As Canada develops its assisted dying legislation, we should be careful to protect health care workers’ right to follow their conscience
Toronto Star
“Contemplating Suicide? We Can Help!” There was a time when such an advertisement pointed to a crisis line, where someone was standing by to counsel you and offer hope in a situation of intolerable pain.
We are in a very different time, now. In a few short months, assisted suicide, its grim reality hidden behind blandly deceptive terms like “medical assistance in dying,” will be declared an acceptable option in our country, enshrined in law. As the federal government prepares legislation to implement the Supreme Court’s decision, it is crucial to consider the effects of this fundamental change in our laws.
Death comes to us all – sometimes suddenly, and sometimes slowly. Although patients benefit from medication that controls pain, they are fully justified in refusing burdensome and disproportionate treatment that serves only to prolong the inevitable process of dying. But dying is simply not the same as being killed. We are grateful for physicians and nurses and others who offer medical assistance to patients who are dying, but it is never justified for them to kill a patient. . .[Full text]
In 2008, when the Council of the College of Physicians and Surgeons of Ontario was considering the final draft of an earlier policy, Physicians and the Human Rights Code, a member of the Council seems to have been troubled by the policy direction being given to the Colllege by the Ontario Human Rights Commission (OHRC).
Speaking during the Council meeting, he drew his colleagues’ attention to a chilling New England Journal of Medicine article by Holocaust survivor, Elie Wiesel: “Without conscience.”1 It was about the crucial role played by German physicians in supporting Nazi horrors. “How can we explain their betrayal?” Wiesel asked. “What gagged their conscience? What happened to their humanity?”2
Now, however, to the applause of the OHRC,3 the College of Physicians and Surgeons of Ontario has approved a policy to gag the consciences of physicians in the province,4 and Saskatchewan is next in line.5 We may soon begin to discover the answers to Wiesel’s questions.
There is no duty to do what is believed to be wrong.
Policies like those adopted in Ontario and proposed in Saskatchewan are incoherent because they purport to include a duty to do what one believes to be wrong in a code of ethics or ethical guidelines, the very purpose of which is to encourage physicians to act ethically and avoid wrongdoing.
Beyond this, when discussion about difficulties associated with the exercise of freedom of conscience in health care is repeatedly characterized as “the problem of conscientious objection,”6 it becomes clear that the underlying premise is that people and institutions ought to do what they believe to be wrong, and that refusal to do what one believes to be wrong requires special justification. This is exactly the opposite of what one would expect. Most people believe that we should not do what we believe to be wrong, and that refusing to do what we believe to be wrong is the norm. It is wrongdoing that needs special justification or excuse, not refusing to do wrong.
The inversion is troubling, since “a duty to do what is wrong” is being advanced by those who support the “war on terror.” They argue that there is, indeed, a duty to do what is wrong, and that this includes a duty to kill non-combatants and to torture terrorist suspects.7 The claim is sharply contested,8 but it does indicate how far a duty to do what is wrong might be pushed. In Quebec, in Ontario and in Saskatchewan it is now being pushed as far as requiring physicians to participate in killing patients, even if they believe it is wrong: even if they believe that it is homicide.9
This reminder is a warning that the community must be protected against the temptation to give credence to the dangerous idea that is now being advanced by medical regulators in Canada: that a learned or privileged class, a profession or state institutions can legitimately compel people to do what they believe to be wrong – even gravely wrong – and punish them if they refuse.
Forcing someone to do wrong is a violation of humanity, not a limitation of freedom.
Attempts to suppress freedom of conscience and religion in the medical profession are often defended using a statement of the Supreme Court of Canada: “the freedom to hold beliefs is broader than the freedom to act on them.”10
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The statement is not wrong, but it is inadequate. It is simply not responsive to many of the questions about the exercise of freedom of conscience that arise in a society characterized by a plurality of moral and political viewpoints and conflicting demands. More refined distinctions are required. One of them is the distinction between perfective and preservative freedom of conscience, which reflects the two ways in which freedom of conscience is exercised: by pursuing apparent goods and avoiding apparent evils.11
It is generally agreed that the state may limit the exercise of perfective freedom of conscience if it is objectively harmful, or if the limitation serves the common good. Although there may be disagreement about how to apply these principles, and restrictions may go too far, no polity could long exist without restrictions of some sort on human acts, so some limitation of perfective freedom of conscience is not unexpected.
If the state can legitimately limit perfective freedom of conscience by preventing people from doing what they believe to be good, 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. There is a significant difference between preventing someone from doing the good that he wishes to do and forcing him to do the evil that he abhors.
We have noted the danger inherent in the notion of a “duty to do what is wrong.” Here we add that, as a general rule, it is fundamentally unjust and offensive to suppress preservative freedom of conscience by forcing 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, since it instills attitudes more suited to totalitarian regimes than to the demands of responsible freedom.
This does not mean that no limit can ever be placed on preservative freedom of conscience. 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 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.
None of these conditions have been met in Ontario or in Saskatchewan.
1. Email to the Administrator, Protection of Conscience Project, from P__ H__ (present at College Council meeting 18 September, 2008) (2014-02-11, 10:10 am)
2. Wiesel E. “Without Conscience.” N Engl J Med 352;15 april14, 2005 (Accessed 2014-02-24)
3. Letter from the Office of the Chief Commissioner, Ontario Human Rights Commission, to the College of Physicians and Surgeons of Ontario, dated 19 February, 2015, Re CPSO Draft Policy: Professional Obligations and Human Rights
7. Gardner J. “Complicity and Causality,” 1 Crim. Law & Phil. 127, 129 (2007). Cited in Haque, A.A. “Torture, Terror, and the Inversion of Moral Principle.”New Criminal Law Review, Vol. 10, No. 4, pp. 613-657, 2007; Workshop: Criminal Law, Terrorism, and the State of Emergency, May 2007. (Accessed 2014-02-19)
8. Haque, A.A. “Torture, Terror, and the Inversion of Moral Principle.”New Criminal Law Review, Vol. 10, No. 4, pp. 613-657, 2007; Workshop: Criminal Law, Terrorism, and the State of Emergency, May 2007. (Accessed 2014-02-19)
9. Quebec has already passed a law purporting to legalize euthanasia: Murphy S. “Redefining the Practice of Medicine- Euthanasia in Quebec, Part 9: Codes of Ethics and Killing.”Protection of Conscience Project, July, 2014. The Supreme Court of Canada has ordered legalization of physician assisted suicide and physician administered euthanasia. When the ruling takes effect in early 2016, the Ontario and Saskatchewan policies, as written, will have the effect of forcing physicians unwilling to kill patients or help them kill themselves to find a colleague willing to do so.
Pontifical Academy for Life; Congregation for the Doctrine of the Faith
PONTIFICIA ACADEMIA PRO VITA
Il Presidente Prot.n.P/3431
Vatican City,
June 9 2005
Mrs Debra L.Vinnedge
Executive Director, Children of God for Life 943 Deville Drive East
Largo, Florida
33771
Stati Uniti
Dear Mrs Debra L.Vinnedge,
On June 4, 2003, you wrote to His Eminence Cardinal Joseph Ratzinger, with a copy of this letter forwarded to me, asking to the Sacred Congregation of the Doctrine of Faith a clarification about the liceity of vaccinating children with vaccines prepared using cell lines derived from aborted human fetuses. Your question regarded in particular the right of the parents of these children to oppose such a vaccination when made at school, mandated by law. As there were no formal guidelines by the magisterium concerning that topic, you said that catholic parents were often challenged by State Courts, Health Officials and School Administrators when they filled religious exemptions for their children to this type of vaccination
This Pontifical Academy for Life, carrying out the commission entrusted to us by the Congregation for the Doctrine of Faith, in answer to your request, has proceeded to a careful examination of the question of these “tainted” vaccines, and has produced as a result a study (in Italian) that has been realized with the help of a group of experts. This study has been approved as such by the Congregation and we send you, there enclosed, an English translation of a synthesis of this study. This synthesis can be brought to the knowledge of the interested officials and organisms.
A documented paper on the topic will be published in the journal “Medicina e Morale”, edited by the Centra di Bioetica della Universita Cattolica in Rome.
The study, its synthesis, and the translation of this material took some time. We apologize for the delay.
With my best regards,
Sincerely yours,
+E.Sgreccia
00193 Roma – Via della Conciliazione, 1 – Tel. 06 698.82423 – 06 698.81693 – Fax 06 698.82014
The case for assisted suicide and euthanasia, at least as it has been presented, is that we may freely dispense with certain moral distinctions, once considered of some importance – between killing yourself and having someone else kill you; between refraining from prolonging life and deliberately ending it – while continuing to insist on any number of others.
The issue is thus invariably cast as if the practice would be reserved for adults of sound mind, in the final stages of a terminal illness, suffering unbearable physical pain, freely consenting to have done to them what they would surely choose to do themselves were they not so disabled. In its most complete form, the patient must not only consent, but actually initiate the process in some way (hence “assisted” suicide, versus euthanasia, where someone else does the deed). At all events we are assured the task would be performed by a licensed physician, no doubt with a sterilized needle. . . [Full text]
On 1 November, Brittany Maynard, a 29 year old woman with terminal brain cancer, committed suicide in Oregon State with the assistance of a physician (and, presumably, a pharmacist), who provided the lethal medication she consumed. Assisted suicide is legal in Oregon; that is why Maynard moved to the state. In the weeks leading up to her death she had become a celebrity because of her public advocacy of assisted suicide, augmented by a kind of “countdown” to the date she had chosen to die. [NBC News]
It is not surprising that the announcement that she had killed herself as planned was followed by an outburst of judgementalism and moralising.
Prominent bioethicist Arthur Caplan stated, “did nothing immoral when she took a lethal dose of pills.” He dismisses the view that “only God should decide when we die” because he finds that inconsistent with the existence of free choice, adding, “To see God as having to work through respirators, kidney dialysis and heart-lung machines to decide when you will die is to trivialize the divine.” [Brittany Maynard’s Death Was an Ethical Choice]
Chuck Currie, a minister of the United Church of Christ in Oregon, also insisted that Maynard had “made a moral choice.” He described committing suicide under the terms of the Oregon law as taking “medically appropriate steps to make that death as painless and dignified as possible” – an appropriate exercise of “moral agency.” Like Caplan, his theological views about the nature of God inform his approach to the issue. [Brittany Maynard Made A Moral Choice]
Writing in the New York Post, Andrea Peyser did not explicitly address either moral or theological questions, but implicit in her headline and awestruck praise for Maynard’s suicide was the premise that the young woman had done a “brave” and good thing. [We should applaud terminally ill woman’s choice to die]
In contrast, the head of the Catholic Church’s Pontifical Academy for Life in Rome, Monsignor Ignacio Carrasco de Paula, said that Maynard’s killing herself was a “reprehensible” act that “in and of itself should be condemned,” though he stressed that he was speaking of the act of suicide itself, not Maynard’s moral culpability. [Daily News]
Those who condemn “judgementalism” and “moralising” ought to be offended by all of these commentators, because all of them – Caplan, Currie, Peyser and de Paula – have expressed moral or ethical judgements. To condemn suicide as “reprehensible” is surely to make a moral or ethical judgement, but moral judgement is equally involved in a declaration that suicide is a “moral” or “ethical” choice that should be applauded.
Health care workers who refuse to participate in some procedures for reasons of conscience or religion are often accused of being “judgemental” or of “moralising.” In fact, as the preceding examples illustrate, their accusers are not infrequently just as “judgemental” and “moralistic.” Such differences of opinion are not between moral or religious believers and unbelievers, but between people who believe in different moral absolutes.
This was one of the points made by Father Raymond De Souza during an interview about assisted suicide on CBC Radio’s Cross Country Checkup. Interviewer Rex Murphy asked him if he thought that “the idea of any absolute . . . even on the most difficult of questions of life and death . . . are no longer sufficient . . . for the modern world.” Fr. De Souza’s response:
It’s a shift, Rex, I would say from one set of absolutes to the other. And the absolute would be the absolute goodness of life, in one case, to assertion of personal autonomy, which is becoming an absolute assertion. And in fact in some of the arguments that have gone before the court, while acknowledging potential difficulties and philosophical objections, the right to personal autonomy trumps everything else. So, in a certain sense, I wouldn’t say we are moving away from absolutes, but shifting from one set of absolutes to the other . . . [34:21- 35:24]
