The Context for Nurses

Some participants in the abortion debate characterize abortion as a strictly private matter between the pregnant woman and her physician. Things are not quite so simple; doctors do not function without nurses who are intimate participants at every stage of the procedure.  Nurses are faced, therefore, with a very human and personal dilemma that parallels in many ways the one confronting the woman considering an abortion and her physician.  The debate, however, has taken nurses for granted.

A number of factors combine to make the burden of this personal dilemma particularly heavy for nurses.   First, unlike doctors, nurses are employees of hospitals.  Their employment, and the economic prospects of their families, may be at risk if they refuse to participate in an abortion procedure.

Second, even where their personal beliefs are accommodated by their employer, nurses, who seek such accommodation can be singled out as non-conformists, or lacking "team spirit." This effectively inhibits their chances of promotion.

Third, like doctors, nurses often specialize in areas such as obstetrics or gynaecology in which they have an interest and a talent. They acquire special knowledge, experience and skills in these areas.  The common "accommodation" for objecting nurses is a transfer out of the department or ward in which abortion procedures are carried out, despite the fact that such procedures ordinarily comprise only a small part of the department's practice.  Nurses are compelled to choose between their chosen area of specialization on the one hand and their personal beliefs on the other.

By contrast, no one has ever suggested that Canadian doctors who specialize in obstetrics and gynaecology but who refuse to perform abortions should leave the specialty entirely.  Yet this is precisely what some have suggested that nurses who express a conscientious objection to abortions should do.

Fourth,  it is  becoming  increasingly difficult for nurses to choose areas of practice in which they can avoid the problem, since abortions are often performed in wards other than  obstetrics and gynaecology.

Protection for Nurses

The fact that nurses, a primarily female group,  have been ignored in the abortion debate highlights what has traditionally been perceived as their subordinate status in the hospital hierarchy.  This subordinate status, combined with the factors outlined above, makes it unlikely that the conscientious objections of nurses will be heard or heeded. This makes legislation protecting their rights a moral imperative.

Such protection should involve two elements.  The first is the protection of conscience; no person should be compelled directly or by threat of penalty to be an unwilling participant in an abortion procedure.  The second is the right to protection against discrimination; no person should be impeded in his or her career path by  an exercise of personal conscience.  Both elements are necessary to ensure adequate protection for nurses.

Nurses for Life recognizes that protective legislation may cause some concern to those who fear that free access to abortions could be impaired.  It is not our goal to use the arguments presented here as a device to prevent abortions in Canadian hospitals.  Our goal is to protect nurses who object to assisting in abortions from being compelled to choose between their vocations and their personal beliefs.

We offer four reasons in support of special protective legislation:

1. Protection  for  nurses  is  consistent with  the  spirit of the Canadian Charter of Rights and Freedoms;
   
2. It is consistent with the spirit of provincial Human  Rights Codes;
   
3. It is consistent with the protection given to nurses in other free and democratic societies;
   
4. It is consistent with the ethical codes of professional organizations in the health care field.

We address each of these reasons in turn.

1. Protection for Nurses is Consistent with the Spirit of the Canadian Charter of Rights and Freedoms:

The advent of the Canadian Charter of Rights and Freedoms establishes the cardinal value, in our society, of the right of individuals to hold and to conduct their lives in accordance with different personal moral opinions and beliefs.  This is reflected in sections 2 and 15 of the Charter which guarantee that:

"s.2. Everyone  has  the  following  fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion ...

s.15. (1)   Every individual is equal before and under the law and has the right to the equal protection  and  equal  benefit  of  the  law without  discrimination  and,  in  particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. ..

These provisions might be thought to offer nurses some protection.  Unfortunately, it is not clear whether they apply to hospitals, especially in the area of employment relations.

Even if hospital action is subject to review under the Charter, there are no decided cases  that clearly establish protection for conscientiously objecting nurses.  Nor, to the best of our knowledge, are there any cases pending in the Courts on this issue.  The absence of express  protection  creates  uncertainty  which  discourages  nurses  from asserting their rights. Legislation is needed to clarify the matter.

2. Protection for Nurses is Consistent with the Spirit of Provincial Human Rights Codes:

Some Canadian human rights legislation might be seen to protect nurses.  For example, discrimination on the basis of creed is contrary to the Ontario Human Rights Code.  A part of the obligation to refrain from discriminating on the basis of creed is a positive obligation on employers, among others, to make reasonable attempts to accommodate religious beliefs.

Sections 4 and 10 of the Ontario Human Rights Code provide:

4. (1)  Every person has a right to equal treatment with respect to employment without discrimination because of ... creed, ...

(2)  Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of ... creed,

10.   (1)   A right of a person under Part I [including s.4] is infringed where a requirement, qualification or factor exists that is not discrimination on a  prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona  fide  in the circumstances; or

(b) it is declared in this Act, other than in section 16, that to discriminate because of such ground is not an infringement of a right.

(2)  The Commission, a board of inquiry, or a court shall not find that a  requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the  person  responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any. (emphasis added)

A significant difficulty with these provisions and similar ones in other Codes in Canada is that they leave too much to implication and inference.  The right of conscientious objection and the protection from discrimination are not express, and can only be achieved by a nurse after protracted legal proceedings.  Nurses need better and more express protection and their employers need certainty.

More importantly, in some provinces there is no protection.

3. Protection for Nurses is Consistent with the Protection Given to Nurses in Other Free and Democratic Societies

Providing conscientiously objecting nurses with some form of legal protection would not be a uniquely Canadian development.  Numerous other free and democratic societies have provided just such protection. There is no legitimate reason for denying this protection to Canadian nurses and other health care workers.

United Kingdom

Nurses who express a conscientious objection to abortion have, since 1967, received special protection under s.4 of the 1967 Abortion Act in the United Kingdom.  This section provides that:

Conscientious objection to participation in treatment

4.-(1)  Subject to sub-section (2) of this Section, no person shall be under any duty, whether by contract or by any statutory or other legal requirements, to  participate in any  treatment authorised by this Act to which he has a conscientious objection:  Provided that in any legal proceedings the burden of proof of conscientious objection shall rest on the person claiming to rely on it.

(2) Nothing in sub-section (1) of this Section shall affect any duty to participate in treatment which is necessary to save the life or to prevent grave permanent injury to the physical or mental health of a pregnant woman.

This section allows nurses to refuse to participate in abortions either directly or indirectly.  Nurses may, under this section, validly refuse to be present in the operating theatre.  In addition, they may refuse to assist in non-surgical abortions (prostaglandins and saline injection).

New Zealand

Nurses  in  New Zealand  receive both the  right to make  a conscientious objection and protection from discrimination.  Section 46 of the Conception, Sterilisation and Abortion Act of 1977 provides:

46. Conscientious objection -  (1)  Notwithstanding anything in any other enactment, or any rule of law, or the terms of any oath or any contract (whether of employment or   otherwise), no registered medical practitioner, registered nurse, or other person shall be under any obligation -

(a) To perform or assist in the performance of an abortion or any operation undertaken or to be undertaken for the purpose of rendering the patient sterile;

(b) To fit or assist in the fitting, or supply administer or assist in the supply administering, of any contraceptive, or to offer or give any advice relating contraception,  -

  if he objects to doing so on grounds of conscience.

  (2) It shall be unlawful for any employer -

(a) To deny to any employee or prospective employee any employment,  accommodation, goods, service, right, title, privilege, or benefit merely  because  that employee or prospective employee objects on grounds of conscience to do  any act referred to in subsection (1) of this section; or

(b) To make the provisions or grant to any employee or prospective employee  of  any employment,  accommodation,  goods,  service, right, title privilege, or benefit conditional upon that other person doing or agreeing to do any thing referred to in that subsection.(3) Every person who suffers any loss by reason of  any  act  or  omission  rendered  unlawful  by subsection (2) of this section shall be entitled to recover damages from the person responsible for the act or omission.

(4) Nothing in this section shall limit or affect the provisions of section 5 of this Act or section 43A  of  the  Medical  Practitioners  Act  1968  (as inserted by section 2 of the Medical Practitioners Amendment Act 1977).

United States

To date,  forty-four American states have enacted legislation granting special protection to conscientiously objecting nurses and other health care workers.  In  general,  these provisions allow  nurses who express an objection to assisting in abortions on religious or moral grounds to be exempted from doing so.  They explicitly protect nurses who voice such  objections  from  subsequent  discrimination.  Some also expressly prohibit discrimination at the hiring stage. 

For example, Texas legislation provides:

Section 1.  A physician, nurse, staff member, or employee of a hospital or other health care facility who objects to performing or participating, directly or indirectly, in an abortion procedure may not be required to perform or participate, directly or indirectly, in an abortion procedure.

Section 3.  A hospital or health care facility may not discriminate in any manner against a physician, nurse,  staff member, or employee or against an applicant for such positions, who refuses to perform or participate  in an abortion  procedure.   No physician, nurse, staff person, or employee shall be discriminated against for their willingness to participate in abortion procedures at other facilities.  An educational institute may not discriminate  against  applicants  for  admission  or employment  as  students,  interns,  or  residents because of their attitudes concerning abortion.

Section 4.  A person whose rights under this Act are violated may sue a hospital, health care facility, or educational institution in district court in the county where the hospital, facility, or institution is located to enjoin further violations of this Act and for such affirmative relief as may be appropriate, including, but not limited to, admission or reinstatement of employment with back pay plus 10 percent interest, and any other relief necessary to ensure compliance with the provisions of this Act.

Such protection, it is suggested, should also be given to Canadian nurses. Doing so would be consistent not only with provisions enacted in other western jurisdictions, but also with current Canadian moral standards as expressed  in  the  ethical  codes  of  various  Canadian  professional organizations.

4. Protection for Nurses is Consistent with the Ethical Codes of Professional Organizations in the Medical Field

Codes of conduct are expressions of the ethical standards which professional bodies consider to be binding on their members.  These also reflect the public view of acceptable moral behaviour by members of a profession.  A number have adopted provisions that protect conscientious objectors.

Canadian Nurses' Association

The Code of Ethics adopted by the Canadian Nurses^' Association provides that:

A  nurse  is  not  ethically  obliged  to  provide requested care when compliance would involve a violation of his or her moral beliefs.  When that request falls within recognized forms of health care, however, the client should be referred to a more appropriate health care practitioner.  Nurses who have or are likely to encounter such situations are moralIy obligated to seek to arrange conditions of employment so that the care of client is not jeopardized.

The Code recognizes an ethical sphere within which nurses are free to act in accordance with their personal beliefs.  Nurses are not obliged to remove themselves entirely from an area in which ethical concerns are likely to arise.

Registered Nurses' Association of Ontario

In April, 1988, the Registered Nurses' Association of Ontario adopted a policy statement on the right to refuse to participate in care. Part of that policy statement says:

The primary focus in such discussions must be on the good of the patient and the obligations of the individual nurse and the health care agency to provide care.  Despite  that, whenever  possible,  consideration should be given to the right of the health care provider to request relief or transfer from active involvement in caring for patients  undergoing a procedure which  would violate the provider's religious belief.

Note that the "transfer" referred to is simply a transfer from active involvement in caring for the patient undergoing that particular procedure.  It is not an obligation to seek a transfer out of the ward.

College of Nurses of Ontario

A similar emphasis on the nurse's duty is made in the ethical Guidelines  in  Nursing adopted by the College of Nurses of Ontario. Provisions on accountability in these guidelines provide in part that:

[Nurses  have  a  responsibility  to  provide  the opportunity for health care and to respect the individual's right to receive it.]  If conflict arises [between the nurse's values and  the  client's values], the nurse must be able to respect the client's point of view and give the necessary care or, if this is impossible [morally unacceptable to the nurse], the nurse must arrange for someone else to take over the care of the client.

The scope of responsibility and accountability vary according to context and should be mutually defined by the nurse and the employer.

There is no obligation to transfer to a new department.  All that is required is that suitable arrangements be made for someone else to provide the necessary care to that particular patient.

Alberta Association of Registered Nurses

The same position is also echoed by the Alberta Association of Registered Nurses:

It is recognized that nurses as individuals may hold certain moral, religious or ethical beliefs about termination of pregnancy and may be, in good conscience, compelled to refuse involvement.

The A.A.R.N. supports the right of a nurse to withdraw from the situation  without being submitted to censure, coercion, termination of employment or other forms of discipline, provided that the patient's right to receive the necessary nursing care would take precedence over exercise of the nurse's individual beliefs and rights.

The nurse has an obligation to communicate reluctance to become involved to the employer, preferably in writing,  in order that a mutually suitable solution may be reached in the provision of necessary nursing care.  (This should be done at the time of employment or at the time of policy change so that services to the patient are not jeopardized.) The policy underlying this statement is that a nurse's beliefs should be accommodated.

Canadian Medical Association

In two broad provisions, the Canadian Medical Association's Code of Ethics for  Physicians implicitly provides  physicians with  the protection we are seeking for nurses.   Paragraph 12 of the Canadian Medical Association's Code guarantees the physician an absolute right, except in an emergency, to refuse to accept a patient.  No reasons are needed for such a refusal.  It follows therefore that the refusal on moral grounds would be perfectly acceptable.  In  addition,  paragraph 16 emphasizes that even when a physician has accepted a patient, he is not obliged to recommend a form of therapy if he is prevented from doing so by his conscience.  The only duty in such a case is for the physician to tell the patient of this fact.

Doctors may not be compelled to perform any medical procedure that they might consider to be immoral or unethical except in emergency situations.

The Canadian Medical Association has also explicitly considered the abortion issue.  In a 1985 policy statement on abortion it unequivocally stated that:

...The association... supports the position that no hospital,  physician or other health care worker should be compelled to participate in the provision of abortion services if it is contrary to their beliefs or wishes.

This statement also includes nurses.

The Canadian Medical Association again considered the abortion issue in their 1988 Policy Summary.  This 1988 policy statement on induced abortions states:

• A physician should not be compelled to participate  in  the  termination  of  a pregnancy...
  
• A physician whose moral or religious beliefs prevent him or her from recommending or performing an abortion should inform the patient of such so that she may consult another physician.
  
• No discrimination should be directed against doctors who do not perform or assist at induced abortions.   Respect for the right of personal decision in this area must be stressed, particularly for doctors training in obstetrics and gynaecology, and anesthesia. 

We believe that these concerns apply equally to nurses.

5. Protection For Nurses Would Not Impair The Functioning Of Hospitals

It may be argued that the protection sought here will impair the functioning of hospitals.

We do not believe that this concern can be justified when it is analyzed.   It should always be possible for employers to arrange work schedules of nurses so that there is someone available on any particular shift who has no conscientious objection to abortion procedures.

Further, the administrative problem should be seen in context.  Even in active obstetrics and gynaecology wards abortion procedures are relatively infrequent and do not comprise a significant part of the practice of nurses in the wards.  It is therefore not reasonable to exclude nurses who may conscientiously object to abortion procedures from working in such wards.

PROPOSED LEGISLATION

We believe that Parliament ought to make a statement, in the form of legislation, that affirms the values expressed in the Canadian Charter of Rights and Freedoms, provincial Human Rights Codes, foreign legislation and in the codes of the professional organizations set out above. Since abortions continue to be performed in Canada in the absence of any legislation and since such protection is needed now, protective provisions could be incorporated in special legislation.  Alternatively, protection could be incorporated into any new abortion legislation.

The  legislation  could  adopt  the  format  used  in  other jurisdictions,  enacting a basic prohibition against both compulsion and discrimination, specifying the workers to whom it would apply (nurses_,  and other health care workers within the hospital).  The legislation should also include specific reference to the remedies available to protected individuals should the statute be violated.   Nurses for  Life strongly  recommends legislation similar to that adopted by the State Legislature of Texas (quoted earlier).

We recognize that there is a legitimate debate about whether protective legislation should be federal or provincial.  Our concern as an organization is to ensure that protection is available as soon as possible. We have no desire to be lost in  a jurisdictional debate between the provincial and federal levels of government.  In this brief we have recommended that the Parliament of Canada enact protective legislation.  We will make the same submissions to provincial governments. We believe that Parliament ought to make a statement, in the form of legislation, that affirms the values expressed in the Canadian Charter of Rights and Freedoms, provincial Human Rights Codes, foreign legislation and in the codes of the professional organizations set out above. Since abortions continue to be performed in Canada in the absence of any legislation and since such protection is needed now, protective provisions could be incorporated in special legislation.  Alternatively, protection could be incorporated into any new abortion legislation.

The  legislation  could  adopt  the  format  used  in  other jurisdictions,  enacting a basic prohibition against both compulsion and discrimination, specifying the workers to whom it would apply (nurses_,  and other health care workers within the hospital).  The legislation should also include specific reference to the remedies available to protected individuals should the statute be violated.   Nurses for  Life strongly  recommends legislation similar to that adopted by the State Legislature of Texas (quoted earlier).

We recognize that there is a legitimate debate about whether protective legislation should be federal or provincial.  Our concern as an organization is to ensure that protection is available as soon as possible. We have no desire to be lost in  a jurisdictional debate between the provincial and federal levels of government.  In this brief we have recommended that the Parliament of Canada enact protective legislation.  We will make the same submissions to provincial governments.