The protection of conscience provision in a preliminary draft Irish abortion law has been criticized by Dr. Donal O’Mathuna, a lecturer in ethics at Dublin City University. Dr. O’Mathuna objected to the claim that freedom of conscience is enjoyed by individuals, but not by institutions, and to the provision demanding mandatory referral by objecting physicians. Dr. John Murray, a lecturer in moral theology at Mater Dei Institute and chairman of the board of The Iona Institute, insisted that Irish politicians must vote according to their conscientious convictions, even if that means defying the party whips. [Iona Institute]
Tag: referral
Proposed Irish abortion law demands referral by objectors, denies freedom of conscience to denominational institutions
Protection of Life During Pregnancy Bill 2013
The general scheme for a new Irish abortion law will permit abortions when there is a “real and substantial risk” to the life of a woman by reason of physical illness, suicidal ideation, or emergency medical conditions. The scheme is called a “heads of bill”, with each “head” corresponding to what is likely to become a section of the final
bill. However, the wording and content of each head are not settled.
Protection of Conscience Provision
The General Scheme for the Protection of Life During Pregnancy Bill 2013 includes a protection of conscience provision that is limited to medical practitioners, midwives and nurses. The commentary states that the provision is derived from a bill passed by the Irish Parliament in 2001 (which ultimately did not become law), but it is narrower provision than the original, which extended protection to all persons.
All hospitals and institutions operated by the state or by persons contracted by the state will be required to provide abortions if they provide maternity or neonatal care. No exemptions are permitted for facilities operated by religious denominations or persons who object to abortion for reasons of conscience.
Section 2 of the protection of conscience provision may deny freedom of conscience to psychiatrists and other medical practitioners who do not wish to participate in panels convened to approve abortions for women who are threatening to commit suicide. One third of Irish psychiatrists have already signed a letter to the government asserting that abortion is not a treatment for suicidal ideation.
Finally, the bill demands that medical practitioners who do not want to participate in the procedure must find someone willing to do so. Many conscientious objectors are unwilling to refer patients for morally contested procedures because they believe that by doing so they become morally complicit in wrongdoing.
It is not clear how much difficulty the mandatory referral requirement will cause, since the bill envisions abortion only in circumstances involving a substantial risk to the mother’s life. This is very rare, and in such circumstances there is much less likelihood of conscientious objection, so it may not prove to be troublesome in operation. On the other hand, government comments accompanying the bill note that medical practitioners do not need to be of the opinion that the risk to the woman’s life “is inevitable or immediate.” The more broadly this interpretation is construed, the more likely it is that conflicts of conscience will occur.
While the proposed bill is the product of the controversy generated by the death of Savita Halippanavar in Galway in October of last year, it does not appear to propose anything that would have made a difference to the outcome of that case. Her death was caused by a particularly virulent infection that is not normally found in maternity settings. An emergency induction of the kind contemplated by Head 3 in the proposed bill was legal at that time and had been decided upon when she spontaneously delivered a stillborn daughter. (See A “medical misadventure” in Ireland: Deaths of Savita and Prasa Halappanavar)
Neil Mitchell with Dr Mark Hobart over his refusal to refer a couple for an abortion
Nebraska psychologist opposes freedom of conscience
Dr. William Spaulding, a former president of the Nebraska Psychological Association, has criticized the proposed Health Care Freedom of Conscience Act because it does not force health care workers to refer for services or procedures to which they object for reasons of conscience. The bill requires an objector to disclose that moral or religious beliefs prevent him from providing treatment so that the patient can seek assistance elsewhere, but does not force them to assist patients to find someone willing to provide the contested service.
Spaulding claims that an objector may refuse to treat a distraught patient who is involved in homosexual activity or who has homosexual inclinations by saying, “I have a religious belief against you and you have a moral problem.”
He refuses a compromise by which patients are provided a general list of alternative practitioners without specific referral to someone willing to affirm and support homosexuality, asserting, “Compromising on prejudice is not a compromise.” [Star Herald]
Physicians’ Alliance for Total Refusal of Euthanasia
Although euthansia and assisted suicide are criminal offences in Canada, and criminal law is under the jurisdiction of the federal government, the government of Quebec has announced that it will legalize assisted suicide and euthanasia provided by health care workers. [National Post] The commission that recommended this step also recommended that objecting physicians be forced to facilitate the procedures by referral.
It appears that the provincial government will claim that assisted suicide and euthanasia are forms of medical treatment. Since health care is under provincial and not federal jurisdiction, the province will likely argue that the prohibition of these services within the context of health care trespasses on provincial jurisdiction. This was one of the claims of the BC Civil Liberties Association in Carter v. Canada, which it won.
The third legal argument advanced by the BC Civil Liberties Association in Carter was that “treatment and management of the physical and emotional suffering of a grievously and irremediably ill patient” are matters that fall within the “exclusive jurisdiction” of the provinicial government, which is constitutionally mandated to manage health care. Since (according to the plaintiff physician) physician-assisted suicide and voluntary euthanasia are “important component[s] of the provision of health care to grievously and irremediably ill patients,”the lawsuit asked that sections of the Criminal Code (a federal statute) that prevent the provision of this “health care” should be struck down as an unconstitutional interference in provincial jurisdiction, “to the extent that [they] prohibit physician-assisted dying.” See Legalizing therapeutic homicide and assisted suicide:A tour of Carter v. Canada
However, the claim was not adjudicated in Carter because it was not actually argued during the trial.
The province also has the constitutional authority to enforce and administer criminal law, so that it could, in theory, instruct prosecutors not to pursue charges against health care workers who provide the procedures in accordance with government guidelines. It could do this pending the outcome of litigation, and even if the criminal prohibition stands. This is the approach taken in England with respect to assisted suicide, though the English guidelines indicate that health care workers must not be involved.
Should the provincial government refuse to prosecute health care workers who provide the services, it would be possible for the federal government to order the federal police force, the Royal Canadian Mounted Police, to investigate allegations, and to appoint and pay lawyers to act as prosecutors. However, this would be especially contentious in Quebec, since the current government is ideologically committed to the separation of Quebec from Canada and the establishment of the province as an independent nation state. Nationalist elements in Quebec would see that kind of federal intervention as not only a constitutional violation of provincial jurisdiction, but as violation of sovereignty.
Thus, divisions among health care workers on this issue may involve complexities and nuances not encountered elsewhere, and those who resolutely refuse to provide or facilitate assisted suicide and euthanasia may find their circumstances unusually challenging. Nonetheless, prominent Quebec physicians have formed The Physicians’ Alliance for Total Refusal of Euthanasia. The Alliance is directly challenging the medical regulatory authority:
The Quebec College of Physicians does not have the legal or the moral authority to change one of the basic pillars of medicine, or to amend the code of medical ethics, without first conducting an extensive study and consultation with members of the profession. The mere passing of a resolution by the board of directors does not make physician-inflicted death an acceptable form of care.