"NO MORE CHRISTIAN DOCTORS"
Appendix "F"
THE DIFFICULT COMPROMISE
Canadian Medical Association,
Abortion and Freedom of Conscience
Full Text
The Canadian Medical Association was one of the groups that supported the
legalization of abortion. However, when the law was passed in 1969, its Code
of Ethics still described abortion as "a violation both of the moral law and
of the criminal code of Canada, except when there is justification for its
performance." According to the Code, abortion was justified only when
"continuance of pregnancy would imperil the life of the mother."1
1970 revision of the Code of Ethics
In 1970 CMA delegates approved the first major revision of its Code of
Ethics in 50 years. It did not mention abortion because, said the chairman
of the ethics committee, "we consider it to be like any other surgical
procedure."2
However, the new Code did include the following statement, obviously made
necessary by the legalization of abortion:
Personal morality
15. An ethical
physician will, when his personal morality prevents him from recommending
some form of therapy which might benefit the patient, acquaint the patient
with these factors.3
Increasing abortion rates and increasing controversy
As in other countries, legalization of abortion was followed by a
dramatic yearly increase in abortion rates which continued, in Canada, for a
decade.4 (Appendix
"D1": Figure D1.2.1 ) CMA delegates approved abortion for "non-medical social grounds"
in 1972, and by 1974 it had become clear that most abortions were being
performed for "non-medical - social, psycho-social or socioeconomic -
reasons."5
The broadened grounds for abortion and continuing increases in the
abortion rate increased the likelihood of conscientious objection to the
procedure. It also brought raging controversy. In 1975 the CMA Director of
Communications disclosed that the Association was being inundated with
letters about abortion from physicians and the public,6 one of which
expressed realistic pessimism about the situation:
[T]he CMA is composed of physicians who hold strongly
opposing opinions on the morality of therapeutic abortion. Consequently, it
will be impossible to find a compromise that will satisfy all members of the
association.7
Contrary to the smug assertion made by the chairman of the ethics
committee five years earlier, it had become obvious that abortion was not
"like any other surgical procedure."8
Delegates at the 1976 Alberta Medical Association annual general meeting
saw a need to reaffirm its policy that "no pressure be applied against
physicians or hospitals that do not conduct abortions," which suggests that
such pressures were being felt.9 Certainly, there is evidence in the
professional literature of the period from the United States and the United
Kingdom that collisions were occurring between those demanding the provision
of abortion and those refusing to provide them.10
1977 revision of the Code of Ethics
In June, 1977, the CMA General Council, the governing body of the
Association, revised Section 15 of the Code of Ethics, which, seven years
earlier, had introduced the requirement that physicians notify patients of
"personal" moral beliefs that might prevent them from recommending a
procedure.
The Council’s discussion seems to have been long and emotional.11 The
revised version stated:
15. An ethical physician, when his personal ethic
prevents him from recommending some form of therapy will so acquaint his
patient and will advise the patient of other sources of assistance.12
It is not clear whether or not the revision was presented to and approved
by the annual general meeting following the General Council sessions, since
the Canadian Medical Association Journal report of the AGM the following
month described it as "uncontroversial meeting by the standards of some CMA
annual gatherings," with only "mild discussion" of contentious topics.13
In any case, it soon became obvious that the revision had made things
worse. In January, 1978, blaming "incorrect mass media news stories" for
"spreading confusion," the CMA’s hapless Director of Communications had to
issue a clarification.
The Code of Ethics does not require a physician whose
personal morality prohibits him from counselling, recommending or arranging
an abortion to refer a patient seeking that service to a physician who will
definitely, without question, provide the service desired. Indeed, such
action would be contrary to the intent of the Ethics Committee that proposed
the change. . .
Prior to the June 1977 meeting of General Council, a
physician with a conflict of interest (professional vs personal interest
position) because of his personal morality, was required to inform the
patient, and nothing more. The Ethics Committee recognized that,on occasion,
this could result in a patient being (de facto) abandoned - a result that
was not in keeping with the tenets of the profession. The intent of the
change was to place responsibility on the physician, not only to inform the
patient of the conflict of interest created by his moral position, but also
to help the patient find other sources of assistance.
The physician might refer the patient to a colleague
without such a conflict of interest, to a social agency, to a clergyman for
religious counselling, to all three or to other sources of assistance. The
revised section of the Code of Ethics does not suggest or state that he must
refer the patient to a colleague who is in favour of abortion on demand.
Indeed, CMA policy clearly opposes such an approach. The Association has
encouraged physicians to bring unbiased professional judgement to bear on
each individual case. He should avoid the simplistic role of dispenser of a
service desired or thought to be desired, by the patient.14
The attempt at clarification did not help. The revised policy continued
to be highly divisive, generating "confusion and dismay" within the
Association.15 The focus of much of the concern was the apparent intention to
force objecting physicians to become morally complicit in abortion by
facilitating the procedure:
If we are required by the code of ethics to direct our
patients to other sources for obtaining an abortion, I believe the physician
is, in fact, condoning the abortion and is therefore in contravention of his
own personal morality. This means that a physician with a conscience is
asked to select for the patient a person he possibly regards as a murderer,
and this is a great, if not greater, offence to his conscience than if he
did the deed himself. With the current publicity given to abortion
facilities I do not believe it is necessary to torture our colleagues in
this way.16
. . . No patient has the right to anything other than
what a physician can in his conscience do. To ask for more is to ask for his
cooperation in performing an act that he deems an act of killing an innocent
human being. . . I find it intolerable that the CMA is telling me I may not
follow my conscience in this most serious matter.17
The accusation of "abandonment" was strenuously rejected as at least
an exaggeration, and as an injustice,18 and the illusion of moral neutrality
ridiculed:
. . .we are told to bring "unbiased professional
judgement to bear on each individual case." How can there be an unbiased
position in this situation? The only stance that could approach an unbiased
position is to have no moral conviction and assume "the simplistic role of
dispenser of a service", a position we are told to avoid. . . .19
These arguments were supported by the Newfoundland Medical
Association, which passed a resolution to that effect "because many physicians
might have moral and religious objections to passing their patients on as
well as to recommending abortions themselves." The Ontario Medical
Association also expressed reservations about the provision.20
1978: revision rejected, wording restored
The problem was brought to the meeting of the General Council in June,
1978. After a debate that saw objecting physicians compared to "bigoted
moralists," by a vote of 81 to 68 the Council restored the original wording
of the provision under section 16 of the Code of Ethics:21
16. An ethical physician, when his personal morality
prevents him from recommending some form of therapy which might benefit his
patient will so acquaint the patient;22
Many years later, a physician who was among those present agitating for
the amendment told the Project Administrator that he and his colleagues were
adamant that no physician who objected to abortion would be forced to refer
for the procedure under any circumstances and were supported by legal
counsel,23 so the amendment by the General Council probably avoided a major
confrontation on the floor of the Annual General Meeting.
In 1988, after the Supreme Court of Canada struck down all legal
restrictions on abortion, the CMA revisited its policies on the procedure.
It maintained its policy on referral; objecting physicians were obliged to
disclose their views to patients so that they might consult other
physicians, but there was no requirement that they facilitate the procedure
by referral.24
The wording of the Code remained unchanged until 1990, when a reference
to "religious conscience was added and the section re-numbered.25 A 1996
revision dropped reference to religion but maintained the policy.26 The 2004
edition of the Code (now in force) introduced "values language" and again
re-numbered the provision, but the policy remained intact.27
"No ethical consensus" to support mandatory referral
In 2000, the Project Administrator wrote to the Canadian Medical
Association concerning its policy on referral for abortion. In a subsequent
telephone conversation, Dr. John R. Williams, then CMA Director of Ethics,
confirmed that the Association did not require objecting physicians to refer
for abortion. He explained that the CMA had once had a policy that required
referral, but had dropped it because there was "no ethical consensus to
support it." This was clearly a brief reference to the short-lived 1977
revision of the Code of Ethics and ensuing controversy. Two years later,
speaking of physicians who decline to provide or to refer for contraceptives
for religious reasons, he said, "[They're] under no obligation to do
something that they feel is wrong."28
Policy reaffirmed
In a guest 2006 editorial in the Canadian Medical Association Journal,
Professors Sanda Rodgers of the University of Ottawa and Jocelyn Downie of
Dalhousie University complained that "[s]ome physicians refuse to provide
abortion services and refuse to provide women with information or referrals
needed to find help elsewhere."29
The authors almost (but not quite) asserted that physicians opposed to
abortion would "withhold a diagnosis," "delay access," "misdirect women,"
and "provide punitive treatment." They inserted, in the midst of this list,
the imaginary offence of "failing to provide appropriate referrals:"
imaginary, because, as noted above, the Canadian Medical Association did not
require referral for abortion, and none of the cases that had been proposed
by some of the authors' like-minded colleagues supported such a claim.30 Nonetheless,
they insisted that refusal to refer for abortion constituted malpractice and
could lead to "lawsuits and disciplinary proceedings."
This passage accomplished three remarkable things, all in one breath: it
subtly impugned the integrity of objecting physicians; it associated
conscientious objection with "punitive treatment" and other unethical
practices; and it enveloped conscientious objection to abortion in an
atmosphere of menace. It was a masterful symphony of accusatory innuendo,
contrived connections, and strategic omissions. An unprepared reader might
have overlooked the lyrical niceties, but the melody - "thou shalt refer or
else" - was unmistakable.
The editorial triggered a flood of letters from protesting physicians and
other concerned correspondents, but the authors did not retreat from their
position, insisting that a "duty to refer" could be derived from the CMA
Code of Ethics and Policy on Induced Abortion - a tendentious argument at
best, dependent upon their peculiar interpretation of the documents.31
Dr. Jeff Blackmer, CMA Director of Ethics, reaffirmed Association policy
that referral was not required,32and the
CMAJ declared the subject closed..
The negative response to the editorial from the medical profession
convinced Professor Downie that policy reform by the CMA was unlikely, so
she turned her attention to provincial regulatory authorities to persuade
them to use the law to force the medical profession to conform to her
expectations.33
In a 2008 interview, Dr. Bonnie Cham, Chair of the CMA Ethics Committee,
noted that the CMA had considered freedom of conscience in health care,
"including the impact of offering and not offering abortion services." She
reaffirmed the organization's support for "the identifiable minority" of
physicians who do not agree with abortion, and observed that there is still
"a minority who would not refer" for abortion.34
A 2003 annotation of the CMA Code of Ethics for the Canadian
Psychiatric Association offered the following comment (referring to the 1990
wording of the Code):
Section 16 is the latest version of the CMA's
statement on personal morality. The difficulties which arose with the
previous statement are attributable to the failure to recognize that a
physician's moral beliefs are paramount. A code of ethics can never require
someone to carry out what he believes to be an immoral act.35
Notes
1.
Canadian Medical Association Code of Ethics (1965) Transcribed
from the original by
A. Keith W. Brownell MD, FRCPC and Elizabeth "Libby"
Brownell RN, BA (April 2001)Accessed 2014-02-22
2.
The Physician and the Liberal Society: Understanding in Winnipeg.
Association News, CMAJ July 18, 1970, Vol. 103, p. 195.
3. Canadian Medical Association
Code of Ethics
(1970) Transcribed from the original by
A. Keith W. Brownell MD,
FRCPC and Elizabeth "Libby" Brownell RN, BA (April 2001)
4. The number of abortions increased from
11,152 in 1970 to almost 39,000 in 1971, an increase from a rate of 3.0 to
8.3 per 100 live births. [Therapeutic
abortion: government figures show big increase in ‘71. CMAJ May 20,
1972, Vol. 106, 1131] By 1975 the rate was 13.8/100. [J.B.S.
1975 abortion report more informative than its predecessors. CMAJ,
October 22, 1977, Vol. 117, 933] CMA President Bette Stephenson stated that
the CMA was concerned about the abortion rate and "most disturbed . . . that
even more abortions are being performed . . .than are indicated in the
alarming figures released by Statistics Canada." [Stephenson B.
Abortion:
an open letter. CMAJ, 22 February, 1975, Vol. 112, 492-507.] In
1976 there were about 54,500 abortions (14.9/100 live births). [E.M.R.,
1976
advance report on abortion compares statistics with 1975. CMAJ,
January 7, 1978 Vol. 118, 76]
5. Geekie D.A.
Abortion: a review of CMA policy and positions. CMAJ September 7,
1974, Vol. 111, 474-477(Accessed 2014-02-22)
6. Geekie D.A.
Abortion: a review of CMA policy and positions. CMAJ September 7,
1974, Vol. 111, 474-477(Accessed 2014-02-22)
7. Gibbard B.
Letter to the editor. CMAJ, January 7, 1975, Vol. 112, 25
(Accessed 2014-02-22)
8. A letter to the CMAJ in 1977
repudiated the idea. "This view ought to be demolished. It is clear from
nearly any angle that this problem is not simple; it is a complex
social, religious and moral issue. It deeply affects our legal system
and the civil rights of our citizens. Krass M.E.
Letter to the editor. CMAJ, August 6, 1977, Vol. 117,
220-222 (Accessed 2014-02-22)
9. Geekie D.A.,
Alberta medical association annual meeting quiet - by western standards.
CMAJ November 6, 1976 Vol. 115, 908-910 (Accessed 2014-02-22)
10. Protection of Conscience Project,
Bibiliography:
Periodicals, 1970-1974
11. Describing the 1978 Council meeting
that saw provision revert to its former wording, the CMAJ stated: "The
major part of the debate concerned the wording of the paragraph of the
Code of Ethics that deals with personal morality.unlike last year, the
discussion was brief and free of emotion."
Ethics problem reappears. CMAJ, July 8, 1978, Vol. 119, 61-62
(Accessed 2014-02-22)
12. Geekie D.A.
Abortion referral and MD emigration: areas of concern and study for CMA.
CMAJ, January 21, 1978, Vol. 118, 175, 206 (Accessed 2014-02-22)
13.
Quebec City is a lively place, CMA annual meeting delegates discover.
CMAJ July 9, 1977, Vol. 117, 63. (Accessed 2014-02-22)
14. Geekie D.A.
Abortion referral and MD emigration: areas of concern and study for CMA.
CMAJ, January 21, 1978, Vol. 118, 175, 206 (Accessed 2014-02-22)
15. Forster J.M.
Letter to the editor. CMAJ, April 22, 1978, Vol. 118, 888
(Accessed 2014-02-22)
16. Forster J.M.
Letter to the editor. CMAJ, April 22, 1978, Vol. 118, 888
(Accessed 2014-02-22)
17. Shea J.B.
Letter to the editor. CMAJ, April 22, 1978, Vol. 118, 890
(Accessed 2014-02-22)
18. Shea J.B.
Letter to the editor. CMAJ, April 22, 1978, Vol. 118, 890;
Firth S.T.
Letter to the editor. CMAJ, April 22, 1978, Vol. 118, 895
(Accessed 2014-02-22)
19. Firth S.T.
Letter to the editor. CMAJ, April 22, 1978, Vol. 118, 895
(Accessed 2014-02-22)
20.
Ethics problem reappears. CMAJ, July 8, 1978, Vol. 119, 61-62
(Accessed 2014-02-22)
21.
Ethics problem reappears. CMAJ, July 8, 1978, Vol. 119, 61-62
(Accessed 2014-02-22)
22. Canadian Medical Association
Code of Ethics (1978) Transcribed from the original by
A. Keith
W. Brownell MD, FRCPC and Elizabeth "Libby" Brownell RN, BA (April 2001)
23. Telephone conversation between the
Administrator of the Protection of Conscience Project and Dr. W. K., 15
August, 2012.
24. The following parts of the policy statement
are of particular interest with respect to freedom of conscience:
- A physician should not be compelled to participate in the
termination of a pregnancy.
- No patient should be compelled to have a pregnancy terminated.
- A physician whose moral or religious beliefs prevent him or her from
recommending or performing an abortion should inform the patient of this
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
gynecology, and anesthesia.
- No discrimination should be directed against doctors who provide
abortion services.
- Abortion services should meet specific standards in the areas of
informed choice, medical and surgical procedures, nursing and follow-up
care.
Canadian Medical Association Policy:
Induced
abortion. Approved by the CMA Board of Directors, December 15,
1988. (Accessed 2014-02-21)
25. "16. An ethical physician when his personal
morality prevents him from recommending some form of therapy which might
benefit his patient will so acquaint the patient." Canadian Medical
Association
Code of Ethics (1990) Transcribed from the original by
A.
Keith W. Brownell MD, FRCPC and Elizabeth "Libby" Brownell RN, BA (April
2001) (Accessed 2014-02-22)
26. "8. Inform your patient when your
personal morality would influence the recommendation or practice of any
medical procedure that the patient needs or wants." Canadian Medical
Association
Code of Ethics (1996) (Transcribed 10 March, 2001)(Accessed
2014-02-22)
27. "12. Inform your patient when your personal
values would influence the recommendation or practice of any medical
procedure that the patient needs or wants." Canadian Medical Association
Code of
Ethics (2004) (Accessed 2014-02-22)
28. Mackay B.
Sign in office ends
clash between MD's beliefs, patients' requests. CMAJ January 7,
2003 vol. 168 no. 1 (Accessed 2014-02-16)
29. Rodgers S. Downie J.
Abortion: ensuring
access. CMAJ July 4, 2006 vol. 175 no. 1 (Accessed 2014-02-14)
30. Including Zimmer v. Ringrose (1981), 124
Dominion Law Reports (3d) 215 (Alberta Court of Appeal); Zimmer v.
Ringrose (1978), 89 Dominion Law Reports (3d) 657 (Alberta Supreme
Court); McInerney v. MacDonald (1992), 93 Dominion Law Reports
(4th) 415 (Supreme Court of Canada); Malette v. Shulman (1990), 67
DLR (4th) 321 (Ont. Court of Appeal); Nancy B v Hotel Dieu de Quebec
(1992), 86 DLR (4th) 385 (Quebec Superior Court); R. v. Morgentaler
(1988)1 S.C.R 95-96 (Supreme Court of Canada). See Murphy S.
Postscript for the Journal of
Obstetrics and Gynaecology Canada: Morgentaler vs. Professors Cook and
Dickens. Protection of Conscience Project, 25 November, 2005
31. Rodgers S. Downie J.
Access to abortion:
The authors respond. CMAJ February 13, 2007 vol. 176 no. 4 doi:
10.1503/cmaj.1060202 () Accessed 2014-02-23
32. Blackmer J.
Clarification of
the CMA’s position on induced abortion. CMAJ April 24, 2007 vol.
176 no. 9 doi: 10.1503/cmaj.1070035 (Accessed 2014-02-22)
33. "(We decided to proceed by way of these
provincial regulatory bodies rather than the CMA, in part, because of the
negative reaction of the CMA to the Rodgers/Downie editorial, which made
policy reform by the CMA seem unlikely.)" McLeod C, Downie J. "Let
Conscience Be Their Guide? Conscientious Refusals in Health Care."
Bioethics ISSN 0269-9702 (print); 1467-8519 (online)
doi:10.1111/bioe.12075 Volume 28 Number 1 2014 pp ii–iv
34. "10 questions with CMA's ethics champion Dr.
Bonnie Cham." (Questions 6, 9) Medical Post, 25 September, 2008.
35. Mellor C.
The Canadian Medical Association Code of Ethics Annotated for
Psychiatrists. Canadian Psychiatric Association - Position Papers,
p. 4 of 6. Approved by the Board of Directors of the Canadian Psychiatric
Association in October, 1978. (Accessed 2014-02-22)