Jewish physicians’ freedom of conscience and religion and the Carter Case

Wagner-Sidlofsky LLP
Reproduced with permission

Charles Wagner* and Adam Hummel*

How does the decision in the Supreme Court of Canada (SCC) in Carter v. Canada (Attorney General)1 (“Carter”) impact on the religious Jewish doctor? Will this landmark decision bring into conflict these doctors’ freedom of conscience and religion with their professional obligations? The Carter case sets aside federal criminal laws as they relate to physician assisted suicide. It stands for the proposition that individuals who are suffering unbearably have a constitutional right to a physician-assisted suicide. Canada now joins only eight other countries in the world that have decriminalized physician-assisted suicide in recent years. This is a fundamental change in the law.

Previously, in the 1993 decision of Rodriguez v. British Columbia (Attorney-General)2, the SCC confirmed the criminal sanctions as they related to physician-assisted suicide, while justifying their ruling by citing the protection of the sanctity of life. Given the importance of Carter, the authors will consider some of the main concepts discussed in the decision, and consider how the SCC’s position has changed over the last 22 years. . . [Full text]


Podcast: Amir Attaran and the elves: A law professor makes much ado

A response to   “Doctors can’t refuse to help a patient die – no matter what they say”, a column by University of Ottawa law professor Amir Attaran.  He refers to  the alleged “corrosive hostility” of the Canadian Medical Association to “physician-assisted dying” and its “cowardly and stupid” position on the procedure, including support for physician freedom of conscience. [Full text – Amir Attaran and the elves]

Podcast Contents

Introduction (00 – 01:40)

Attaran: CMA siding with “bigots”  (02:11 –  4:50  )

Attaran: “they cannot refuse”  (05:23 – 06:33)

What Professor Attaran left out  (06:34 – 08:15 )

Professor  Attaran then and now  (08:50 – 09:56)

Law on abortion vs. law on homicide  (09:57 – 11:32)

A difference in perspective  (11:33  – 13:12)

What else Professor Attaran left out  (13:13 – 18:38)

Getting the facts backwards  (19:11 – 20:50 )

Amir Attaran and the elves


A law professor makes much ado

Sean Murphy*

In a column in the on-line magazine iPolitics,1 University of Ottawa law professor Amir Attaran asserts that the “corrosive hostility” of the Canadian Medical Association to “physician-assisted dying” is evident in its “cowardly and stupid” position on the procedure. He claims that the Association “all but threatened” the Supreme Court of Canada that “doctors would rise up” to block it.

In his telling, ever since the Court ignored the threat and struck down the law, the CMA has been acting like a “sore loser,” trying to persuade physicians not to participate. As evidence, he quotes a CMA policy recommendation: “Physicians are not obligated to fulfil requests for assisted dying.” And he complains that the CMA won’t force physicians unwilling to kill patients or help them commit suicide to find someone who will.

Now, the CMA also states that all eligible people should have access to the services without undue delay, and physicians will work with others to ensure access to them,2 but Professor Attaran ignores this. His analysis of CMA policy is simple and scathing. Some physicians, he says, are “bigots,” and the CMA is siding with “those bigots” rather than with patients.

Professor Attaran identifies the bigots: physicians who believe that killing patients or helping them commit suicide is gravely wrong, or at least a bad idea, even in the circumstances defined by the Supreme Court. Those whom Professor Attaran denounces as bigots include physicians who believe they are ethically obliged to compassionately accompany and support dying patients, but not to kill them.

On the contrary, says Professor Attaran, they are “duty-bound” to kill patients or help them commit suicide precisely because the Supreme Court “pointedly” approved “physician-assisted suicide.”*  If physicians won’t help patients commit suicide, he rages, “then who does the CMA think should be obliged to help – elves, maybe?”

To which any number of physicians have already replied, “Not elves, but lawyers.”

[Full text]

[iPolitics version- Doctors aren’t obliged — legally or otherwise — to help people die]


Conscience freedom in healthcare bill urged

The Point

Reproduced with permission

Christian Medical and Dental Association

Excerpted from “Stand with Cathy for conscience rights,” USCCB video, November 17, 2015 – The freedom of conscience is at the heart of who we are as Americans. And federal law has long protected that freedom. But now conscience rights are under attack. And healthcare providers, whose rights have been violated, are speaking up.

Catherina Cenzon-DeCarlo, RN: “On May 24, 2009, the hospital where I work coerced me to assist in a 22-week abortion. My duties as a nurse included being present for the bloody dismemberment and accounting for body parts afterwards.”

Cathy’s employer threatened her job and nursing license if she did not participate in a late-term abortion against her deeply held beliefs.

If Congress does not act, doctors and nurses across the country will be forced to violate their conscience or leave healthcare altogether.

CMDA Senior Vice President and OB/Gyn Gene Rudd, MD: “Stories like that of Ms. Cenzon-DeCarlo may seem too remote, rare and unlikely to affect your world. Think again. CMDA frequently hears similar complaints from our members. In one member survey, four in 10 members reported being pressured to act against their conscience. And one in four suffered consequences for standing their ground.

“So what should we do? Let me suggest two types of actions. First, as citizens, seek to defend our First Amendment rights. CMDA is doing that organizationally on your behalf, but your direct voice to those who represent us in Washington and state capitals is critical.

“Secondly, as followers of Christ, we should stand for what is right. When asked to violate the principles of Scripture and your Spirit-guided conscience, refuse. And we must defend our neighbors who are doing the same.

“This quote from Martin Niemöller, a German pastor during World War II, is a reminder of what is at stake if we ignore the problem:

‘First they came for the Socialists, and I did not speak out—Because I was not a Socialist. Then they came for the Trade Unionists, and I did not speak out— Because I was not a Trade Unionist. Then they came for the Jews, and I did not speak out— Because I was not a Jew. Then they came for me—and there was no one left to speak for me.’”


  1. Share your own story of discrimination on CMA’s website. Click here to share your views and experience and click here to read what others are saying.
  2. Tell your lawmakers to prevent discrimination in healthcare and support the Abortion Non-Discrimination Act. [Note: it may be possible to include this legislation in an upcoming omnibus appropriations bill.]

Resources Abortion- and conscience-related legislation: CMDA’s Freedom2Care legislative action site CMDA’s Healthcare Right of Conscience Ethics Statement

Click here to comment


Sweden has it all – except freedom of conscience

A court has ruled that abortion rights leave no room for a midwife to be exempted.


Carolyn Moynihan*

Because of its welfare state and gender equity policies Sweden has become a beacon of progressiveness in everything that affects women. But there is one kind of woman the Scandinavian state seems to have no time for: a health professional who objects to abortion.

Two years ago Ellinor Grimmark completed a midwifery internship at Hoglandssjukhuset women’s clinic in southern Sweden, but because she told the management that she had a conscientious objection to performing abortions, she was denied further employment there.

A voicemail message from the head of the maternity ward informed her that she was “no longer welcome to work with them”, and she was challenged about “whether a person with such views actually can become a midwife.” Her student funding was also cancelled.

Mrs Grimmark was subsequently turned down for employment at another clinic, where she was told that a “person who refuses to perform abortions does not belong at a women’s clinic”.

Finally she was offered a job at the Varnamo Hospital women’s clinic. But by then she had filed a civil rights complaint against the Hoglandssjukhuset clinic with the local Equality Ombudsman, and when the media got wind of it Varnamo withdrew its offer.

These days Mrs Grimmark practices her profession in Norway, where her conscience rights are respected, but her case is by no means closed.

The Ombudsman’s ruling held that she was not being discriminated against for her pro-life views but for not being available to fulfil the job description, thus threatening the “availability of abortion care” and the “protection of health” of patients requiring an abortion in Sweden.

Represented by the organisation Scandinavian Human Rights Lawyers, she then took her case against the county where the Hoglandssjukhuset clinic is located to the Jonkoping District Court, at the same time seeking compensation for damages and discrimination – a total of 140,000 Swedish kronas (around $20,000 USD).

Last week that court acknowledged that Mrs Grimmark’s rights had been infringed, but it still ruled against her, saying that maternity centres have the right to define job descriptions and a “duty to ensure that women have effective access to abortion.” The court also ruled that she is liable to pay for the other party’s legal costs, which will amount to more than USD $109,000.

The US-based Alliance Defending Freedom, which filed an amicus brief on behalf of Mrs Grimmark, regards this order as calculated to scare others who might follow her example. Her wages as a midwife are unlikely to measure up to such punishing costs. Her husband has launched an appeal for funds on Facebook.

Strong grounds for appeal

There are, however, solid grounds for an appeal, as her senior counsel, Ruth Nordstrom, has indicated. She said it was disappointing that the lower court had “decided not to examine the right of freedom of conscience according to international law and the European Convention on human rights, at all.”

The fact is that freedom of conscience is a fundamental human right protected by the 1950 European Convention on Human Rights and Fundamental Freedoms (ECHR), signed by Sweden in 1993. Article 9 (2) states:

“Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and, in a democratic society, are necessary with regard to the general public safety or the protection of public order, health or morals or for the protection of other rights and freedoms.”

Is Sweden’s democracy and public health so fragile that it cannot stand the odd health worker being exempted from the grisly business of killing unborn babies?

It’s true that the country seems to have a pressing need for abortion – one in every two women who get pregnant during their lifetime has a termination. This gives Sweden the highest rate in Scandinavia and one of the highest rates in the world – especially among teenagers, who are schooled in birth control rather than abstinence.

Perhaps it is Sweden’s famously liberal sexual culture that makes it so defensive of abortion rights. Writing in National Review in May, Jacob Rudolfsson of the Swedish Evangelical Alliance noted:

* The Swedish Association of Health Professionals has offered no support for Ellinor Grimmark, since it is committed to abortion.

* “Only one hospital has offered her ‘assistance’, and it was for a counsellor to help her ‘overcome her aversion to abortion’ …”

* One local health administrator has declared that he “would gladly stand in the front with a baseball bat to prevent” conscientious objectors working in his hospital.

* Mona Sahlin, the national coordinator against violent extremism, has declared that “one who refuses to participate in abortions is an extreme religious practitioner,” one who is simply “on a different level from the Islamic State”.

Did you get that? A pro-life Swede is just a few notches down from jihadi terrorists, on the same scale.

And yet, says Rudolfsson, when the current Abortion Act was drafted in 1974, assurances were given that medical workers would, for ethical or religious reasons, be able to opt out of participating in abortions. “Forty years later, the consensus has changed.”

‘Consensus’ may carry the day, but whose consensus?

But this freedom-stifling “consensus” actually puts Sweden out of step with a 2010 resolution of the Parliamentary Assembly of the Council of Europe that states:

“No person, hospital or institution shall be coerced, held liable or discriminated against in any manner because of a refusal to perform, accommodate, assist or submit to an abortion, the performance of a human miscarriage, or euthanasia or any act which would cause the death of a human fetus or embryo, for any reason.”

Clear enough, surely, but Sweden has wriggled around resolution 1763 by arguing that it is “soft law” and that it interferes with its own laws guaranteeing abortion within certain limits. At the same time it argues that a midwife’s participation in abortion is required by the (older) ECHR provision that “the interests and rights of individuals seeking legal medical services are respected, protected and fulfilled.”

Legal battles have also been waged in Scotland, Poland, Croatia and Norway, but according to ADF, even last week’s Swedish court acknowledged that the majority of European states allow for rights of conscience for doctors and nurses.

And according to Swedish legal scholar Reinhold Fahlbeck, the stronger the European consensus, the less wriggle room there is for Sweden — or other holdout states.

That consensus just got stronger with a ruling from Poland’s highest court, the Constitutional Tribunal, last month recognising the rights of all medical staff to not perform abortions, based on their conscience. It further ruled that neither would they be required to refer women seeking abortions to physicians who would perform them.

ADF notes that the Polish ruling “significantly raises the stakes in Ellinor’s case, as a victory could define conscience rights for all European medical workers.”

It would also allow some fresh air to blow through the stifling conformity of Sweden’s sexual culture which depends so heavily – and thoughtlessly, it seems – on extinguishing human life. Even for women’s equality, this is too high a price.

This article is published by Carolyn Moynihan and under a Creative Commons licence. You may republish it or translate it free of charge with attribution for non-commercial purposes following these guidelines. If you teach at a university we ask that your department make a donation. Commercial media must contact Mercatornet for permission and fees. Some articles on this site are published under different terms.

Moral injury: Troops talk of how war assaults conscience

Military Times

Patricia Kime

Former Army Reserve Capt. Josh Grenard thought the anguish of losing men in  combat would eventually wane in the years after a deployment to Iraq. But when soldiers from his unit began committing suicide, the wounds reopened — fresh, raw and painful.

“It’s almost two sets of injuries — but having your men kill themselves is wholly different,” Grenard said. “Was there something I could have done? Was there a way we could have gotten them help? Should I have seen it?”

He found himself slipping into isolation, going to his law office each day but questioning his very existence. He drank from 7 a.m. to 10 p.m. daily — “very metered, all day.”

“You don’t want to think about anything. You don’t want to answer those questions,” he said.

Grenard was not suffering from post-traumatic stress disorder, the psychiatric condition normally associated with combat.

Rather, his feelings, which included crippling helplessness, emotional pain, guilt and frustration, are often described as “moral injury,” a psychological condition related to having done something wrong, being wronged by others or even witnessing a wrongdoing, argues Georgetown University philosophy professor Nancy Sherman. [Full Text]

Democratic bill gives doctors right of conscience to perform abortions

Milwaukee Wisconsin Journal Sentinel

Jason Stein

Madison— Doctors in Wisconsin would gain a right of conscience to perform abortions, sterilizations or other procedures for their patients at certain hospitals even if those institutions didn’t wish to allow them, under long-shot legislation put forward by Democratic lawmakers Thursday.

The proposal by Rep. Chris Taylor (D-Madison) and Sen. Jon Erpenbach (D-Middleton) would work as a sort of reverse to the state’s existing conscience clause, which prohibits hospitals and doctors from being required to perform abortions if they oppose them. [Full text]

What happens when a patient’s right to die and a doctor’s right to refuse collide?

Saskatoon StarPhoenix

Jonathan Charlton

The College of Physicians and Surgeons of Saskatchewan is set to finalize a policy to guide the province’s doctors on the controversial issue of doctor assisted death.

While the Supreme Court of Canada has struck down the old law forbidding the service, the former Conservative government didn’t introduce new legislation. The new Liberal government, meanwhile, could ask for an extension to the court’s Feb. 6, 2016 deadline.

However, the College doesn’t want doctors in the province to be stranded without any guidance, hence its own policy, which could be finalized at the College’s meeting Friday.

Associate registrar Bryan Salte walked the Saskatoon StarPhoenix through the complex issue. This interview has been condensed and edited for length and clarity. [Full text]


Project submission re: conscientious objection policy

A bureaucracy of medical deception

 Quebec physicians told to falsify euthanasia death certificates

Regulators support coverup of euthanasia from families

Sean Murphy*

In the first week of September, the Canadian Medical Association (CMA) was reported to be “seeking ‘clarity'” about whether or not physicians who perform euthanasia should misrepresent the medical cause of death, classifying death by lethal injection or infusion as death by natural causes. The question arose because the Quebec College of Physicians was said to be “considering recommending” that Quebec physicians who provide euthanasia should declare the immediate cause of death to be an underlying medical condition, not the administration of the drugs that actually kill the patient.1 In fact, the Collège des médecins du Québec and pharmacy and nursing regulators in the province had already made the decision. In August, the three regulators issued a Practice Guide directing Quebec physicians to falsify death certificates in euthanasia cases.

The physician must write as the immediate cause of death the disease or morbid condition which justified [the medical aid in dying] and caused the death. It is not a question of the manner of death (cardiac arrest), but of the disease, accident or complication that led to the death. The term medical aid in dying should not appear on this document.2

Lawyer Jean Pierre Ménard correctly observed that Quebec’s euthanasia law does not require physicians to report euthanasia on death certificates.1  M. Ménard is an expert on euthanasia law consulted by the Quebec government and the CMA,3  but he seems unaware of guidelines relevant to the classification of deaths and medico-legal death investigations. . . [Full text]

Quebec Euthanasia Guidelines

Practice guide issued by Quebec health care profession regulators


Sean Murphy*

Quebec’s Act Respecting End of Life Care (ARELC) was passed in June, 2014 and comes into effect in December, 2015.  When enacted, the  law purported to legalize euthanasia in the province, but its actual legal effect was questionable because Canadian provinces do not have jurisdiction over criminal law.  Only the Canadian federal government can make laws governing homicide and suicide.

However, in February, 2015, the Supreme Court of Canada released its decision in the case of Carter vs. Canada. The Court struck down the criminal prohibition of homicide and assisted suicide to the extent that it prevents the provision of physician assisted suicide and physician administered euthanasia for a certain class of patients.  The Court specified that the law cannot prevent the procedures for competent adults who are suffering intolerably as a result of a grievous and irremediable medical condition, which cannot be relieved by other means acceptable to the patient.  The declaration of invalidity was suspended for one year to allow the government time to revise the law.

The federal government under Conservative Prime Minister Stephen Harper took no action until mid-July, when it appointed a panel to study the issue and offer advice about legislative options.  The government was defeated in the federal election in October, and it remains unclear what direction the new Liberal government will take.

ARELC thus comes into force about two months before the Supreme Court ruling in Carter takes effect, while the criminal prohibition of euthanasia and assisted suicide is still in place.  However, the guidelines for euthanasia in ARELC are actually more restrictive than those proposed by the Supreme Court of Canada in Carter, so it seems doubtful that the federal government will challenge the Quebec law.

In August, 2015, the state regulators of the professions of medicine, pharmacy and nursing jointly issued an 88 page Medical Aid in Dying Practice Guide to direct the provision of euthanasia in Quebec.  The Guide appears to be available only in French, and is currently accessible only through a password protected portal on the Collège des médecins du Québec website, or by making an access to information request.  However, the Guide also states that it can be reproduced as long as the source is acknowledged.

What follows is a partial machine assisted English translation of the Guide set opposite the original French text.  For ease of reference, each translated segment is identified by a translation number (T#).  Only those parts of the Guide that appear to have some relevance to freedom of conscience are reproduced here.

Go to translation