Category: Law

Lawyers to UN: Forcing nurses to assist abortions violates international law

 Parallel meeting in Geneva on 12 March

News Release

Alliance Defending Freedom

ADF International will hold a parallel event at the 28th session of the United Nations Human Rights Council in Geneva Thursday to call upon European nations to respect the fundamental right to freedom of conscience within the medical profession. Two ADF International lawyers will speak at the event and will be available for media interviews.

ADF International, in coalition with Scandinavian Human Rights Lawyers, will urge the UN Human Rights Council and the international community at large to confront the lack of protections for freedom of conscience in several European countries. Although this fundamental human right is protected under international and European human rights law, a growing trend – particularly within the medical profession – is to override it. As a result, doctors, nurses, and midwives are being fired for refusing to perform or partake in abortion procedures.

“No one deserves to  be denied a job simply because they are pro-life,” said Ruben Navarro, ADF International’s director of UN Advocacy-Geneva, who will speak at the event. “International law makes it clear that being pro-abortion cannot be a requirement for employment, nor can medical facilities force nurses and midwives with a conscience objection to assist with practices that can lead to an abortion.”

At the event, Ruth Nordström, president of Scandinavian Human Rights Lawyers and lead counsel in the case Grimmark vs. Jönköping City Council, will discuss the lack of conscience protections under Swedish law.

“Sweden has failed to develop a comprehensive and clear regulation that defines and regulates conscientious objection at the workplace, in particular for health care providers,” Nordström explains. “Swedish medical workers are being reprimanded, repositioned, fired, and put at a disadvantage in other ways as well. Their freedoms under international treaties are being violated.”

“Willingness to commit an abortion cannot be a litmus test for employment,” added ADF International Senior Legal Counsel and Director of UN Advocacy Paul Coleman. “Medical clinics and hospitals need to respect the desire and conviction of a midwife or nurse to protect life – a desire that led Ellinor Grimmark and others like her to pursue the profession in the first place.”

CMDS Canada plans legal challenge to new Ontario College of Physicians policy

Note:  The following message has been sent to members of the Christian Medical Dental Society of Canada concerning the decision of the College of Physicians and Surgeons of Ontario to enact a policy that demands that physicians facilitate procedures to which they object for reasons of conscience by referring patients to a non-objecting colleague or agency.  It is reproduced here with permission.

We received the disappointing news today that the CPSO has passed their policy “Professional Obligations and Human Rights”. We ask that all members across the country join in prayer and ask our Lord to have mercy on us and to act to undo this policy that tramples on the constitutional freedoms of doctors of conscience.

We have already been in discussion with our lawyer Albertos Polizogopoulos who has been asked to prepare an application in court to have the policy struck down because it runs contrary to the Canadian Charter of Rights and Freedoms.

We are planning a press conference in Toronto to launch this court challenge in the next two weeks and we sincerely hope this stops other colleges from following suit. We know that Saskatchewan has a similar policy up for consideration, and other provinces might be considering this. We need to act quickly to try to stop other provinces from taking this step. Bryan Dias, national president of the Canadian Federation of Catholic Physician’s Societies has indicated that his organization will join in the application as well and other groups are also welcome.

We will be making a solicitation of members for this cause next week. We will be preparing to move legally in Saskatchewan as well if we are not successful with the Saskatchewan College.  We are going to try to raise $150,000 for this project. $25,000 has already been raised from the CMDS Canada Board of Directors alone. The money raised will also go towards a public awareness campaign and towards the development of a database of supporters.

Three doctors have come forward to be named in the court application in Ontario. We would encourage other Ontario doctors who feel strongly about this matter to come forward and allow their names to stand as well.  For more information, contact Larry at lworthen@cmdscanada.org

Many doctors are concerned about what to do in their practice now that the policy has been passed. We will be asking Albertos for his advice on this and will get back to you on this with a note very shortly.

One of the things we could consider is to try to get before the court quickly to ask that the policy be suspended until it gets before a judge, to hear the merits of the case.

One thing is for sure – please do not give up hope. We have a good legal strategy and alot of people pulling for us. There were over 16,000 submissions to CPSO on this issue and it has been reported that most were in favour of conscience rights generally. Most importantly, we have a God who is looking out for us and who wants us to continue His healing ministry. Let us keep each other in prayer and let us ask our respective congregations and parishes to pray for us as well.

Let’s not worry – because we know that the Lord has a plan.

Larry Worthen BA, MA (Th.), LLB
Executive Director
Christian Medical and Dental Society of Canada
Cell: (902) 880-2495

National Office:
1-197D Main Street  Steinbach MB R5G 1Y5 Phone: 204-326-2523
Fax: 204-326-3098 Toll Free:  1-888-256-8653 Website: www.cmdscanada.org

Submission to the College of Physicians and Surgeons of Ontario

Re: Professional Obligations and Human Rights

Justice Centre for Constitutional Freedoms

Summary

The draft Policy “Professional Obligations and Human Rights” (the “Draft Policy”) proposed to the College of Physicians and Surgeons of Ontario (the “College”) contains a number of critical legal errors, which render the affected portions of the Draft Policy constitutionally indefensible.

The Draft Policy incorrectly assumes that patients enjoy a legal right to access even controversial medical services from any and every physician. In fact, patients have virtually no legal rights to medical care. The Courts have expressly stated that there is no Charter right to health care, or to any particular health services. Conversely, the Charter expressly protects physicians’ religious and conscience rights. The civil government, and government bodies such as the College, cannot violate physicians’ Charter rights to freedom of conscience and religion unless such violation is demonstrably justified. In light of the context of health services in Ontario, the purposes of eliminating discrimination and promoting access to health care, while praiseworthy, do not justify the Draft Policy’s violation of physicians’ Charter rights.

The Draft Policy purports to address discrimination in the provision of health services, and repeatedly references Ontario’s Human Rights Code. However, a physician who is unable to provide or refer a patient for a particular health service on account of the physician’s sincere religious or conscientious belief is not engaging in discrimination; this inability or refusal does not violate the Code. The inability to provide or refer for that health service is not based on or related to the patient’s personal characteristics (e.g. age, gender, religion, disability, etc.). Rather, this inability to provide a particular service or referral stems from the physician’s religious or conscientious belief that the service in question causes harm.

Promoting access to health services is a commendable objective. No one could deny that in many areas health services are subject to undesirable even unacceptable delays. And despite the Supreme Court’s ruling in Chaoulli c. Quebec, 1 the effective prohibition of private health insurance impedes many Canadians in accessing timely health services. However, there is no basis on which to conclude that physicians, by exercising their freedom of conscience, actually impede access to health care. Some patients may occasionally experience minor inconvenience when informed by a physician that reasons of conscience prevent the physician from providing or referring with respect to a desired service. However, with an abundance of physicians and facilities available to perform such controversial services,2 patients will still receive these services in timely manner. The Draft Policy neither provides nor points to any evidence showing that controversial services such as abortion suffer greater delays in access to care than noncontroversial services, such as knee surgery.

The clinical aspect of the practice of medicine cannot be separated from the moral, religious and ethical beliefs of physicians that form an essential part of providing health services to other human beings. The Draft Policy’s attempt to separate the “clinical” from the “moral” in the practice of medicine is a dangerous and destructive step that contradicts the ethical foundations of medicine that have existed for millennia.

Government bodies such as the College have an obligation under the Charter and Ontario’s Human Rights Code to accommodate the religious and conscientious beliefs of physicians to the point of undue hardship. The Draft Policy ignores this obligation entirely, while incorrectly asserting a need to “balance” Charter rights with the wishes and desires of patients. These wishes and desires are not legal rights.

The Draft Policy’s requirement that physicians provide referrals for, and in some cases perform, services which they sincerely believe are morally wrong is grossly deficient from a Charter perspective, and if adopted would be found unconstitutional by a court. A referral is not a morally neutral action, as the College itself recognizes. Further, the drastic measure of forcing physicians to violate their consciences by performing services they believe are wrong is vague and subjective, making it impossible to qualify as a reasonable limit on physicians’ conscience rights. The College cannot point to evidence of a pressing need that would justify these requirements.

The College should seek to support physicians’ adherence to their own individual consciences.  Alternative measures which reasonably accommodate physicians with religious or conscientious objections should be developed and implemented. [Full text]

 

An attack on the conscience rights of physicians

National Post
Reproduced with permission

John Carpay

Ontario’s College of Physicians and Surgeons is determined to force every family doctor to participate in abortion and euthanasia, either by providing these services, or by referring patients to other doctors who will.

The College dismisses Charter-protected conscience rights as “personal values and beliefs” that are not nearly as important as “clinical” beliefs. This distinction is wholly artificial, as shown by the very existence of modern medical ethics. There is nothing clinical or scientific about the moral prescriptions in the Hippocratic Oath: To “take care that patients suffer no hurt or damage” and to “use knowledge in a godly manner.” This “sacred oath” cuts across religious, philosophical, and political boundaries, and has been the bedrock of the physician’s pledge to his patients and society for over two millennia.

Medical ethics, both ancient and modern, are based entirely on religious and moral beliefs. A doctor guided by science to the exclusion of morality is inherently untrustworthy. A good doctor acts on both moral and scientific beliefs.

The college’s draft policy on doctors’ professional obligations assumes that patients have a “right” to receive whatever medical services they may desire from any doctor. The college provides no basis for this assumption, because, in fact, patients do not enjoy a legal right to obtain whatever medical services or treatments they want.

The college’s justification for coercing pro-life doctors into referring patients for abortion or euthanasia services relies heavily on Ontario’s Human Rights Code. But the code says nothing about which medical procedures should be available to patients, or whether all doctors must be willing to provide them. The code merely requires doctors to serve all patients equally, regardless of the patient’s age, race, gender, religion, etc. The code would, for example, prohibit a pro-choice doctor from providing abortions only to patients of some ethnic groups, but not others.

The college then jumps to the argument that a doctor’s Charter-protected freedom of conscience and religion needs to be “balanced” against a patient’s “right” to receive desired services from every doctor. But there is no need to balance a Charter right against another right that doesn’t exist.

The college claims that refusing to participate in abortion and euthanasia amounts to “impeding” access. This argument is quite a stretch. If a doctor refuses to prescribe an abortion-inducing drug to a patient, that doctor is certainly causing the patient inconvenience. But in no way is that doctor “impeding” the patient from obtaining the drug from other doctors, the vast majority of whom routinely prescribe such drugs.

While claiming to be concerned about patients’ access to health care, the college ignores the Supreme Court’s ruling in Chaoulli v. Quebec, which declared that “access to a waiting list is not access to health care.” The court in Chaoulli was unanimous in holding that a government monopoly over health care, when it condemns patients to suffer and die on waiting lists, violates the constitutional rights of Canadians.

When it comes to essential health services like cancer diagnosis, cancer treatment and orthopaedic surgery, politicians in Ontario and other provinces have passed laws that make it effectively illegal for patients to use their own after-tax dollars to buy private medical services and private health insurance. The college is not troubled by the fact that patients are entirely at the mercy of the bureaucrats and politicians who run the Ontario government’s health-care monopoly, and who alone decide what medical services patients will and will not have access to.

In short, the college’s attack on physicians’ conscience rights has nothing to do with patients’ access to health care. In light of the willingness of most doctors to provide or refer for abortion and euthanasia, the minority of pro-life doctors are making a statement, not impeding access. But rather than advocate for expanded access to all kinds of health care for all patients, the college acts ideologically to remove all visible opposition to its own popularly accepted moral beliefs. This ideological attack strikes at the root of Canada’s free society, which should welcome the full participation of all persons, even those with unpopular convictions.

 

American Civil Liberties Union: referral for abortion not good enough

Sean Murphy*

The American Civil Liberties Union (ACLU) is suing a Washington state public hospital district, claiming that it is failing to provide medical and surgical abortions.  In fact, the hospital district provides both, but refers patients to other facilities for abortion when they cannot be provided in one of the district hospitals because of conscientious objection to the procedure by staff.  It thus appears that the ACLU is not content with forcing facilities to refer for abortion, but intends to force them to provide the procedure despite conscientious objection by physicians and health care workers.  [Reuters]