Commentary | Hyde Park: Must doctors perform procedures they deem immoral?

Christopher Leo

Point

A debate has arisen in Ontario that cuts to the core of staunchly held conceptions of morality and individual rights.

This summer, the College of Physicians and Surgeons of Ontario (CPSO) – the licensing body for doctors in the province – released a draft policy entitled Physicians and the Ontario Human Rights Code.

The document describes physicians’ current obligations to their patients under the Ontario Human Rights Commission (OHRC) regarding matters of discrimination and the accommodation of disabilities.

Causing concern among members of the Ontario Medical Association is the policy’s new code of conduct regarding a doctor’s personal, moral, or religious beliefs, and the impact such beliefs may have on decisions made within a professional capacity.

The central policy passage instigating the most intense ire states the new direction clearly. “Personal beliefs and values and cultural and religious practices are central to the lives of physicians and their patients. However, as a physician’s responsibility is to place the needs of the patient first, there will be times when it may be necessary for physicians to set aside their personal beliefs in order to ensure that patients or potential patients are provided with the medical treatment and services they require.”

The implications of this policy are that doctors who refuse to perform abortions, prescribe birth-control pills, or refer same-sex couples to a fertility clinic may be engaging in professional misconduct subject to disciplinary measures under the Ontario Human Rights Code, up to and including the loss of their license to practice medicine in the province.

A series of articles and commentary on the issue in the National Post this August prompted Dr. Preston Zuliani, president of the CPSO, to write a letter to the editor, which reads, “All services that doctors provide…are [already] subject to the obligations of the Human Rights Code.”

“If physicians feel they cannot provide a service for [moral or religious] reasons, the draft policy does expect physicians to communicate clearly, treat patients with respect, and provide information about accessing care.”

Zuliani is correct. Public health care is funded by our government and by taxpayers. Ever since the Supreme Court of Canada’s decision in R. v. Morgentaler (1988), our country is one of only a few worldwide with no legal restrictions on abortion, just like none exist on birth control, or for same-sex couples, and so on.

While it is well within the purview of each individual to decide his or her personal beliefs, the fact is that doctors are performing a public service in a public sphere, and therefore should not be able to deny taxpayers those services that the government has deemed legal, acceptable, and medically necessary.

The vital question is this: to what extent should a doctor’s personal, moral, and religious beliefs affect the professional decisions he or she makes in the performance of a public service? Should a Jehovah’s Witness doctor be allowed to refuse the provision of a life-saving blood transfusion? What happens when a young woman in a small rural town seeks an abortion referral from her local doctor and is denied? Should doctors be held responsible for this invocation of personal moral beliefs that could have a negative impact on a patient’s life?

An examination of access to abortion services in Atlantic Canada illustrates just how important these new recommendations are. A detailed study released in the summer of 2007 by Canadians for Choice showed that in Nova Scotia, only four out of 30 hospitals offer the procedure; Labrador and P.E.I. hospitals offer no abortion services; Newfoundland has three hospitals that will perform the procedure; and in New Brunswick, strict regulations mean that a woman seeking an abortion must obtain two testimonials from doctors willing to say it is medically necessary before she can proceed.

In many instances, researchers who contacted Atlantic hospitals about abortion services were greeted with personnel largely unfamiliar with their abortion policies who failed to provide referrals if no doctor at the hospital performed the procedure.

While the Supreme Court has deemed there should be no legal limits on abortion in this country, the health care sectors of many provinces still make it difficult for a woman to exercise personal choice in this matter. It is sobering and shameful that 20 years after R. v. Morgentaler, women all across this country still remain vulnerable to such discrimination.

Canada is not alone in examining this issue. On August 18 of this year, when a medical clinic in California refused to artificially inseminate a woman in a same-sex relationship, the Supreme Court of California ruled that the rights of religious freedom and free speech do not exempt a physician from compliance with the state’s Civil Rights Act’s prohibition against discrimination based on sexual orientation.

Undoubtedly, if the new draft policy of the CPSO is successfully implemented, the effects will be far reaching. Medical schools in the province will need to talk more openly about the procedure and teach it to more students, and physicians providing medical services will have to be especially careful that the way in which services are rendered complies with all provisions in the Ontario Human Rights Code and does not constitute grounds for discrimination.

There is no real legal precedent in place in Canada regarding the balancing of patient-physician rights. In this way, the draft policy of the CPSO is setting up new territory for the courts to define how best to balance freedom of conscience and religion with equality rights.

This issue goes far beyond abortion. Just as the separation of church and state helps to ensure respect of personal beliefs and equality of rights, so too must we respect the rights of patients to receive publicly funded medical services without discrimination from those individuals paid to provide them.

Christopher Lee is a student at Acadia University. This piece was originally written for the Canadian University Press.

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Conor Lynch

Counterpoint

Human rights – real and fundamental human rights – are facing an unprecedented assault in this country by an organization that, at least in name, is intended to protect them.

I am referring, of course, to the notorious Human Rights Commissions at both the provincial and federal levels. These ineffably infallible institutions are now recommending that doctors be forced to provide abortions, regardless of their religious beliefs, and in violation of charter rights to freedom of conscience.

On September 1, the Ontario Human Rights Commission issued “guidance” to the College of Physicians and Surgeons of Ontario (CPSO) – Ontario’s licensing body for doctors – on its compliance with the Ontario Human Rights Code.

Specifically, they noted: “Doctors, as providers of services that are not religious in nature, must essentially ‘check their personal views at the door’ in providing medical care.”

Reading further we find that, should the policy be applied, doctors who refuse to perform abortions, or prescribe morning after pills, would be stripped of their ability to practice medicine in the province.

They would no longer be able to object because “‘moral beliefs,’ per se, are not protected by the Code.”

Unfortunately, the CPSO appears prepared to comply.

This is an appalling turn of events. Regardless of one’s personal views on the preternaturally controversial issue of abortion, it is undeniable that a significant population finds the practice to be morally abhorrent.

One must ask if it is not reasonable to allow Catholics, Orthodox Jews, Evangelical Christians, and devout Muslims the right to conscientiously object to the performance of an act they equate with murder. A reasonable person would say it is. However, the members of the Ontario Human Rights Commission (OHRC) are clearly not reasonable people.

This is not surprising, as those in left-wing circles often do not grasp the stakes involved in the abortion issue for pro-life individuals. Much of the abortion debate currently centres on the point, in terms of biological development, at which a fetus becomes a person and qualifies for legal protection.

People argue over whether brainwave activity or a child’s capacity to survive unassisted outside the womb is the critical factor. But to a pro-lifer, the conversation over this or that trimester is just so much horse-trading by self-interested politicians and agnostic scientists. They argue that since human rights are morally, rather than biologically, derived, it does not make sense to use a biological definition to ascribe them.

Even if you’ve never taken a scalpel to a corpse in search of its freedom of speech, you have to admit they have a point.

According to this perspective, every fetus, during every stage of pregnancy from conception to birth, is a human being with a genuine right to life. For pro-lifers, forcing an Ontario doctor to perform abortions against religious convictions is the moral equivalent of forcing a Bavarian doctor to euthanize Jews.

Right-to-life organizations routinely place Holocaust counters on their web sites ticking up the 40-million lives they claim have been lost to legalized abortion.

Now, comparisons to Nazi Germany are often over-wrought, but in this case, it bears mention as a religious minority is once again facing government persecution, albeit of a clearly different scale.

You may not agree with the prohibition of abortion. In fact, if you’re attending university, it’s highly likely you describe yourself as pro-choice. But, what we are currently facing is not a legal challenge to abortion rights. On the contrary, the status of abortion in Canada is enshrined for the foreseeable political future.

Rather, the OHRC has thrown down the gauntlet over a doctor’s right to conscientious objection. Freedom of conscience is as essential in a democracy as freedom of speech or political assembly. We cannot allow our rights to be stolen from us by hook or by crook, or even whittled away from those with whom we might disagree.

If we don’t speak up now for pro-life doctors and surgeons, if we fail to halt the predations of this unaccountable bureaucracy, we may one day live to regret our moment of inaction.

Conor Lynch is a student at Concordia University. This piece was originally written for the Canadian University Press.


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