World Medical Association
Revision of WMA
Declaration of Oslo on Therapeutic
Abortion (2006)
Appendix "D"
Mandatory Referral - From Abortion to Euthanasia
D1.1.1 The Canadian Medical Association (CMA) supported
abortion law reform, but when Canadian abortion law was liberalized in 1969,
the CMA Code of Ethics still proscribed abortion except when "continuance of
pregnancy would imperil the life of the mother."27
D1.1.2 In 1970 the CMA, in revised the Code of Ethics,
deleting specific reference to abortion because it was thought to be "like
any other surgical procedure."28 However, one indication that this was far
from the unanimous view of CMA members was a new statement about "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.29
D1.2.1 As soon as the new abortion law went into
effect, the number of abortions increased exponentially, and dramatic yearly
increases in abortion rates continued for a decade. By 1976 the abortion
rate was almost 30 times higher than that prior to the change in the law,
reflecting the shift from therapeutic to elective abortion for non-medical
and socio-economic reasons (Appendix
"E," E4.2-3).
D1.2.2 The broadened grounds for abortion and
continuing increases in the abortion rate increased the likelihood of
conscientious objection to the procedure and of conflict between patients
and physicians. It also brought raging controversy.
D1.2.3 Promises of tolerance and respect for freedom of
conscience, made to secure passage of the new abortion law, often proved
worthless after the law had passed. By 1977, forty per cent of objecting hospital
employees had been compelled to participate in abortions, the overwhelming
majority of which were elective procedures.30
D1.3.1 In 1977 the CMA revised Section 15 of the
Code of Ethics by adding a requirement that an objecting physician must
"advise the patient of other sources of assistance."31 The revision was widely
interpreted as imposing a requirement for objecting physicians to refer
patients for abortion. This was highly divisive, generating "confusion and
dismay" within the Association.32 The following year, after a General Council
debate that saw objecting physicians compared to "bigoted moralists,"33 the
original wording of the provision was restored.34
D1.3.2 Revisiting the Code of Ethics after the
Supreme Court of Canada struck down all legal restrictions on abortion in
1988, the CMA maintained the policy. Objecting physicians were obliged to
disclose their views to patients, but they were not required to facilitate
abortion by referral.35
D1.4.1 In 2000, Dr. John R. Williams, then CMA Director
of Ethics, confirmed in a telephone conversation with the Project
Administrator that the Association did not require objecting physicians to
refer for abortion. Referring to the short-lived 1977 revision of the
Code of Ethics, he explained that the CMA had once had such a policy,
but dropped it because there was "no ethical consensus to support it."
D1.4.2 Two years later, speaking of physicians who
decline to provide or to refer for contraceptives for religious reasons, Dr.
Williams said, "[They're] under no obligation to do something that they feel
is wrong."36
D1.4.3 Dr. Williams was Director of Ethics for the
World Medical Association from 2003 to 2006 and the author of the World
Medical Association Medical Ethics Manual.37
D2.1 In 2006 law professor Jocelyn Downie and a
colleague claimed that refusal to refer for abortion was malpractice that
could lead to "lawsuits and disciplinary proceedings."38
The CMA reaffirmed
that referral was not required,39 and Jocelyn Downie and others turned to
provincial regulatory authorities to persuade them to compel objecting
physicians to refer for abortion.40
D2.2 In 2009, Professor Downie and others formed the
Conscience Research Group (CRG).41 They planned to convince medical regulators
to force physicians to refer for "reproductive health" services -
contraception, abortion and so forth.42
D3.1 Downie was one of two CRG
members43 appointed to a Royal Society of Canada panel of experts chaired by
Udo Schuklenk. In 2011, the panel recommended legalization of assisted
suicide and euthanasia.44,45
D3.2 The experts insisted that health care
professionals unwilling to provide euthanasia help patients commit suicide
must refer them to someone willing to do so.46 This was justified, they said,
because it was agreed that objectors are obliged to refer for "reproductive
health services."47
D3.3 Meanwhile, the British Columbia Civil Liberties
Association and others filed what became the landmark case of Carter v.
Canada (Attorney General), seeking legalization of physician assisted
suicide and physician administered euthanasia.48 Jocelyn Downie helped prepare
their expert witnesses.49 In June, 2012, a British Columbia Supreme Court
judge ruled in their favour in June, 2012,50 and the case began the journey to
the Supreme Court of Canada.
D4.1 In the fall of 2013, as the Carter case was moving
through the courts, Jocelyn Downie and two members of the Conscience
Research group published a Model Conscientious Objection Policy (Model
Policy) for Canada’s
medical regulators. The Model Policy demands that objecting physicians who
refuse to provide legal, publicly funded services must "make a timely
referral" to someone "willing and able to accept the patient and provide the
service," or provide the services themselves.51
D4.2 Although it originated in an effort to compel
referral for abortion, the model policy was drafted to apply to any legal
procedure - including euthanasia and assisted suicide. In 2013, the draft
model policy was presented to a group including the policy manager of the
College of Physicians and Surgeons of Ontario (CPSO)52 and officials from
three other provincial medical regulators.53
D4.3 Five years earlier, the CPSO, had attempted to
force physicians to set aside their personal beliefs in providing medical
care.54 A tidal wave of protest forced the College to back down in 2008.
However, in 2014, the Conscience Research Group's Model Policy was discussed by CPSO registrar
with colleagues,55 and in the fall the CPSO proposed a draft policy demanding
that physicians make an "effective referral" for services they refused to
provide for reasons of conscience.56 The draft was opposed by the great
majority of almost 16,000 submissions.57
D4.4 In February, 2016, the Supreme Court of Canada
ruled in the Carter case, ordering legalization of physician
assisted suicide and euthanasia. The next day, a euthanasia advocate cited
the CPSO draft as the policy that should be applied to physicians who refuse
to participate in killing patients or helping them to commit suicide.58
D4.5 Apparently to ensure the policy would be approved
by the College Council, the CPSO Working Group added a disclaimer that it
would not apply to euthanasia or assisted suicide. This strategic concession
lasted less than a year. Nine months later, the College decided that it
would compel objecting physicians to make effective referrals for euthanasia
and assisted suicide.59
D4.6 While this was happening in Ontario, the College
of Physicians and Surgeons of Saskatchewan (CPSS) was considering a policy
virtually identical to the CRG Model Policy proposed by the CPSS Associate
Registrar,60 who had been among the officials lobbied by the CRG.53 He
advocated compulsory referral in anticipation of the legalization of
assisted suicide and euthanasia.61
He publicly acknowledged that effective referral would be required not just for "birth
control and abortion" but for assisted suicide as well, admitting that
doctors could be disciplined or dismissed if they refused.62
D4.7 Speaking just before the Carter ruling, a
Canadian physician said that
she would neither provide euthanasia nor refer a patient to someone who
would because she would be "sending somebody to their death." In response,
Dr. James Downar, a palliative and critical care physician and euthanasia
activist, warned that "conscientious objection in this context can serve as
a barrier" and must not be allowed to "impinge on the patients’ right to
receive what would be a legal treatment.63
D4.8 Immediately after the Carter ruling, CMA
President Dr. Chris Simpson implied that physicians should not be forced to
participate in euthanasia or assisted suicide through referral.64 Responding
to his comments, Jocelyn Downie insisted that physicians, "have a duty to
refer" that would be "spelled out in the legislation."65
D5.1 Recall that Jocelyn Downie was a member of the
Royal Society panel chaired by Udo Schuklenk (D3.1).
Watching the Supreme Court of Canada hearing in Carter, Schuklenk
acknowledged that objectors were not required to provide abortions. However,
on the subject of referral for abortion and euthanasia, he continued:
However, this lawyer wanted to extend conscience based
protections. Today health care professionals are legally required to pass
the help-seeking patient on to a health care professional willing to provide
the requested service. The lawyer wanted to strike out such an obligation. I
am not a fan of conscientious objection rights anyway, so I hope the Court
will ignore this.66
D5.2 By 2015 Schuklenk was arguing that objecting
physicians should not be accommodated at all. Among his arguments was a
point that physicians who object to referral agree with: that referring for
abortion or euthanasia is not a compromise because it involves moral
complicity in the act, "barely reduced" by the act of referral.67
D5.3 This implied that physicians should be forced to
provide abortion and euthanasia, notwithstanding religious or conscientious
convictions to the contrary, a position explicitly adopted by
Schuklenk over the next two years.68,69
D5.4 At the same time, Ottawa law professor Amir
Attaran was insisting that physicians should be forced to kill eligible
patients themselves.70 He claimed that this was required by human rights law,71
describing effective referral as an unacceptable form of illicit
discrimination.72