With Ontario court’s ruling on doctors, the revolution continues

There is a growing antipathy among Canadian elites against conscientious individuals who refuse to accept their views

National Post

Barry W. Bussey*

How is it that such a simple decision could be made so complicated? Given the history of accommodating individual conscience in the medical profession and in Canadian law, the case before the Ontario Court of Appeal to accommodate doctors’ consciences was a “no-brainer.” The law, history, and basic human decency cried out: “Accommodate the physician!” Instead, the highest court in Ontario followed the worrying legal revolution against accommodation and stomped on conscience. And it did so wrapped up in language that purported to support vulnerable patients.

The decision against physicians who, because of conscience, cannot assist in the intentional killing of a human being, pre- or post-birth, is a travesty of justice. It is wrong. It is wrong morally, ethically and legally. . . [Full Text]

Ontario Court of Appeal supports ‘effective referral’ for morally contested procedures, including euthanasia


Court unanimously affirms right of state to compel participation in homicide, suicide, etc.

News Release

Protection of Conscience Project

On 15 May, 2019, three judges of the Ontario Court of Appeal unanimously upheld a lower court ruling that physicians can be forced to facilitate procedures they find morally objectionable, including euthanasia and assisted suicide, by connecting patients with willing providers (“effective referral”).

The Court of Appeal judgement concerned a 2018 decision by the Ontario Divisional Court that had been appealed by the Christian Medical and Dental Society of Canada and others. The litigation was a response to a compulsory “effective referral” policy imposed by Ontario’s state medical regulator, the College of Physicians and Surgeons of Ontario.

The Protection of Conscience Project, Catholic Civil Rights League and Faith and Freedom Alliance jointly intervened at trial and in the appeal in support of freedom of conscience.

The Divisional Court and the Court of Appeal both acknowledged the joint intervention, but neither considered the arguments it proposed because the case was decided solely on the basis of freedom of religion claims. The Court of Appeal held that the evidence at trial was “insufficient to support an analysis of freedom of conscience.”

“To the extent the individual appellants raise issues of conscience,” said the Court, “they are inextricably grounded in their religious beliefs,” so that, “at its core, the appellants’ claim is grounded in freedom of religion.”[para. 85]

Since the arguments in the Project’s intervention were not addressed at trial or in the appeal, Project Administrator Sean Murphy believes that they are unaffected by the decision.

“The focus of the Court was on religiously-motivated refusal to participate in perceived wrongdoing,” said Murphy. “The analytical framework proposed in the joint intervention could easily have been adapted and applied to that particular form of the exercise of religious freedom. The evidentiary record would have been sufficient for that purpose.”

“However, the Court did not do this, so the arguments still stand, and they can be raised again in another appropriate case.”

The decision demonstrates that the judges uncritically adopted the view of the College that euthanasia, assisted suicide, abortion, contraception, sterilization, sex change surgery, etc. are acceptable forms of medical treatment or health care. They further noted that abortion, euthanasia and assisted suicide “carry the stigmatizing legacy of several centuries of criminalization grounded in religious and secular morality.” [para. 123]. On the other hand, they gave no weight to contrary views held by the plaintiffs.

The Court of Appeal also supported the College’s assertion that objecting physicians unwilling to comply with the demand for effective referral could change their scope of practice and move into fields like “sleep medicine, hair restoration, sport and exercise medicine, hernia repair, skin disorders . . . obesity medicine, aviation examinations, travel medicine . . . administrative medicine or surgical assistance.”[para. 71]

The appellants have 60 days to consider and appeal to the Supreme Court of Canada.

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Contact: Sean Murphy, Administrator
Protection of Conscience Project
Email: protection@consciencelaws.org

Statement on the Denial of Conscientious Objection from the “Effective Referral” Mandate

News Release

Catholic Civil Rights League

Toronto, ON May 15, 2019 – The Catholic Civil Rights League (CCRL) is disappointed with the decision released today of the Ontario Court of Appeal, in CMDS et al v. CPSO.

In its ruling, the unanimous three member panel of the Court of Appeal, comprised of Chief Justice George Strathy, and Appellate Justices Sarah Pepall and J. Michal Fairburn upheld a previous decision from Ontario’s Divisional Court, from January 31, 2018. That ruling denied conscientious exemption from the “effective referral” mandate of the College of Physicians and Surgeons of Ontario (CPSO) for doctors who morally objected to participating in objectionable procedures such as assisted suicide, gender re-assignment surgeries, or abortion.

By way of background, individual Catholic and Christian doctors and several organizations had challenged the CPSO, which over the course of the past four years changed its professional guidelines on professional conduct, forcing Ontario doctors who objected to morally objectionable procedures to provide an “effective referral” to a willing doctor for such services. Previously, doctors were relieved from any such obligation.

Ontario is the only provincial or territorial jurisdiction which has made demands to this extent with its doctors. Other jurisdictions have elected to recognize such conscientious objections, or have provided a means to allow other transfers of a patient’s file, without infringing such rights.

In 2018, the Ontario Divisional Court had ruled in favour of the CPSO, despite finding that the religious freedom of doctors had been infringed. The Applicants appealed.

At the appeal, the CCRL, the Faith and Freedom Alliance (FFA) and the Protection of Conscience Project (PCP), had argued in a joint submission as an intervener that such “effective referrals” made objecting doctors complicit in the provision of the objectionable procedures, such as abortion, or assisted suicide. We argued that the referral requirement imposed the values of the state upon individuals, forcing them to violate their own consciences, without adequate justification.

Our intervention wished to expand the arguments into the area of conscience protection, in addition to religious freedoms asserted by the appellants under s. 2a of the Charter, but those submissions were not pursued by the Court of Appeal.

The Court of Appeal accepted that there was an infringement on the s. 2a rights of the appellants, but that the infringement was justified as a reasonable limit on those rights (para. 187).

The Court of Appeal decision clarified that “non-compliance with the [CPSO] Policies is not an act of misconduct” under the College’s professional misconduct regulations (para. 16), but could be used as evidence of falling below a professional standard if a misconduct allegation were brought (para. 17).

The Court accepted that referrals could be made in a variety of ways, or even by a staff member as a triage engagement (paras. 24-27).

The decision also referred to the availability of other practice arrangements endorsed by the CPSO, to allow doctors to “avoid” the demand for an effective referral, such as working in a hospital setting, or a group practice, if others were prepared to engage in the objectionable treatment, or make the requested referral (paras. 176-187).

The acceptance of such arrangements in the Court’s decision presented a dichotomy. In recognizing the infringement of s. 2a rights, several proposed workarounds were accepted, such as working in a hospital context, or in a group practice where others would be willing to make the referral, or having employees make the referral. Other jurisdictions have avoided the original effective referral demand, or have allowed for conscientious objections outright, which a majority of Ontario doctors supported.

The Court was not persuaded that a demand to change practice or specialty areas constituted a sufficient intrusion into a doctor’s existing practice. That may be a challenge for the typical cancer specialist, or cardiologist, who may be confronted more often with a demand for medical assistance in dying, especially in the absence of available palliative care options. While not underestimating the individual sacrifices that may be required (paras. 186, 187), the court’s answer suggested that it was perhaps time to change one’s specialty, or submit.

The CCRL continues to support Christian or other doctors who have raised serious concerns over the “effective referral” mandate of the CPSO, and look forward to continuing discussions on how best to serve their interests.

Click here to view the written factum of the CCRL, FFA, and PCP, submitted in November 2018, which made reference to important principles of law and philosophy, quoting Martin Luther King Jr., Jacques Maritain, and others.

We submitted that moral rights are central to one’s sense of human dignity, and that it was unacceptable to marginalize objecting physicians as religious extremists. The Ontario Medical Association (OMA) likewise opposed the “effective referral” regime, as representatives of Ontario doctors.

Ontario doctors should be persuaded that it may be time to re-visit these demands with a future Council of the CPSO, for which hopefully conscientious physicians will seek to pursue.

Sometimes change is needed to be undertaken by the governed to secure justice.

Physician Participation in Lethal Injection

Deborah W. Denno

On April 1, 2019, the U.S. Supreme Court rejected a Missouri death-row inmate’s claim that executing him using the state’s lethal-injection protocol would violate the Eighth Amendment’s ban on “cruel and unusual punishment” because blood-filled tumors in his head, neck, and throat could rupture and cause him to choke and suffer “excruciating” and “prolonged pain.”. . . the opinion’s unusual facts and circumstances throw into sharp relief the pervasiveness of physician participation in lethal injection despite the medical community’s professed condemnation of such involvement. . .


Denno DW. Physician Participation in Lethal Injection. N Engl J Med 2019; 380:1790-1791 DOI: 10.1056/NEJMp1814786

Christian Medical Association Doctors Laud HHS Conscience Rule as Protecting Patients and Doctors

News Release

Christian Medical Association

WASHINGTON, May 2, 2019 /Standard Newswire/ — The 19,000-member Christian Medical Association, the largest national association of faith-based doctors, lauded a conscience law-enforcing rule finalized today by the U.S. Department of Health and Human Services (HHS) as a protection for both patients and doctors.

CMA CEO Dr. David Stevens said, “Our patients need to know that we as doctors can be trusted to conscientiously adhere to objective ethical standards and moral commitments that serve to protect them. They need to know we are not going to lay aside longstanding ethical norms and medical concerns just because ideologically-driven politicians or bureaucrats or hospital administrators might pressure us to do so by threatening our ability to practice medicine.”

CMA Senior Vice President Dr. Gene Rudd, an OB/Gyn physician, said, “In recent years, some abortion advocates have proposed effectively banning pro-life physicians from medicine, essentially because we adhere to the Hippocratic Oath. That long-standing objective standard protects our unborn patients while also protecting our born patients from other abuses of medical power such as involuntary euthanasia and sexual abuse. Without pro-life OB/Gyn physicians, who will serve the millions of women and men who also hold to pro-life commitments?

“Conscience protection is one of the treasures of our society. It is enshrined in the First Amendment of the Constitution, reflecting its importance. Some would want to take this right away from others when they disagree on certain issues. But protection for each person is critical to protection for all. The HHS conscience rules are critical to preserving this freedom.”

CMA Executive Vice President Dr. Mike Chupp observed, “We are committed to serving every kind of patient with compassion and competence, but that’s very different from saying we will do any procedure or fill any prescription regardless of ethical or medical concerns. Healthcare professionals of faith and conscience are committed to the mantra ‘Anyone, Anytime, Anywhere but NOT Anything!’ Without conscience freedom in healthcare, whatever ideology the government chooses will be the grounds used to exclude all objectors. The result would be a loss of healthcare access for patients, and especially the patients of faith-based health professionals who often minister to the underserved and marginalized.”

CMA Vice President for Government Relations Jonathan Imbody noted, “This HHS rule enforces and educates regarding existing conscience laws passed by Congress on a bipartisan basis, back when Congress was more bipartisan. The rule reminds the government and the health community that we all live in a country that values freedom of conscience and tolerance of diverse views. Conscience freedoms protect liberals, conservatives and everyone in between, on issues ranging from capital punishment to abortion to research ethics. Without tolerance for diversity and conscience convictions in healthcare, patients lose access to doctors, and health professionals lose their careers.”

More information available at www.Freedom2Care.org:

  • Stories of conscience violations
  • Previous polling by Kellyanne Conway on conscience (e.g, 92 percent of faith-based physicians said they would leave medicine rather than compromise conscience)
  • CMA comments submitted to HHS on conscience rule

SOURCE Christian Medical Association

CONTACT: Margie Shealy, 423-341-4254

Related Links  www.Freedom2Care.org