Project letter to the New Brunswick Minister of Health

Re: compulsory referral for abortion

3 December, 2014

The Honourable Victor Boudreau,
Minister of Health,
HSBC Place,
P. O. Box 5100
Fredericton, NB
Canada E3B 5G8

Dear Mr. Boudreau:

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 acceptability of morally contested procedures.

I am writing about a statement attributed to you in the Fredericton Daily Gleaner:

Health Minister Victor Boudreau: “No physician can be forced to [perform abortions], but at the same time there is a duty to refer to someone who will.”¹

It is instructive to compare this to a demand made by a panel of experts of the Royal Society of Canada:

Royal Society Panel: “. . . health care professionals are not duty bound to accede to [requests for euthanasia and assisted suicide] . . . but . . . they are duty bound to refer their patients to a health care professional who will.”²Since you are new to the position of Minister of Health, you are likely unaware of the fact that arguments used by those who demand that physicians be forced to refer for abortion are also used to demand that they be forced to refer for euthanasia or assisted suicide. It was for this reason that the Protection of Conscience Project joined an intervention in the case of Carter v. Canada in the Supreme Court of Canada.³

Counsel for the Project told the Supreme Court justices that what is demanded by the Royal Society experts (and, perhaps, the New Brunswick government?) is “precisely the sort of thinking that, in our submission, ought to be protected against.”⁴

Any number of physicians may agree to referral for abortion or other controversial procedures because they find that it relieves them of a moral burden or of tasks they find disturbing or distasteful. However, for others, as Holly Fernandez-Lynch has observed, referral imposes “the serious moral burdens of complicity.”⁵ They refuse to refer for abortion because they do not wish to be morally complicit in killing a child, even if (to use the terminology of the criminal law) it is, legally speaking, “a child that has not become a human being.”⁶

Just as these physicians refuse to facilitate killing before birth by referring patients for abortion, they and other physicians would refuse to facilitate killing patients after birth by referring them for euthanasia or assisted suicide. Influential academics and abortion and euthanasia activists want to force objecting physicians to do both.

Professor Jocelyn Downie of Dalhousie University was one of the architects of the Carter case,⁷ a member of the Royal Society panel, and a long-time advocate of compulsory referral for abortion.⁸ She was live- tweeting the hearing from the courtroom. Udo Schuklenk, one of her fellow Royal Society experts, was following the proceedings via a live audio-video link. He described most of the interveners as “Christian activist groups, some more fundamentalist than others.” After questioning the integrity of “the God folks,” he commented on the joint intervention involving the Project:

Then there was a lawyer representing groups called the Faith and Freedom Alliance and the Protection of Conscience Project. He . . . asked that the Court direct parliament to ensure that health care professionals would not be forced to assist in dying if they had conscientious objections. That, of course, is the case already today in matters such as abortion. 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.⁹ (Emphasis added)You can see clearly from this that Professors Downie, Schuklenk and their supporters hold that because physicians can be forced to refer for abortion, they can and ought to be forced to refer for euthanasia and assisted suicide. The weakness in this claim is the false premise that objecting physicians can or ought to be compelled to refer for abortion. Notwithstanding your assertions and the views of Dr. Haddad and Professors Downie and Schuklenk, this claim is sharply disputed, and for good reason.

Physicians are required to disclose personal moral convictions that might prevent them from recommending abortion, but not to refer the patient or otherwise facilitate the procedure. The arrangement preserves the integrity of physicians, and it safeguards the legitimate autonomy of the patient, who is free to seek an abortion elsewhere.¹⁰ But it also protects the community against the temptation to give credence to a dangerous idea: that a learned or privileged class, a profession or state institutions can legitimately compel people to do what they believe to be wrong.

Just how far this can go is now coming into focus, thanks to the Royal Society’s panel of experts and their supporters. They argue that it is not sufficient to simply encourage and allow willing health care professionals to kill patients. They demand that health care professionals be compelled to participate in and facilitate the killing of patients – even if they believe it to be wrong, even if they believe it to be murder – and that they should be punished if they refuse to do so.

Killing is not surprising; even murder is not surprising. But to hold that the state or a profession can, in justice, compel an unwilling soul to commit or even to facilitate what he sees as murder, and justly punish or penalize him for refusing to do so – to make that claim ought to be beyond the pale. It is profoundly dangerous, for if the state or civil society or professional organizations can legitimately require people to commit or aid in the commission of murder, what can they not require?

Particularly in view of the possibility that the Supreme Court of Canada might legalize physician assisted suicide and euthanasia, it is of grave concern that your comments can be taken to be supportive of the movement to develop and entrench a ‘duty to do what is wrong’ in medical practice. I know of no other profession that has accepted such a duty as a requirement of membership, and I am certain that the Liberal Party of New Brunswick does not and would not impose such a duty upon its members.

I have enclosed an abstract (in English and French) of the Project’s recent submission to the College of Physicians and Surgeons of Ontario about its policy, Physicians and the Ontario Human Rights Code, which is relevant in this case. The full submission, which is on line, is available in English only.

I note that a CBC news reported in July that the President of the New Brunswick Medical Association, Dr. Camille Haddad, included refusal to refer for abortion among alleged “barriers to access” to the procedure. The CBC report added, “The society says it wants the New Brunswick government to come up with a plan to address those barriers.”¹¹

If Dr. Haddad or others have urged you to adopt policies to promote access to abortion, that is outside the scope of Project concerns. However, I respectfully suggest that a plan to address alleged “barriers” must not include the suppression of freedom of conscience among physicians by compelling them to refer for abortion. The state has other means at its disposal to deliver the service.

Sincerely,

Sean Murphy, Administrator
Protection of Conscience Project

Notes
1. Huras A. “Abortions won’t be available in all hospitals.” Fredericton Daily Gleaner, 28 November, 2014

2. Schuklenk U, van Delden J.J.M, Downie J, McLean S, Upshur R, Weinstock D. Report of the Royal Society of Canada Expert Panel on End-of-Life Decision Making (November, 2011) p. 70 (Accessed 2014-12-02)

3. Murphy S. “Re: Joint intervention in Carter v. Canada– Project Backgrounder.” Supreme Court of Canada, 15 October, 2014. Protection of Conscience Project

4. Murphy S. “Re: Joint intervention in Carter v. Canada- Selections from oral submissions.” Supreme Court of Canada, 15 October, 2014. Protection of Conscience Project

5. Fernandez-Lynch, Holly, Conflicts of Conscience in Health Care: An Institutional Compromise. Cambridge, Mass.: The MIT Press, 2008, p. 229.

6. Criminal Code, Section 238(1). (Accessed 2014-12-02)

7. In a 2007 symposium at Carleton University in Ottawa, Professor Downie asserted that the Supreme Court of Canada might be willing to reverse its 1993 ruling in Rodriguez. She outlined the strategy for a legal challenge under Canada’s Charter of Rights and Freedoms and said that she was looking for an ideal test case to use to strike down the law. She published a paper and essay in 2008 that appear to have drawn from her Carleton presentation. The 2007 presentation and subsequent publication set out the strategy for the plaintiffs’ successful argument in Carter. Professor Downie assisted the plaintiffs in the Carter case in preparing their expert witnesses. “Rodriguez Revisited: Canadian Assisted Suicide Law and Policy in 2007.” Dalhousie University, ListServ Home Page, FABLIST Archives, Message from Rebecca Kukla, 6 February, 2007. “Symposium on physician assisted suicide.” (Accessed 2012-06-27); Schadenberg, Alex, “Dalhousie law professor seeks to re-visit Rodriguez court decision.” Euthanasia Prevention Coalition. Downie J, Bern S. “Rodriguez Redux.” Health Law Journal 2008 16:27-64. (Accessed 2012-06-27.) Carter v. Canada (Attorney General) 2012 BCSC 886, Supreme Court of British Columbia, 15 June, 2012. para. 124. (Accessed 2014-12-02)

8. Rodgers S. Downie J. “Abortion: Ensuring Access.” CMAJ July 4, 2006 vol. 175 no. 1 doi: 10.1503/cmaj.060548 (Accessed 2014-12-02). McLeod C, Downie J. “Let Conscience Be Their Guide? Conscientious Refusals in Health Care.” Bioethics ISSN 0269-9702 (print); 1467-8519 (online) doi:10.1111/bioe.12075 Volume 28 Number 1 2014 pp ii–iv

9. Schuklenk, U. “Supreme Court of Canada heard arguments in Charter challenge to assisted dying criminalisation.” Udo Schuklenk’s Ethx Blog Thursday, October 16, 2014 (Accessed 2014-12-02)

10. Murphy S. “‘NO MORE CHRISTIAN DOCTORS.’ Appendix ‘F’- The Difficult Compromise: Canadian Medical Association, Abortion and Freedom of Conscience.” Protection of Conscience Project

11. “New Brunswick Medical Society calls for abortion access plan: Doctors’ group says 2 doctor rule no different than any other procedure.” CBC News, 26 July, 2014 (Accessed 2014-12-02)

New Brunswick health minister unaware of abortion-euthanasia connection

Project Letter to the Editor,
Fredericton Daily Gleaner

Sean Murphy*

Re: “Abortions won’t be available in all hospitals. “The Fredericton Daily Gleaner, 28 November, 2014

New Brunswick’s Minister of Health and the President of the province’s Medical Society both claim that physicians who refuse to provide abortion for reasons of conscience have an obligation to refer patients to colleagues who will. These assertions contradict the positions of the Canadian Medical Association and the College of Physicians and Surgeons of New Brunswick. Mr. Boudreau and Dr. Haddad also fail to recognize how such a policy would play out should assisted suicide and euthanasia be legalized. The Protection of Conscience Project intervened at the Supreme Court of Canada in the Carter case on precisely this point.¹

Some influential academics have been attempting to force physicians to refer for abortion for years. They now claim that “because” physicians can be forced to refer for abortion, they should be forced to refer for euthanasia.² If they have succeeded in converting Mr. Boudreau and Dr. Haddad to their point of view, it is not shared by physicians who refuse to be parties to killing, before or after birth.

The Canadian Medical Association expects physicians who decline to provide abortions for reasons of conscience to notify a patient seeking abortion “so that she may consult another physician.” There is no requirement for referral.³ The College of Physicians of New Brunswick suggests referral as a “preferred practice,” but acknowledges that referral may not be acceptable. Physicians may, instead, provide information about resources available to patients that they can use to obtain the service they want.⁴

Notes:

1. Murphy, S. “Project Backgrounder Re: Joint intervention in Carter v. Canada.” Supreme Court of Canada, 15 October, 2014

3. Murphy S. “‘NO MORE CHRISTIAN DOCTORS.’ Appendix ‘F’- The Difficult Compromise: Canadian Medical Association, Abortion and Freedom of Conscience.” Protection of Conscience Project

4. Comment by College of Physicians and Surgeons of New Brunswick (November, 2002) Re: Declining to provide service on moral/religious grounds.

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.

Bedrock values?

Project letter to The Canadian Pharmaceutical Journal

Sean Murphy*

Polly Thompson asserts that religious tolerance is “a bedrock value of our democracy, and it goes both ways,” but then claims that “the onus is on the health professional to respect the religious beliefs of the patient, not the other way around,” a most peculiar form of tolerant reciprocity. The balance of the editorial demonstrates a troubling ignorance of the legal requirements to accommodate conscientious objectors[1] and de facto contempt of the “bedrock value” she purports to respect in theory. (The Public Trust and Access to Medication, Canadian Pharmaceutical Journal, October, 2004, Vol. 137, No. 8).

Patients and pharmacists have equal claims to freedom of conscience and expression, but one looks in vain in the editorial for a thoughtful analysis of how to deal fairly with conflicts of conscience in health care. A principled approach to conscientious objection would, among other things, distinguish between life-threatening injuries or conditions, and non-emergent situations. To equate the provision of blood transfusions for accident victims with dispensing contraceptives or post-coital interceptives suggests a disappointing editorial interest in polemics, not principle.

Thompson is mistaken when she claims that some pharmacists raise religious objections to her access to medication. Their concerns are not with her access, but with their own moral culpability should they facilitate harmful conduct or other wrongdoing by someone else.

The fact that a drug is legal does not determine this issue. By way of comparison, mouthwash is a legal product commonly sold in pharmacies. It can also be an intoxicant when consumed as a beverage. A conscientious pharmacist might well refuse to sell mouthwash to an alcoholic known to consume it for that purpose, whether or not the product could be accessed elsewhere.

Similarly, the practice of law is a self-regulated profession, and, like pharmacists, lawyers are expected to serve the interests of their clients. But a client cannot force a lawyer to facilitate what the lawyer considers to be a wrongful act – even if the act is legal.

Ms. Thompson’s fierce determination to adhere to her own moral views is not surprising, but she has failed to demonstrate that her morality is so superior that it should be imposed upon those who disagree with her. Indeed, she did not even attempt such a demonstration before calling for the elimination of “troubling holes” and “wiggle room” that make grudging allowance for freedom of conscience in pharmacy. Her message to those unwilling to go along with her is uncompromising; get out of the profession. Given this totalitarian mindset, Ms. Thompson’s complaint that ‘fundamentalist extremists’ dictate policy in the United States invites the waggish response that in Canada they write editorials for professional journals.

Pharmacy regulatory authorities can, with some imagination and good will, find ways to ensure “timely access to legal medication” without suppressing of freedom of conscience in the profession. The Canadian Pharmaceutical Journal can contribute to this kind of fruitful accommodation. But the profession and the public are not well served by the kind of incoherence, intolerance, polemics and ignorance of human rights jurisprudence displayed in its October editorial.

Sean Murphy, Administrator
Protection of Conscience Project

Notes

1. Benson I. “Autonomy”, “Justice” and the Legal Requirement to Accommodate the Conscience and Religious Beliefs of Professionals in Health Care [Internet]. Powell River (BC): Protection of Conscience Project; 2001 Mar. The Canadian Pharmaceutical Journal declined to publish the essay, which was a response to an article by Frank Archer that had appeared in an earlier number of the Journal. See also Murphy S. In Defence of the New Heretics: A Response to Frank Archer [Internet]. Powell River (BC): Protection of Conscience Project; 2000 Jul – also declined by the CPJ.