reproduced with permission

Elizabeth Hovde,
Columbian staff writer

Should a private health care provider or hospital be forced to perform abortions, even if he, she or it believes abortions are unethical?

Regardless of your view on the legal right to have an abortion, the answer should be, "Absolutely not."

Some pro-choice lobbyists and lawmakers disagree. And despite all their "right to choose" rhetoric, pro-choice forces have filed a lawsuit challenging a much-needed amendment signed into law by President Bush last week. The Hyde-Weldon Conscience Protection Amendment says that federal funding cannot be withdrawn from providers who, because of their beliefs, choose not to perform abortions. Before now, federal law protected Catholic doctors from the penalties. The new law protects all doctors, hospitals and insurers.

This nation continues to support the legal right to an abortion, despite technology that shows without any doubt that human life begins at conception. (In fact, the human central nervous system is already forming in a 3-week-old fetus. By fetal-age week four, a baby's heartbeat can be seen on ultrasound. This is before the vast majority of abortions happen and before a lot of women even know they are carrying a child.)

Legal abortions will be with us always, as will doctors and hospitals willing to perform them. Even ardent pro-lifers acknowledge that mass chaos and harm to mothers would result from taking the legal right away. What most pro-lifers want and rightly continue to demand, however, is more reasonable policies concerning abortion. Just as a woman is able to decide for herself if she will abort a child, a doctor or private hospital should have the right to steer clear of having anything to do with the life-ending procedure without penalty.

Rep. Nita Lowey, D-N.Y., told The Chicago Tribune of the Hyde-Weldon amendment, "The conservatives have been emboldened and the moderates have been minimized, and this is a real wake-up call."

It sure is. The wake-up call, however, is that no one should be forced to provide an abortion not that common-sense legislation is finally getting passed. It is sad that the concept of a right to conscience seems foreign to pro-choicers such as Lowey. Judith DeSarno of the National Family Planning and Reproductive Health Association is also at odds with the amendment. She's telling people that it "is meant to deny abortion information and referral to women who receive care that is subsidized by any program funded by" the government.

U.S. Rep. Dave Weldon, R-Fla., counters that the law carrying his name does nothing of the sort. It is meant to "not force people to do abortions or assist in abortions or allow abortions in their hospitals if they don't want to," he told reporters.

Pro-choice extremists contradict themselves. They cannot convincingly say that the public and government have no right to tell a woman she can't have an abortion and at the same time tell a private health care provider that he or she must perform one.

Keep parents clueless

Another area in which some pro-choicers are off the deep end is parental rights. While we hold parents responsible for the destructive actions of their children and won't let them take aspirin in school without parent permission, we continue to limit their ability to help teens make the major medical decision to have an abortion. Washington and other states don't even have parental notification laws.

Angering parents' rights advocates this month is California Attorney General Bill Lockyer's recent legal opinion that says California schools are prohibited from informing parents if a child leaves campus to receive medical services, including an abortion, AIDS treatment or psychological analysis. Heck, many schools, even here in Clark County, have staff members who refer teens to abortion providers during the school day without parent knowledge. The exact opposite ought to be policy in any public school. Parents should be notified whenever a child leaves campus.

Leaders of the pro-choice crowd won't hear of it. Their passion for legalized abortion trumps parents' rights and common sense. That is why they believe health care providers don't have a right to follow their own consciences and that schools supplant parents when an abortion is at stake.

Doctors, Medical Professionals Deserve Conscience Protection on Abortion

September 28, 2004
Reproduced with permission

Jonathan Imbody
Senior policy analyst for the Christian Medical Association

The House of Representatives recently voted to prohibit government authorities from requiring any health care professional or institution to perform or pay for abortions.

Our Founding Fathers obviously would applaud this protection of individual liberties and conscience. Yet when D.C. officials faced this hot brewing battle a few years ago, they pushed free speech and freedom of religion aside and nearly plunged the capital into a health care crisis.

In July 2000, the D.C. Council thumbed its nose at faith-based hospitals and other conscientious objectors by passing a bill to force D.C. employers to provide health-insurance coverage for contraceptives and abortion-causing drugs -- regardless of providers' ethical or moral objections. The council's unscrupulous decision left conscience-driven hospitals and charities with no other choice than to shut down rather than violate vital religious and ethical principles.

The imperious mandate raised the specter of sick and dying patients lining up at City Hall demanding to know why pro-choice legislators had taken away their doctors' choice and imperiled their own life-saving health care. Only a pragmatic pocket veto by the mayor, under threat of congressional intervention, stopped that measure and averted the potential shutdown of faith-based hospitals and charities.

Dissenting at-large Council member Harold Brazil, who had lobbied to add a "conscience clause" exemption to the mandate, reminded the council at that time, "James Madison once said, 'Conscience is the most sacred of all property.' " [i]

Since the D.C. debacle, abortion activists have hotly pursued their conscience-crushing campaign to make others provide and pay for their abortions and birth control.

Of course, they can't easily explain why employers' health-insurance plans, designed to help employees defray the cost of treating illness and disease, should suddenly be made to pay for preventing or ending a healthy pregnancy. Nor can they justify why providing relatively easily obtained contraceptive and abortifacient drugs requires violating the conscience rights of those who remain morally opposed to such practices.

Pushing reproductive rights toward reproductive mandates seems certain to backfire in the court of public opinion. The irony of trampling individual liberties and conscience rights while marching under the banner of "choice" will not be lost on the American public.

[i] Brazil, Harold, Letter to the Editor, Washington Post, August 5, 2000; Page A18

Letter to the Editor, National Post
22 May, 2004

Your report about plans to make the morning-after pill available without prescription claimed that pharmacists who refuse to dispense it for reasons of conscience are expected to refer for the drug ("'Abortion pill' rules loosened: Morning-after tablet to be available without a prescription," National Post, 19 May 2004). This is an oversimplification.

The policies of pharmacy regulatory authorities vary from province to province. For example, the College of Pharmacists of British Columbia demands referral,1 but authorities in Manitoba and Nova Scotia do not.2 Constitutional lawyer Iain Benson suggests that the kind of intolerance displayed by the BC College would not be accepted in other professions, and hopes that, eventually, greater professional maturity will lead to a more liberal outlook.3

The claim that mandatory distribution or referral is necessary hangs tenuously on the myth that, somewhere in Canada, there is a small town with only one pharmacist and no other health care provider. And contrary to the impression created by your story, Denton, Texas, is not such a mythical town. When the Denton pharmacist declined to fill the prescription for religious reasons, the woman obtained the drug at a pharmacy across the street.4 Leaving out such details does not do justice to the issues that arise in conflicts between religious or moral conviction and the ethics of the bottom line.

In this regard, calling the morning-after pill an 'emergency' drug is clearly a masterful marketing strategy, but statistics provided by the pill's advocates tell another tale. Michael Valpy reported that 4,600 prescriptions for the 'morning-after-pill' in BC were believed to have prevented 300 pregnancies,5 figures consistent with a study reported earlier in the Canadian Pharmaceutical Journal.6 Doing the math, one finds that 94% of the women didn't actually need the drug sold to them. This is not the kind of 'emergency' that justifies suppression of conscientious objection.

Sean Murphy, Administrator
Protection of Conscience Project


1. Project Report 2001-01 (26 March, 2001) College of Pharmacists of British Columbia- Conduct of the Ethics Advisory Committee, Appendix "B".

2. Protection of Conscience Project News Release, 5 June, 2000: Freedom of Conscience Recognized. Nova Scotia College of Pharmacists, Code of Ethics, Value V.

3. Greg J. Edwards, Pharmacy Colleges Quash Conscientious Objection.

4. "Pharmacy draws protest:Demonstrators speak out against refusal to fill 'morning-after' pill." Dallas News, 3 February, 2004.

5. Michael Valpy "The Long Morning After", Globe and Mail, 15 December, 2001

6. "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.

Letter to the Editor, Western Standard Magazine
14 May, 2004

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.

Sean Murphy, Administrator
Protection of Conscience Project


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]

Letter to the Editor, Journal of Obstetrics and Gynaecology
5 April, 2004

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 Bright3the 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.

Sean Murphy, Administrator
Protection of Conscience Project


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

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

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

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

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

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

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

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

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

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

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


Some corrections  and clarifications

When rights collide

When Rights Collide