Category: Project Essays

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]

“NO MORE CHRISTIAN DOCTORS”

  Crusade against NFP-only physicians

“Religious beliefs should remain where they belong – in the private domain.”

 Sean Murphy*

Abstract

A 25 year old woman could not obtain a prescription for contraceptives at a clinic because the physician did not prescribe them for reasons of “medical judgment as well as professional ethical concerns and religious values.”  She obtained the prescription at a clinic two minutes away. A crusade was started against the physician and two colleagues with the same views. Crusaders argued that in a ‘secular’ state health care system, physicians should be forbidden to act on their moral or religious beliefs.

Physicians who refuse to prescribe contraceptives face a difficult challenge, since aggressive contraceptive promotion has left most people unaware of alternatives. Further, the social progress of women is widely attributed to contraceptives, so that failure to provide them risks an adverse reaction. Nonetheless, based on a respectful understanding of female fertility cycles and other factors, plausible reasons can be given to justify refusal to prescribe contraceptives and recommendation of Natural Family Planning.

The Supreme Court of Canada has acknowledged that secularists are believers, no less persons with religious beliefs. There is no legal warrant for the idea that a secular state must be purged of the expression of religious belief. The claim that a secular state or health care system is “faith-free” is radically false. Both religious belief and secularism can result in narrow dogmatism and intolerance, as demonstrated by the crusade against the physicians.

Since the practice of medicine is an inescapably moral enterprise, every decision concerning treatment is a moral decision. Since the practice of morality is a human enterprise, the secular public square is populated by people with many moral viewpoints. To discriminate against religious belief is a distortion of liberal principles. Moreover, if religious believers can be forced to do what they believe to be wrong, so can non-religious believers. This would establish a destructive and dangerous ‘duty to do what is wrong.’

It is essential to maintain the integrity of physicians and well-being of patients. After abortion was legalized, a difficult compromise emerged that safeguards both, while protecting the community against a purported ‘duty to do what is wrong.’ Nonetheless, some people are trying to entrench that duty in medical practice, moving from a purported duty to provide or facilitate abortion to a duty to kill or facilitate the killing of patients by euthanasia. It is unacceptable to compel people to commit or even to facilitate what they see as murder, and punish or penalize them if they refuse. It is equally unacceptable to insist that physicians must not act upon beliefs, because it is impossible; one cannot act morally without reference to beliefs. Such policies are inconsistent with the central place occupied by individual conscience and judgment in a liberal democracy.

Freedom of conscience can be adequately accommodated in a society characterized by a plurality of moral and political viewpoints if appropriate distinctions are made. The first of these is the distinction between the exercise of perfective freedom of conscience: pursuing an apparent good – and preservative freedom of conscience: refusing to participate in wrongdoing. The state can sometimes legitimately limit perfective freedom of conscience by preventing people from doing what they believe to be good, but it does not follow that it is equally free to suppress preservative freedom of conscience by forcing them to do what they believe to be wrong.

To force people to do something they believe to be wrong is always an assault on their personal dignity and essential humanity, and it always has negative implications for society. 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, since it instills attitudes more suited to totalitarian regimes than to the demands of responsible freedom. Even the strict approach taken to limiting other fundamental rights and freedoms is not sufficiently refined to be safely applied to limit freedom of conscience in its preservative form. 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.

That a young woman had to drive around the block to fill a birth control prescription does not meet this standard.

Part 1:  The Making of a Story

 

Impartiality, complicity and perversity

 Sean Murphy*

Impartiality, complicity and perversity

Benjamin Veness weighs in on behalf of the Australian Medical Students’ Association (AMSA) to demand that physicians who believe abortion is wrong should be forced to direct patients to a colleague willing to provide it (“Abortion need not be doctor’s dilemma too.” Sydney Morning Herald, 16 November, 2013).

He and medical students who share his views believe that Victoria’s abortion law is the model that ought to apply throughout Australia.  It follows from this that they believe that any Australian physician who refuses to help a patient find someone willing to do a sex selective abortion should be struck from the medical register or otherwise disciplined.

Mr. Veness correctly believes that this would be consistent with Victoria’s abortion law, and he is hardly alone in believing that physicians who refuse to facilitate abortion for reasons of conscience should be disciplined or expelled from the profession.

However, he and the students whom he represents are mistaken in their assumption that a physician who is morally opposed to abortion – whether in principle, or because he has more limited moral objections to practices like sex selective abortion – is not capable of providing information about the procedure and legal options available to a patient.  In fact, many physicians opposed to abortion are quite willing to do so for the very reasons given by Mr. Veness: that the patient may ultimately decide not to go ahead with it.

More remarkable is the fact that the outlook of Mr. Veness and the Australian Medical Students’ Association suggests that only people willing to do what they believe to be gravely wrong ought to become physicians.  Whether or not this is a condition for membership in the AMSA Mr. Veness does not say, but it is not a policy conducive to the ethical practice of medicine.

What is most striking is Mr. Veness’ belief that only physicians willing to facilitate or provide abortions are “impartial,” as if the judgement that an abortion ought to be provided does not involve a moral judgement.  A conviction that abortion is (or can be) a good thing is just as “partial” as the opposite conviction of an objecting physician.  Mr. Veness’ mistaken notion of what it means to be “impartial’ is evidence that he and the AMSA are anything but.

For some physicians, referral is an acceptable strategy for avoiding complicity in what they hold to be wrong or at least morally questionable.  Others find it unacceptable because they believe that referral and other forms of facilitation actively enable wrongdoing and make them parties to it.  Mr. Veness and the AMSA may dispute this, but it is hardly a novel idea.  It is reflected, for example, in Section 45 of the Australian Capital Territory’s Criminal Code (Complicity and common purpose).1

More relevant, perhaps, is the broad definition of “participation” developed by the American Medical Association in its prohibition of physician participation in capital punishment. This includes “an action which would assist, supervise, or contribute to the ability of another individual to directly cause the death of the condemned,” and even giving advice.2

Lest the connection with capital punishment be thought out of place here, Australian medical students and physicians should take note that the arguments used to compel objecting physicians to provide or facilitate abortion are the same ones used by euthanasia advocates who would  force physicians to lethally inject their patients, or help them find someone who will.  That has been obvious in Belgium from the beginning,3 and it has been equally evident in Canada,4 most recently in Quebec.5

What is gradually becoming clear is that policies and laws devised to ensure the “accessibility” of abortion by suppressing freedom of conscience among health care workers lead ultimately to a perverse conclusion: that one can be forced to do what one believes to be gravely wrong, even if that means killing someone else, or finding someone who is willing to do the killing.  That conclusion is profoundly inconsistent with principles that ought to inform the laws and policies of a liberal democracy.

[PDF Text]

Notes

1.  Australian Capital Territory, Criminal Code 2002. (Accessed 2013-11-15)

2.  American Medical Association, Policy E-2.06 Capital Punishment (June, 2000) (Accessed 2013-11-15)

3.  Murphy, Sean. Belgium: Mandatory referral for euthanasia.

4.  A panel of the Royal Society of Canada recommended legalization of assisted suicide/euthanasia. The panel stated that, since physicians who are unwilling to provide what it delicately termed “certain reproductive health services” are obliged to refer patients to others who will (a contested assertion), physicians who refuse to provide (legal) euthanasia or assisted suicide for patients “are duty-bound to refer them in a timely fashion to a health care professional who will.” Schuklenk U, van Delden J.J.M, Downie J, McLean S, Upshur R, Weinstock D. Report of the Royal Society of Canada Expert Panel:  End of Life Decision Making.  November, 2011, p. 61-62 (Accessed 2011-12-31).

5.  Hearings were held recently by a committee of the Quebec National Assembly concerning a bill to legalize euthanasia by physicians.  State regulators of the professions of medicine, nursing and pharmacy all stated that their codes of ethics (developed as a result of controversies about abortion and birth control) require objecting professionals to refer or find colleagues willing to provide the service(s) to which they object.  It is clear that they mean to apply the same rule to euthanasia, although it is equally clear that this causes some of them some discomfort.  See, for example, the statement of Charles Bernard on behalf of the College of Physicians of Quebec at Quebec National Assembly, Consultations & hearings on Quebec Bill 52: College of Physicians of Quebec. Tuesday 17 September 2013 – Vol. 43 no. 34, T#154

Australian regulator misrepresents physician obligations

Claim that practitioner codes require referral disproved by Australian Medical Association

Sean Murphy*

According to a report in The Examiner, a representative of the Australian Health Practitioner Regulation Association told a Tasmanian legislative committee that physicians who object to a procedure for reasons of conscience are obliged by professional codes of ethics to refer patients to another physician.  Lisa McIntosh was addressing the Committee concerning a proposed Reproductive Health Bill.

Her assertion is contradicted by a submission by the Australian Medical Association Tasmania, which protested the section of the bill that would force objecting physicians to facilitate morally contested procedures by referral.  The AMA Tasmania submission included quotes from the AMA Code of Ethics and a document from the Medical Board of Australia Good Medical Practice to demonstrate that the draft legislation information paper falsely claimed that there was a duty to refer.

The Committee also heard from Catholic Archbishop Adrian Doyle, whose concerns about the proposed bill included the mandatory referral provision.

 

The problem of unregulated conscientious objection

  Sean Murphy*

In late 2010, the Parliamentary Assembly of the Council of Europe (PACE) was presented with a report from its Social, Health and Family Affairs Committee expressing deep concern about the problem of “unregulated conscientious objection” in Europe.  The Committee proposed to solve this problem by having states adopt “comprehensive and clear regulations” to address it.

The Council ultimately adopted a resolution that almost completely contradicted the premises of the report, but in 2011 the theme was resurrected by Dr. Leslie Cannold, an Australian ethicist.  Dr. Cannold warned that, “[a]t best, unregulated conscientious objection is an accident waiting to happen,” and, at worst, “a sword wielded by the pious against the vulnerable with catastrophic results.”  It was, she wrote, “a pressing problem from which we can no longer, in good conscience, look away.” . . .[Full text]