Protection of Conscience Project Archives - Page 13 of 24 - Protection of Conscience Project News

Joint intervention in Carter v. Canada

Selections from oral submissions

Supreme Court of Canada, 15 October, 2014

Sean Murphy*

Introduction:
The Catholic Civil Rights League, Faith and Freedom Alliance and the Protection of Conscience Project were jointly granted intervener status in Carter by the Supreme Court of Canada. The joint factum voiced concern that legalization of physician assisted suicide and euthanasia would likely adversely affect physicians and health care workers who object to the procedures for reasons of conscience. The factum was supplemented by an oral submission.

Links to annotated selections from the oral submissions relevant to freedom of conscience are provided below. In each case, readers can access the Supreme Court webcast through the linked image. Time stamps are cited to allow the relevant section of the webcast to be located. On the Supreme Court website, use “full screen” view when dragging the slider button to the desired time stamp.

Joseph Arvay, Q.C. (Counsel for the Appellants)

Jean-Yves Bernard (Counsel for the Attorney General of Quebec)

Harry Underwood (Counsel for the Canadian Medical Association)

Robert W. Staley (Counsel for the Catholic Civil Rights League, Faith and Freedom Alliance, and Protection of Conscience Project)

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]

Project intervenes in the Supreme Court of Canada

News Release

Protection of Conscience Project

Today the Protection of Conscience Project joined the Catholic Civil Rights League (CCRL) and Faith and Freedom Alliance in a joint intervention at the Supreme Court of Canada in Carter v. Canada, a case seeking the legalization of euthanasia and physician assisted suicide.

The appeal necessarily involves the issue of freedom of conscience for healthcare providers. An indeterminate number of healthcare providers consider killing patients or assisting in suicide morally or ethically abhorrent. Their views are consistent with the current Canadian legal framework, which would be fundamentally changed if euthanasia and assisted suicide were legalized. Such a change in the law would generate demands that physicians and other healthcare providers directly or indirectly participate in what they consider to be gravely immoral activities.

In the event that the Supreme Court strikes down the criminal law as it relates to euthanasia or assisted suicide, the intervention urged the Court to “make clear to the legislature that any legislation in this area must protect the freedom of conscience of healthcare providers,” ensuring that “healthcare providers are not directly or indirectly coerced into becoming parties to killing patients or assisting patients kill themselves.”

In a Backgrounder on the intervention, Project Administrator Sean Murphy notes the need for robust protection for freedom of conscience among healthcare providers if the law is changed. In that case, he argues, direction from the Court will be needed “to correct a dangerous error that has become increasingly widespread: that the state or a profession may impose upon people a duty to do what they believe to be wrong – even if that means killing people.”

Elsewhere, he observes that the history of abortion law reform in Canada demonstrates that healthcare providers “cannot rely on mere promises of tolerance and respect for freedom of conscience.”

” The greater the demand for a procedure -whether the demand arises from the number of patients or from ideological rights claims – the sooner objecting health care workers will face discrimination, harassment and coercion. ”

The intervention was presented on behalf of the interveners by Robert Staley, with the participation of Ranjan Agarwal, Jack Maslen, and Sheridan Scott, all of Bennett Jones LLP, together with CCRL President, Philip Horgan. 27 interventions were approved by the Court.

A decision is expected in the Spring of 2015.

Freedom of conscience

Presented to the Rotary Club
Powell River, British Columbia, Canada

Sean Murphy*

Thank you for inviting me to speak to you this evening. C.S. Lewis once observed that a lifetime of learning leaves a man a beginner in any subject, so I am here as a beginner who is still just beginning. The specific focus of the Protection of Conscience Project is freedom of conscience in health care. However, rather than address issues specific to health care I am going to speak more generally about freedom of conscience. I think a broader approach, a bigger picture, will be more useful for you as Rotarians. I’ll begin with some notes about the history of freedom of conscience and religion. . . Full Text

Project Submission to the College of Physicians and Surgeons of Ontario

Protection of Conscience Project

Re: Physicians and the Ontario Human Rights Code

Abstract [Français]

The Ontario Human Rights Commission made a serious error in 2008 when it attempted to suppress freedom of conscience and religion in the medical profession on the grounds that physicians are “providers of secular public services.” In its public perpetuation of this error, the Commission has contributed significantly to anti-religious sentiments and a climate of religious intolerance in Ontario. Both were on display earlier this year when it became front page news and a public scandal that three physicians had told their patients that they would not recommend, facilitate or do what they believed to be immoral, unethical, or harmful.

The physicians had followed the guidelines of the Canadian Medical Association and the College of Physicians and Surgeons of Ontario. Physicians must advise patients about treatments or procedures they are unwilling to recommend or provide for moral or religious reasons, so that patients can seek the services elsewhere. Physicians are not required help patients obtain services or procedures they believe to be wrong.

The arrangement is a compromise that safeguards the legitimate autonomy patients and preserves the integrity of physicians, but it has been continually attacked by activists who want to compel objecting physicians to provide or facilitate abortion and contraception, and, lately, euthanasia. Essentially, the activists assert that physicians have a duty to do what they believe to be wrong because they must not act upon their moral or religious beliefs.

However, it is incoherent to include a duty to do what one believes to be wrong in a code of ethics, the very purpose of which is to encourage physicians to act ethically and avoid wrongdoing. Moreover, one cannot practise medicine without reference to beliefs, whether they reflect a secular ethic or a religious one, and neither a secular ethic nor a religious ethic is morally neutral. Thus, demands that physicians must not act upon their beliefs or must practise medicine in a morally “neutral” fashion are unacceptable because they are impossible.

The demand that physicians must not act upon religious beliefs because medical practice is a secular profession is unacceptable because it is erroneous. The Supreme Court of Canada has acknowledged that a secular society is not faith-free; it includes both religious and non-religious believers, and rational democratic pluralism must make room for them all. The full bench of the Court has warned that to disadvantage or disqualify the exercise of religiously informed conscience in public affairs is an illiberal distortion of liberal principles that offers “only a feeble notion of pluralism.”

If it is legitimate to compel religious believers to do what they believe to be wrong, then it is equally legitimate to compel non-religious believers to do what they think is wrong; everyone would have a duty to do what is believed to be wrong.

Hence, the compromise worked out by the Canadian Medical Association not only safeguards the integrity of physicians and legitimate autonomy of patients, but 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 participate in what they believe to be wrong – even gravely wrong – even murder – and punish them if they refuse.

Freedom of conscience and freedom of religion are subject to reasonable limitations, but the mantra, “the freedom to hold beliefs is broader than the freedom to act on them” is inadequate. More refined distinctions are required to address the difficulties that arise in a pluralist democracy. One of them is the distinction between the two ways in which freedom of conscience is exercised: by pursuing good and avoiding evil. There is a significant difference between preventing people from doing the good that they wish to do and forcing them to do the evil that they abhor.

As a general rule, it is fundamentally unjust and offensive to force people to support, facilitate or participate in what they perceive to be wrongful acts; the more serious the wrongdoing, the graver the injustice and offence. It is a policy fundamentally opposed to civic friendship, which grounds and sustains political community and provides the strongest motive for justice. It is inconsistent with the best traditions and aspirations of liberal democracy. And it is dangerous, since it instills attitudes more suited to totalitarian regimes than to the demands of responsible freedom.

This does not mean that freedom of conscience exercised to preserve personal integrity can never be limited. It does mean, however, that even the strict approach taken to limiting other fundamental rights and freedoms is not sufficiently refined to be safely applied here. Like the use of potentially deadly force, if the restriction of preservative freedom of conscience can be justified at all, it will only be as a last resort and only in the most exceptional circumstances.

When the College of Physicians and Surgeons of Ontario receives complaints from patients who have been unable to obtain services they want, the College should help connect the patients with willing service providers. That would be more helpful than attempting to suppress freedom of conscience and religion in the medical profession. [Full Text]