Category: Legal Commentary

Conscientious objection to abortion: Catholic midwives lose in Supreme Court

UK Human Rights Blog

The Supreme Court recently handed down its judgment in an interesting and potentially controversial case concerning the interpretation of the conscientious objection clause in the Abortion Act 1967. Overturning the Inner House of the Court of Session’s ruling, the Court held that two Catholic midwives could be required by their employer to delegate to, supervise and support other staff who were involved in carrying out abortion procedures, as part of their roles as Labour Ward Co-ordinators at the Southern General Hospital in Glasgow.

We set out the background to the case and explained the earlier rulings and their ramifications on this blog here and here. The key question the Supreme Court had to grapple with the meaning of the words “to participate in any treatment authorised by this Act to which he has a conscientious objection” in section 4 of the 1967 Act.

The disappearing Article 9 argument

Somewhat frustratingly (at least from the perspective of the writers of a human rights blog!) an argument based around Article 9 of the European Convention – the right to freedom of thought, conscience and religion – was not really dealt with by the Supreme Court, despite having been trailed in the earlier court proceedings. Lady Hale JSC, who wrote the judgment with which the other Supreme Court Justices agreed, described the point as a “distraction” . . . [Full text]

 

Ontario College of Physicians’ new policy violates basic tenets of law

Larry J. Worthen, Albertos Polizogopoulos

The College of Physicians and Surgeons of Ontario (CPSO) recently released a draft policy on professional obligations and human rights that has deeply disturbed health service providers and patients.  The draft policy forces physicians to do certain procedures or prescribe certain pharmaceuticals against their own moral or religious convictions in some cases, or to make a formal referral to another doctor in others. In doing so the CPSO has drafted a policy that violates Canadian law. This matter has taken on an even more serious tone given the possibility that assisted suicide and euthanasia may be legalized at some point in the future.

There is no human right in Canada to demand and receive particular services from a specific physician. The Ontario Human Rights Code prohibits discrimination against the public on a number of grounds that include among others, race, ethnicity, sex, sexual orientation, age or disability. This means that one must not deprive one group of services one provides to others. However, the Code does not dictate what services must be delivered. So, if a restaurant chooses not to serve pork because of the owner’s religious beliefs, there is no violation of the Code. If the restaurant choses to exclude people of a particular ethnic group however, that would amount to discrimination and a violation of the Code. In the same way, a physician who is unable to participate in a procedure or prescribe a pharmaceutical for moral or religious reasons is not discriminating against his or her patient provided all patients are treated the same.  Unfortunately, the draft policy suggests that a physician’s objection to a specific procedure or pharmaceutical may result in the violation of a patient’s rights under the Charter or the Code. This reference makes clear that those who prepared this policy misunderstand the application and function of Ontario and Canadian law.

Physicians do have the right to be protected from state coercion to act against their moral or religious convictions, guaranteed by the Charter of Rights and Freedoms. Provided the services are delivered in a respectful way there are no competing rights. In such a case, the only human rights present are the physician’s human rights to freedom of religion and freedom of conscience. Furthermore, when the physician is an employee they have the additional right to be accommodated by their employer.

Referrals are as morally problematic as doing the procedure itself. This concept is supported in Canadian law. For instance, if an accused person refers an acquaintance to a drug dealer, the accused person is guilty of the crime of trafficking in narcotics. If a physician has the moral or religious conviction that abortion or euthanasia is the taking of an innocent human life, then the physician who formally refers a patient to the abortionist or euthanist has contributed to the taking of that life.

Physicians who rely on these protections want to serve all patients in an open and inclusive manner, providing all relevant information in a fair and unbiased way, striving to be non judgemental and supportive in their approach. In a multicultural society, doctors relate with patients with widely divergent worldviews every day. The physician’s primary concern is for their patient’s health. Even when the physician is not able to participate in the implementation of the patient’s ultimate decision, the professional relationship between them can be maintained and may even be enhanced. Physicians in these circumstances are up front with their patients about what services they will or will not provide from the beginning of the relationship. Physicians simply request that their rights be respected just as they respect the rights and feelings of their patients.

Unfortunately, the purpose of this draft policy appears to be clear. It was not designed to ensure that physicians understand and comply with their legal obligations under the Code, but rather, it appears to have been designed with the goal of either compelling physicians who object to specific procedures and pharmaceuticals to act against their moral and religious convictions or, alternatively, to drive those who object to these procedures and pharmaceuticals out of the medical profession.

If the CPSO passes this policy, it will do great damage to many well-qualified physicians who are currently making significant contributions to health care in Canada. The CPSO will be alienating these physicians from their heart and soul that is their primary motivator for excellent patient care. And the CPSO will be depriving many members of the public of the type of doctor they would prefer to be treated by. This is discrimination.  It is the systematic disqualification of perfectly acceptable practitioners because of their religious beliefs.

This policy cannot withstand Charter scrutiny as it results in a clear violation of physician’s conscience and religious rights. The CPSO perhaps assumes that physicians will not defend their Charter rights to freedom of religion and conscience. They are wrong.

Larry Worthen is a lawyer and the Executive Director of the Christian Medical and Dental Society of Canada, an association that represents 1600 physicians across Canada. The CMDS presented submissions to the CPSO in relation to the draft policy.

Albertos Polizogopoulos is a Partner with the firm Vincent Dagenais Gibson LLP/s.r.l. in Ottawa, Ontario. He regularly appears before courts and appellate courts including the Supreme Court of Canada to advocate for his clients’ rights to freedom of religion, freedom of conscience and other civil liberties. He also frequently appears in media interviews and on panels to discuss constitutional law. Albertos was counsel to the CMDS in making submissions to the CPSO on the draft policy. @CharterLaw

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.

Joint intervention in Carter v. Canada
Joseph Arvay, Q.C. (Counsel for the Appellants)

Joint intervention in Carter v. Canada
Jean-Yves Bernard (Counsel for the Attorney General of Quebec)

Joint intervention in Carter v. Canada
Harry Underwood (Counsel for the Canadian Medical Association)

Joint intervention in Carter v. Canada
Robert W. Staley (Counsel for the Catholic Civil Rights League, Faith and Freedom Alliance, and Protection of Conscience Project)

Submission to the College of Physicians and Surgeons of Ontario

Christian Legal Fellowship

RE: Physicians and the Ontario Human Rights Code Consultations

The College of Physicians and Surgeons of Ontario (“CPSO”) has invited feedback from al 1 stakeholders in regard to its review of Policy Statement #5-08. Physicians and the Ontario Human Rights Code (”the Policy”). In particular, the CPSO has asked if the Policy provides useful guidance, whether the Policy fails to address any issues, and any other ways in which the Policy should be improved. The Christian Legal Fellowship (“CLF”) appreciates the opportunity to participate in this discussion, as we did in the prior CPSO consultation on Human Rights in September of 2008, and makes the following introduction and submissions.

The CLF is a national charitable association that exists to strengthen the spiritual life of its members, and encourage among Christians in the vocation of law the integration of faith with contemporary legal, moral, social and political issues. The CLF’s membership consists of approximately 550 lawyers, law students, professors, and others who support its work; with approximately one third of its members in the Province of Ontario. It has 14 chapters in cities across Canada and student chapters in most Canadian law schools. While having no direct denominational affiliation, CLF’s members represent more than 30 Christian denominations working in association together. As an association of Christian professionals, we welcome the opportunity to address the issues which the CPSO have raised in this consultation process.

The CLF has intervened in numerous legal cases relating to matters of conscience and religious freedom at the appellate and Supreme Court level. The organization also engages in policy consultations raising issues that impact, among other things, religious freedom and human rights. CLF is therefore knowledgeable and well-positioned to comment on this CPSO policy.

In reviewing the Policy, there are three broad areas of concern for CLF. First, we submit that the Policy fails to recognize that physicians have the right to freedom of religion and conscience. Second, the Policy fails to recognize that the law protects physicians with religious beliefs from engaging in activities that violate their religious beliefs, their moral beliefs and their conscience. Third, the Policy obligates physicians, in “some circumstances” to actively refer a patient for services which violate the beliefs or conscience of the physician.

(l)        Physicians have the right to freedom or religion and conscience.

In its current format, the Policy mentions “personal beliefs and values and cultural and religious practices are central to the lives of physicians and their patients”. This description fails to acknowledge the legal status of beliefs and religion. In fact, conscience and religion, thought, belief, opinion and expression are protected as fundamental freedoms by the Charter of Rights and Freedoms.1  Further, the Human Rights Code2 upon which the Policy is based, protects from discrimination on the basis of creed.3

The Policy also precludes physicians from sharing their religious beliefs with patients: “physicians should not promote their own religious beliefs when interacting with patients, nor should they seek to convert existing patients or individuals who wish to become patients to their own religion”. While this conduct may not be appropriate in all circumstances, a blanket prohibition is problematic and a clear violation of freedom of religion and expression.

Religion as a protected freedom is more than the right to privately think or believe certain ideas and principles. It is broadly defined and demands robust protection. Freedom of religion encompasses the right to entertain religious beliefs of one’s own choosing, the right to declare religious belief openly and without fear of hindrance or reprisal, the right to manifest those beliefs by worship and practice, by teaching and dissemination.4It precludes forcing an individual to act [lacuna] conscience. Under the law, physicians must be afforded the ability to align their practices with their conscience in these controversial areas and others, and that right must be made clear in the CPSO Policy.

CLF therefore urges the CPSO to modify its Policy to reflect the principles outlined above, ensuring it accurately reflects physicians’ rights pursuant to the Charter and the Human Rights Code.

Please note the endorsements that follow. CLF would be pleased to provide further assistance in any way the CPSO believes would be appropriate. Thank you for your consideration of our submissions.

Christian Legal Fellowship

Notes
1. The Constitution Act1982, Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

2. Ontario Human Rights Code,R.S.O. 1990, e. H .19.

3. Ontario Human Rights Commission: Policy 011 Creed and the Accommodation of Religious Observances, October 20, 1996. While creed is not a defined term in the Code, the OHRC has adopted the following definition of creed in its Policy: “Creed is interpreted to mean “religious creed” or “religion.” Tt is defined as a professed system and confession of faith, including both beliefs and observances or worship. A belief in a God or gods, or a single supreme being or deity is not a requisite … The existence of religious beliefs and practices are both necessary and sufficient to the meaning of creed, if the beliefs and practices are sincerely held and/or observed. “Creed” is defined subjectively. The Code protects personal religious beliefs, practices or observances, even if they are not essential elements of tne creed provided they are sincerely held.” Policy page 4-5. ” In the case of discrimination in the workplace, both management and the union have a duty to accommodate. In Central Okanagan School District No. 23 v. Renaud the Court noted that although the principle of equal liability applies, the employer has charge of the workplace and will be in a better position to formulate measures of accommodation. The employer, therefore, can be expected to initiate the process of taking measures to accommodate an employee. Nevenhelcss, the Court also noted that they will not absolve a union of its duty if it fails to put forward alternative measures that are available. In short, when a union is a co-discriminator with an employer it shares the obligation to remove or alleviate the source of the discriminatory effect.” Policy page 9. “Conclusion: Religious pluralism poses a challenge in any multicultural society, especially one as diverse as ours. Although the law is developing rapidly in this area, an informed spirit of tolerance and compromise is indispensable to any civil society, as well as to its capacity to make opportunities available to everyone, on equal terms, regardless of creed [or other protected right].” Policy page 16. “R v. Rig M Drug Mart l 1985] I SCR 295 at336-337

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]