Polish law and conduct of Polish physicians, clergy, activists and authorities leads to adverse judgement

Sean Murphy*

The European Court of Human Rights has issued a judgement adverse to freedom of conscience and ordered Poland to pay two complainants, a mother and daughter, a total of 61,000 Euros in damages and costs. Subject to the possibility that the English translation of the judgement is faulty, the use of the term “anti-choice activist” by the judges brings their impartiality into question. However, the facts of the case outlined in the judgement suggest that the conduct of Polish health care personnel, anti-abortion activists, clergy and state authorities effectively guaranteed an adverse outcome.

A 14 year old girl, P. supported by her mother, S., sought an abortion for a pregnancy alleged to have been the result of a rape. While she obtained the necessary prosecutor’s certificate for the procedure, mother and daughter received contradictory information from two public hospitals in Lublin. Further, health care personnel clearly violated principles of patient confidentiality and informed consent in an effort to dissuade the girl from having an abortion. These violations included clearly coercive and manipulative tactics. P and S experienced

the intervention of a priest and anti-abortion activists, unsolicited and unwanted,
importuning by anti-abortion activists that included confrontations in public,
national media attention, including a press release issued by a hospital concerning P,
detention and six hours of questioning by the police,
apprehension of the girl by state authorities, apparently for the express purpose of preventing the abortion,
posting on internet by the Catholic News Agency of the girl’s travel to Gdansk for an abortion,
the filing of criminal charges against the girl for having had unlawful sexual intercourse with a minor (i.e., the rape that resulted in pregnancy)

While the court found that objecting physicians had a legal obligation to refer patients for abortion, the source of that legal obligation was Polish law. Article 39 of Poland’s Doctor and Dentist Professions Act imposes a legal obligation of referral. The imposition is objectionable in principle, but the European Court of Human Rights can hardly be criticized for applying Polish law to Polish citizens.

General Medical Council guideline criticized by Protection of Conscience Project

Unfair to impose “long-discredited policies of forced conversion and exclusion”

NEWS RELEASE

Protection of Conscience Project

The Protection of Conscience Project has expressed concern that the state physician regulator in the United Kingdom intends to prosecute those who refuse to convert to the religious, moral or ethical systems it approves. If actual conversion is not required, it appears that by forcing physicians to do what they believe to be wrong as a condition of practising medicine, the regulator “may simply be resurrecting the Test Act in modern professional dress.”

The criticisms appear in a Protection of Conscience Project submission to the General Medical Council (GMC) of the United Kingdom in response to the draft GMC guideline Personal Beliefs and Medical Practice. The Project comments that “it would be unfair to impose on physicians long-discredited policies of forced conversion and exclusion that would be plainly unacceptable to other professions and to the people of the United Kingdom as a whole.”

The Project submission points out that it would be hypocritical for the GMC to discipline objecting physicians who refuse to refer for morally contested treatments, since they act on the same principles applied by the GMC in its policies on organ trafficking and assisted suicide. Strong exception is taken to the suggestion that physicians act like bigots if they refuse to facilitate adultery, premarital sex, and morally contested services like the mutilation or amputation of healthy body parts or the killing of human embryos or fetuses.

In other respects, the Project expressed qualified agreement with the provisions of Personal Beliefs and Medical Practice and identified parts of the guideline requiring clarification. Specifically, physicians

should do their best to notify patients and employers in advance of treatments to which they object for reasons of conscience, though they cannot be expected to anticipate every possible conflict;
should not refuse to provide treatment or care to a patient on the grounds that she has had a previous morally contested treatment;
must be prepared to treat “the health consequences of lifestyle choices” with which they disagree or to which they object (though not to provide morally contested treatments);
should disclose beliefs only when the disclosure is solicited by a patient, or when it is reasonable to believe that it would be welcomed by the patient;
should limit discussion of beliefs to what is relevant to the patient’s care and treatment, taking into account the importance of dialogue that is responsive to the needs of the patient.

The Project cautioned the GMC that physicians should not be discplined or criticized for a conversation naturally arising from the disclosure of conscientious objection, since disclosure is required by its guidelines. It also warned that an adverse emotional response by a patient is not necessarily evidence of professional misconduct.

The Protection of Conscience Project is a non-profit, non-denominational initiative that advocates for freedom of conscience in health care. The Project does not take a position on the morality or desirability of controversial procedures or services.

Project Submission to the General Medical Council of the United Kingdom

Re: Personal beliefs and medical practice: A draft for consultation

Background | The General Medical Council is the state agency that regulates the medical profession in Britain. A draft guideline on personal beliefs and medical practice generated concern that, if adopted, it would produce an “atmosphere of fear” among physicians who are religious believers. Project Submission

In the True North Strong and Free

Project Letter to the Calgary Herald

Sean Murphy*

Twelve years ago, an editorial in the Calgary Herald1 expressed hope that a bill proposed by MLA Julius Yankowsky2 would ensure that health care professionals would not be forced to participate in procedures or services to which they objected for reasons of conscience.

The editorial cited the example of coerced participation of nurses in late term abortions at Foothills Hospital3 and the case of Maria Bizecki, a pharmacist facing discipline for refusing to dispense the morning after pill.4 The bill, said the editorial, was “a common sense compromise” that would respect freedom of conscience without preventing access to abortion or drugs. Yankowsky’s bill did not pass, but a common sense compromise was eventually worked out between Ms. Bizecki and her employer, the Calgary Cooperative Association.5

While Ms. Bizecki’s case was grinding slowly forward, she and Professor Donald De Marco met the Herald editorial board. Danielle Smith, then a member of the board, was at the meeting. So was Herald columnist Naomi Lakritz, who, at one point, personally congratulated Ms. Bizecki for her stand.6

Danielle Smith, now leader of the Wildrose Party, appears to be advocating the kind of compromise supported by the Herald when it expressed support for freedom of conscience for health care professionals. Ms. Lakritz, however, seems to have changed her mind.

“The word ‘conscience,’” she writes, “is now being used to advocate doing the wrong thing” – like refusing to dispense the morning after pill. (“Conscience rights is another way of allowing discrimination.”Calgary Herald, 10 April, 2012)

Ms. Lakritz is not alone in this belief. She reports that Alison Redford, the Premier of the province, is actually frightened by suggestions that at least some people in Alberta might refuse to do what they believe to be wrong. We are told that Liberal and NDP leaders also oppose freedom of conscience, and that the Alberta Party leader condemns protection of conscience legislation as “an exercise in exclusion,” a point apparently overlooked by those who drafted Section 2(a) of the Canadian Charter of Rights and Freedoms.

According to Ms. Lakritz, the Premier believes that suppression of freedom of conscience demonstrates respect for diversity, that people are treated with “dignity and respect” when they are forced to do what they believe to be wrong, and that threatening conscientious objectors with dismissal makes people feel “safe and included.”

We are not told if the Premier and other leaders opposed to freedom of conscience insist that their candidates sacrifice their personal integrity in order to run for office. Nor does Ms. Lakritz tell us if employees at the Calgary Herald must do what they believe to be wrong as a condition of employment or promotion.

She does, however, claim that those who, for reasons of conscience, refuse to provide a legal drug or service act wrongly and dishonourably because they thus treat some people “as though they were much less equal to others.” This is like saying that refusing to sell tobacco is wrong because it treats smokers “as though they were much less equal” to non-smokers, or that refusing to facilitate prostitution is dishonourable because it denies equality to ‘sex trade workers.’ Even if one accepts such a peculiar notion of equality, however, equality is not the only principle relevant to the moral evaluation of an act. Moreover, the mere legality of a product or service imposes no duty to provide it or to affirm its moral acceptability. Ms. Lakritz made this clear when she excoriated Henry Morgentaler and abortion rights groups for suggesting that Catholic bishops should ask people to stop protesting abortions – a legal, tax-paid service.

“[The bishops] are not exactly known for indulging in moral relativism,” she observed.

“What this society needs is more people like them who take a firm stand on issues and do not apologize for refusing to be swayed by whatever current compromise passes for morality.”7

It is a pity that Ms. Lakritz no longer believes this: that she now holds that such people are “truly disgusting,” and that personal integrity and courage are grounds for dismissal in the true north strong and free.

O, Canada.

Notes

1. “Editorial, The Calgary Herald, April 11, 2000. (Accessed 2012-04-11)

2. Bill 212, Human Rights, Citizenship and Multiculturalism Amendment Act, 2000.

3. Ko, Marnie, “Personal Qualms Don’t Count: Foothills Hospital Now Forces Nurses To Participate In Genetic Terminations.” Alberta Report Newsmagazine, April 12, 1999

4. Mastromatteo, Mike, “Alberta Pharmacist Vindicated for Pro-Life Stand.” The BC Catholic, 3 November, 2003

5. Gerald D. Chipeur to the Calgary Co-operative Association Re: Maria Bizecki, 19 December, 2001

6. E-mails from Maria Bizecki to the Administrator, Protection of Conscience Project, 10 and April, 2012.

7. Lakritz, Naomi, “Hypocrite Henry: Morgentaler exercises his own brand of violence.” Winnipeg Sun, 17 January, 1995 (Accessed 2012-04-13)

A correction and qualifications

Letter to the Editor
The BC Catholic
Vancouver, B.C. Canada

20 February, 2012

Sean Murphy, Administrator
Protection of Conscience Project

A correction and some qualifications are in order with respect to the article by Deborah Gyapong about the contraception insurance controversy in the United States (“A Canadian debate over contraception is unlikely,” BC Catholic, 20 February, 2012).

In the first place, Mr. Roche of the Catholic Health Association of Canada is mistaken in his assertion that Catholic hospitals in Canada cannot be compelled to do things contrary to Catholic teaching. In 2006, St. Elizabeth’s Hospital in Humboldt, Saskatchewan, operated by the Saskatchewan Catholic Health Association, decided to stop doing contraceptive sterilizations. Public protests resulted, and a woman denied a tubal ligation filed a human rights complaint. In June, 2007, St. Elizabeth’s was transferred to the Saskatoon Health Region and re-named the Humboldt District Hospital. Three months later, the Saskatchewan Catholic Health Corporation agreed to pay almost $8,000.00 to the complainant in the human rights action to settle the case.1 It would be most unwise to think that this kind of thing could not happen again.

Concerning the situation in the United States, it is true that the Catholic bishops, in a remarkable display of unanimity, have been vocal in protesting the demand to provide insurance coverage for surgical sterilization, contraceptives and potentially embryocidal or abortifacient drugs or devices. Many of them have said that they will refuse to comply with the law. It does not appear that they share Mr. Roche’s view that an emphasis on Catholic identity may be counterproductive with respect to the mission of Catholic health care. Nor do they seem to think that Catholic identity and Catholic mission are in conflict with each other, though they may well be in conflict with dominant social norms – as the example of what used to be St. Elizabeth’s Hospital demonstrates.

The prominence of the Catholic response notwithstanding, this is not a ‘Catholic’ issue. Strong protests have also been made by Jewish groups, Southern Baptists, Lutherans and Evangelical Christians. Colorado Christian University, a non-Catholic institution, filed suit months ago against the U.S. federal government because of this mandate.2 Two more lawsuits have just been filed by Southern Baptist and Reformed Presbyterian colleges.3 And former governor of Arkansas, Mike Huckabee. recently declared that the response to the Obama administration’s mandate reminded him of President John F. Kennedy’s statement to the people of Berlin after the erection of the Berlin Wall: “Ich bin ein Berliner” (I am a Berliner). Huckabee, a Baptist , said, “In many ways, thanks to President Obama, we’re all Catholics now.”4

Testifying before a committee of the U.S. House of Representatives, Rabbi Meir Soloveichik warned that “not only does the new regulation threaten religious liberty in the narrow sense, in requiring Catholic communities to violate their religious tenets, but also the administration impedes religious liberty by unilaterally redefining what it means to be religious.”5

So this is not a ‘Catholic’ issue. Nor is it about women, or health, or birth control or contraception, as Dr. Laura Champion told the same committee. As the Director of Health Services at Calvin College in Michigan, she explained that the College has no objections to contraception, but she was emphatic that the morning after pill is not the same as cancer screening or vaccinations. “Pregnancy is not a disease,” she said. “This is a premise that I reject both religiously and medically.”6

Finally, the BC Catholic story states that the Catholic Health Association of the United States “decided on ‘a cautious acceptance’ of the compromise.” However, the actual wording of the newly published regulation is exactly the same as the wording that launched the firestorm of protest in late January.7 The administration’s promises have no legal significance, and, in any case, will not be fulfilled before the November presidential election. The description of the scheme as a ‘compromise’ thus seems premature.

Notes:

1. CBC News, 13 September, 2007, “Woman given settlement after being denied tubal ligation.”(Accessed 2012-02-20)

2. To see a graphic illustration of the resistance to the HHS mandate, see the interactive map.

3. Alliance Defence Fund news releases, 20 February, 2012 : “ADF, Louisianna College challenge Obama Mandate“; “ADF, Geneva College to reveal lawsuit against Obama mandate Tuesday” (Accessed 2012-02-20)

4 “Mike Huckabee’s Full Speech at CPAC 2012.” ABC News, 10 February, 2012 (Accessed 2012-02-20)

5. Lines Crossed: Separation of Church and State. Has the Obama Administration Trampled on Freedom of Religion and Freedom of Conscience? US House of Representatives Committee on Oversight and Government Reform,16 February, 2012: Testimony of Rabbi Meir Soloveichik

6. Lines Crossed: Separation of Church and State. Has the Obama Administration Trampled on Freedom of Religion and Freedom of Conscience? US House of Representatives Committee on Oversight and Government Reform,16 February, 2012: Testimony of Laura Champion, MD.

7. PART 147—Health Insurance Reform Requirements for the Group and Individual Health Insurance Markets § 147.130 Coverage of preventive health services.