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]

Conscientious commitment

The Lancet, Volume 371, Issue 9620, Pages 1240 – 1241, 12 April 2008

Bernard M. Dickens

In some regions of the world, hospital policy, negotiated with the health ministry and police, requires that a doctor who finds evidence of an unskilled abortion or abortion attempt should immediately inform police authorities and preserve the evidence. Elsewhere, religious leaders forbid male doctors from examining any part of a female patient’s body other than that being directly complained about. Can a doctor invoke a conscientious commitment to medically appropriate and timely diagnosis or care and refuse to comply with such directives? [Full Text]

Project Letter to the Western Standard

14 May, 2004

Sean Murphy, Administrator
Protection of Conscience Project

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


Notes

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

Project Letter to the Telegraph Journal

New Brunswick, Canada
12 November, 2002

Sean Murphy, Administrator
Protection of Conscience Project

Doctors at the hospital in Moncton have decided to perform only abortions they believe necessary for maternal health, so that scarce health care resources can be dedicated to reducing waiting lists for surgery. Dr. Henry Morgentaler calls this “disgusting”. He also accuses his colleagues of unethical conduct because they appear to be imposing their religious or moral views on patients. (Morgentaler calls decision to halt abortions ‘disgusting’ 9 November, 2002)

It is remarkable that Dr. Morgentaler should be disgusted by physicians who perform abortions for ‘health’ reasons, but not abortions for which there is no medical justification. When he decided to break the law against abortion, it was because he decided to follow something he called his “medical conscience”.1 His Moncton colleagues, while they will break no law, are doing the same thing. Baseless diatribes about ‘imposing moral beliefs’ are unfair and do nothing to improve health care in New Brunswick.

Dr. Morgentaler has also misrepresented the Code of Ethics of the Canadian Medical Association by implying that it obliges doctors to provide abortions. It does not, nor does it require physicians to referfor abortions or other morally controversial procedures.

Finally, Dr. Morgentaler clearly applies his own moral views in his own medical practice. Upon what basis would he deny his colleagues the same freedom?


Notes: 1.  Pelrine, Eleanor Wright, Morgentaler: The Doctor Who Couldn’t Turn Away. Canada: Gage Publishing, 1975, p. 29

Project Letter to Telegraph Journal

New Brunswick, Canada
24 February, 2002

Sean Murphy, Administrator
Protection of Conscience Project

Dr. Monica Brewer’s characterization of physician referral for morally controversial purposes as a “black and white” issue is the result of inadequate reflection.(“MD’s Morals Restricting Birth Control Access,” February 9, 2002) Her suggestion that doctors who object to the morning-after-pill and contraception “should pair with doctors to whom they can refer” is a suitable solution only for those whose objections are simply matters of professional judgement or personal preference.

For example: physicians who know that 94% of the women who are sold the morning-after-pill do not actually require it to prevent pregnancy (the numbers are provided by those who support its widespread use1) may be unwilling to prescribe it for that reason. However, they might well refer a patient who wants the drug to a doctor who will.

Similarly, some physicians believe that women’s health and social interests are better served by learning to recognize their natural fertility cycles, so that they need not be dependent upon physicians or drug companies to plan or avoid pregnancy. These physicians may not prescribe birth control pills for ‘ecological’ reasons, but probably wouldn’t object to referral.

Finally, an obstetrician who thinks that aborting Down syndrome infants is a good idea, but finds performing abortions a traumatic experience, would probably welcome the opportunity to refer a patient to another colleague.

The situation is quite different when physicians are asked to refer a patient for something to which they have grave moral objections. They believe that by referring patients they are themselves morally culpable for facilitating the wrong that is done. Strange? Not at all.

Consider Newsweek columnist Jonathan Alter’s suggestion that, since physical torture is “contrary to American values”, the US should turn terrorist suspects who won’t talk over to “less squeamish allies.”2 No one would seriously argue that this would relieve the US of moral complicity in torture.

Of course, moral complicity in abortion, contraception and the morning-after-pill are not issues for people like Dr. Morgantaler and his associate, Judy Burwell, who think these are good things, and that those who think differently are mistaken. But it is surprising that they view freedom of conscience as a problem to be solved by abolishing it, at least for those who don’t agree with them.

After all, Dr. Morgantaler justified his defiance of Canadian abortion law in a 1970 article titled, “A Physician and His Moral Conscience.” 3


Notes (provided for editorial verification)

1. “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. See also Valpy, Michael, “The Long Morning After”, Globe and Mail, 15 December, 2001)

2. Alter, Jonathon, “Time to Think About Torture”. Newsweek, 5 November, 2001, p. 45.

3. 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

Letter to the Telegraph Journal

New Brunswick, Canada
14 February, 2002

J. Edward Troy,
Bishop Emeritus of  Saint John Rothesay

[Comments in the December, 2001, Bulletin of the College of Physicians and Surgeons  came to media attention in February, 2002, generating pressure on conscientious objectors in New Brunswick.  Catholic Bishop J.  Edward Troy responded to the news reports in this letter, reproduced with permission of the author.  – Administrator-]

The headline on the front page, “MDs’ morals restricting birth control access” (Telegraph-Journal, Feb. 9) was eye-catching. Upon reading the piece, I learned the reporter was culling from the Bulletin of the College of Physicians and Surgeons of New Brunswick (CPSNB) in which it was recorded that at its meeting of Nov. 23, 2001, its council discussed the implications of the right of physicians not to participate in a treatment or process to which they morally object.

In other words, the Code of Ethics of the College quite properly permits physicians to practice their profession in accordance with their conscience. The discussion, as recorded in the bulletin, is repeated  almost in its entirety in the Telegraph-Journal. It was particularly noted that some patients are not referred for an abortion or do not receive advice on contraception from their doctors. This is followed by  comments (not contained in the bulletin) from one physician in Saint John who doesn’t have the same moral qualms, and by some remarks from  the administrator of the Morgentaler abortion facility in Fredericton.

There is an underlying indignation present in the article more suitable to an opinion piece than to a news report. The writer goes back to Nov. 23 for this information which is given headline treatment on Feb. 9,  breathlessly zeroing in on the roughly eight per cent of the text in the college bulletin that considers the case of patients whose doctors refuse to counsel abortion or contraception because of their moral  principles.

Nothing about the other important matters the council deliberated upon  and which were reported in the pages of the same bulletin. Nothing about  the patient who died from a heart attack after being refused treatment for heart disease. Nothing about the instances where allegations of  malpractice were lodged against doctors for a variety of reasons that  resulted in loss of life or serious illness. Nothing about the extremely difficult choices physicians are faced with every day and the honest  efforts the vast majority of them make to serve their patients with  integrity and skill, but also with fallibility and occasional failure.

No, the focus, in a somewhat negative and disapproving fashion, on the  good news that physicians are acting conscientiously in their professional lives. Indeed I was impressed and heartened by all that I read in the bulletin precisely because it revealed the conscientious  manner in which the council of the CPSNB monitors and guides its members.

I doubt very much the CPSNB would wish to change its code of ethics so as to require physicians to disregard their consciences, especially today when there are factions promoting euthanasia and  physician-assisted suicide. While the code of ethics of the CPSNB does  not allow the doctor to impose his moral views on the patient, it would be equally objectionable to insist that the patient be authorized to  impose his or her moral outlook on the doctor. One hears of patients demanding a prescription for this or that drug; should the physician be  obliged to comply? There is reference in the newspaper piece to the  “morning after pill” that is not really a contraceptive but rather an abortifacient.

Pro-life doctors do not perform or cause abortions nor do they  co-operate with others in procuring an abortion. They rightly consider that abortion is the taking of a human life at an early stage in its  development.

In today’s social and cultural climate, the opposition to contraception is not easily understood, let alone accepted. This is not surprising  since the whole idea of any binding moral principles in the area of  sexuality is widely rejected. According to the lax standards prevalent in our culture, no sexual behaviour is morally wrong – fornication, promiscuity, adultery, masturbation, homosexuality, bestiality, etc.

With the exception of child sexual abuse, the guiding rationale seems to be a light-hearted “different folks, different strokes!”

If a person adheres to this sexual libertinism, he or she is not likely to be persuaded by any amount of argumentation that artificial methods  of contraception are wrong, nor will he or she be able or willing to  grasp the distinction between them and natural family planning. He or she will not see that the warm embrace of contraception has led logically and historically to the widespread acceptance of abortion.

While the views of the administrator of the Morgentaler facility were  completely predictable, she really demonstrates a lot of nerve in lecturing physicians about ethics. “I think it’s very irresponsible of doctors not to be meeting patients’ needs, regardless of their personal opinion or religious beliefs,” she is quoted as saying.  Now this judgment comes from someone who is managing a business devoted  to the destruction of babies in the womb!

Talk about the moral high ground! Also, please observe the mentality  revealed in this declaration. If the abortionists were in charge, they would require people to act against their conscience. These are the same  folks that are always whining about pro-life people who, they say, wish to impose their morality on them. However, it’s apparently all right for  the pro-abortion people to impose their morality on the rest of us.

She is also reported complaining that “many” women who had  been refused birth control pills by doctors were using other methods such as condoms and became pregnant. Was that a slip of the tongue?  Doesn’t she belong to the school that keeps insisting that condoms  should be made available to teens and others so that they won’t become  pregnant or contract AIDS? What about all that propaganda about  “safe sex?” It appears that she knows, as everyone should,  that condoms do fail with the result that the woman becomes pregnant or  the unaffected partner gets AIDS.

I salute physicians – no doubt the vast majority of practitioners – who refuse to ignore conscience and moral principle in the exercise of their  calling. I honour physicians who do not derive their notions of what is  right and wrong from popular magazines or from the superficial opinions of “celebrities” or from Hollywood script writers or from harangues by those who operate abortuaries.

Doctors have access to a long and solid tradition of medical ethics.  It’s encouraging to see that so many continue to draw on that wisdom in the practice of their profession and aren’t easily swayed by the fog of  moral indifference which covers so much of the world today.