Commentary on Cecilia Moore's Case
Re:
Worker fired for refusing payment for illegal abortion
British Columbia, Canada: 1985
The following commentary concerns the case of Cecilia Moore, a welfare
worker who was fired for refusing to authorize medical coverage for an
abortion. The case is reported in
Moore v British Columbia [Ministry of Social Services], Canadian
Human Rights Reporter, Vol. 17, Decision 24 (Cited hereinafter as CHRR).
Additional material has been obtained from the
Summary of the Evidence of Cecilia Moore that was prepared for the
hearing (Cited hereinafter as "Summary").
A labour lawyer familiar with the case has noted that the British
Columbia Government Employees Union could have been found liable because it
failed to support Moore. Remedies lie under labour legislation in most
Canadian provinces, and the Union might also have been sued for
discrimination under human rights legislation. However, the issue was not
adjudicated because the case was against the government and did not deal
with the Union's duty of fair representation. (Back to
Contents)
Cecilia Moore was fired in 1985. Two points should be noted, in fairness
to her supervisors. First: they were dealing with an issue for which there
was no precedent in the Ministry. Second: it was only in 1985 that the
Supreme Court of Canada affirmed the legal concept of 'adverse effect
discrimination' (CHRR 49). In deciding Moore's case, the Human Rights
Council had the benefit of this decision, and a of a further clarification
by the Supreme Court in another case five years later (CHRR 50). Thus, at
the time, Moore's supervisors lacked both experience and the subsequently
developed legal framework to assist them in their decision making.
The fact remains that they refused to consider the accommodation
suggested by the union representative, who was also without the benefit of
experience or legal guidance. Moore had repeatedly told Wilmot that she
would refer cases involving conflicts of conscience to her supervisor, and
this would have permitted the kind of simple, common-sense arrangement noted
by the Human Rights Council: "An exemption or reassignment of files could be
undertaken without an increase in the caseloads of other workers by
assigning an equivalent number of files from those caseloads to the
complainant." (CHRR 68)
In fact, by the time of the Tribunal hearing in 1992 it had been
determined that accommodation for conscientious objectors was sometimes
allowed. Over a period of 17 years, Margaret MacLeod, a voucher clerk in the
Ministry's Powell River office, had been exempted on three or four occasions
from signing or mailing documents involving coverage or payments for
abortion. However, the practice does not appear to have been officially
recognized. Moore asserted that she had learned of two other exempted
employees, but noted that they were "afraid to testify for fear of
reprisals." (Summary 28) (Back to Contents)
The Council asserted that, in accepting the file, Moore acted improperly,
and was therefore partly to blame for the chain of events that followed:
In this case, there was an obvious conflict between the client=s
request and the complainant=s strongly held religious beliefs on
abortion. Nevertheless, the complainant met with the client. She
discussed her opposition to abortion with the client and then rendered a
decision that was consistent with her position. From the client=s
perspective, the complainant would not have given the appearance of
being an impartial decision maker. It is my view that voluntary
disqualification would have been the appropriate course of action in
this type of situation. In this case, the complainant did not recognize
her duty as a public servant in this regard. (CHRR 64)
It will presently be seen that this passage includes a statement that is
factually inaccurate. Apart from that, this retrospective criticism presumes
three things; first: that the client was clearly eligible for assistance;
second: that Moore ought to have foreseen that her views on abortion would
conflict with her clear duty to provide medical coverage; third: that her
employer would have been more accommodating had she raised the matter at the
start. Closer examination will demonstrate that these presumptions were not
supported by the evidence. However, one must first affirm three principles
underpinning the Council's view (CHRR 62-63):
members of the public are entitled to impartial and unbiased treatment by
public servants;
public servants are especially obligated to act "in an impartial and
unbiased manner;"
sound public policy favours disclosure of bias or conflicts of interest, and
voluntary disqualification.
What follows, then, while somewhat critical of the approach taken by the
Council, does not mean that voluntary disqualification might not have been
an appropriate response on other grounds. (Back to
Contents)
The Deputy Minister told the Human Rights Tribunal that no policy existed
under the Regulations for funding abortion (CHRR 47), but Ministry had
previously paid for an abortion for the same client seen by Moore (CHRR 39).
Moreover, the Deputy Minister's testimony on this point was inconsistent
with that offered by other officials in the Ministry.
Art Temple, for example, testified that coverage for abortion could be
provided by classifying pregnant women as "unemployable," which made them
eligible for medical coverage. How they subsequently chose to use that
coverage was not the Ministry's business (CHRR 31). Lori Mist, a senior
Ministry official, testified to the same effect. She added that temporary
coverage could also have been granted if the woman insisted that she was
employable but unable to provide her own coverage. Despite the regulation's
reference to an "urgent" need for "an essential medical service" that
required verification by the FAW, Mist claimed that "confirmation of a
specific medical procedure was not required" (CHRR 26). She does not appear
to have explained how an abortion that was deemed medically contra-indicated
could have been interpreted to be "an essential medical service," and the
Council did not address this point in its ruling.
Note also that the 'pro-choice' worker consulted by Moore agreed with
Moore's interpretation of policy in denying coverage, yet 'pro-choice'
supervisor Bill Little took the opposite view. Moreover, Art Temple signed
the authorization in Moore's place (CHRR 31), but he could not explain to
the Council which section of the Regulations he applied when allowing the
appeal (CHRR 32, 57), and he conceded that Moore's interpretation of policy
was technically correct (CHRR 39, 57).
Taken as a whole, the evidence before the Council indicated that coverage
for abortion, while not officially authorized, was nonetheless rationalized
by creative policy interpretation on an ad hoc basis, and
accommodation of conscientious objectors provided for in the same way.
Perhaps this was the result of poor administration; perhaps ambiguity was
thought to be desirable in view of the political and legal issues
surrounding abortion at the time. Whatever the case, this style of
management would naturally generate confusion and conflict among workers who
had not been initiated into the 'winks and nods' system of decision making
exemplified, in particular, by Temple and Little.
Unfortunately, the Council failed to recognize this aspect of the case.
Instead, it appears to have uncritically accepted Lori Mist's assertion that
the client was eligible for coverage, even as it noted inconsistencies in
the evidence on this point (CHRR 56-57. This substantially undercuts the
first presumption underlying the Council's criticism of Moore: clarity of
policy. (Back to Contents)
The Human Rights Council appears to have had the view that Catholic
belief about abortion, expressed, for example, in the Second Vatican
Council's condemnation of abortion as "an abominable crime" (Gaudium et
spes, 51) would automatically place Moore, a Catholic, in conflict with
her job requirements vis-Ã -vis a client seeking financial support for an
abortion. Further, it described this conflict as "obvious."
A different perspective yields a different understanding. Catholic
teaching about abortion does not relieve an employee of legitimate
obligations to an employer or to other people; Christ's injunction requires
that one render to Caesar the things that are Caesar's and to God the things
that are God's. Moore did not know how the Ministry dealt with such requests
when she accepted the file. It would have been premature to disqualify
herself before she had explored the extent to which it was possible for her
to fulfill her obligation to Caesar without compromising her obligation to
God.
One is left with the impression that the Council's second presumption was
grounded in an inadequate understanding of Catholic teaching on faith and
reason. This is not surprising, since religious belief is often viewed by
secular authorities as a kind of irrational prejudice rather than something
capable of intelligent application. Counsel acting for people like Moore
should take this into account in case preparation and presentation. (Back to
Contents)
Had Moore disqualified herself at the outset, the subsequent attitude and
conduct of her supervisors strongly suggest that she would have been
dismissed for refusing to accept the file. And it is by no means clear that
she would have been successful in a civil or human rights action in that
case, since she would not have been able to clearly establish (without
having reviewed the file and the policy) that what was being asked of her
was actually contrary to her faith.
Now, Moore did not analyse the situation in these terms at the time. She
responded as one might expect an inexperienced probationary employee to
respond; she accepted the file without a clear idea of what would be
required of her or what she was going to do. Her surprise and perplexity
were reflected in her spontaneous utterance, "I don't believe in abortion."
But what she subsequently did do - review the Ministry policy and reflect
upon her training - clearly demonstrates a thoughtful and reasonable
approach to the case, consistent with her Catholic faith. (Back to
Contents)
Was it proper for Moore to meet with the client? A distinction must be
made between prudence and propriety. If, having reviewed Caesar's policy,
Moore had grounds to believe that the client would be eligible for
coverage, it would have been improper for her to do so. However, if the
policy clearly indicated ineligibility, Moore could have handled the
case without conflict. As has been noted, Ministry policy was anything but
clear. The only way to determine the issue was to interview the client.
This is not enough to establish that it was prudent for her to
continue with the file. A more experienced worker having the same view on
abortion - especially a permanent employee with union seniority - might well
have anticipated complications, and sought reassignment . On the other hand,
Moore was a probationer, working for a "tough" supervisor, subject to
dismissal without cause during the first three months of her employment, and
honestly trying to do her job to the best of her ability.
The Council's criticism of Moore might have been more balanced had it
recognized the lack of clarity in Ministry policy, understood the practical
application of religious belief, reflected upon the attitude and conduct of
Moore's supervisors, and more carefully considered the position of Moore
herself. (Back to Contents)
Having concluded that Caesar's policy made the client ineligible for
coverage, and having confirmed her conclusion with a more experienced
colleague who did not share her views about abortion, Moore advised the
client of her decision, and of the right to appeal to Caesar. After
doing this, at the end of the interview , Moore explained that her
own views on abortion would have precluded her authorizing coverage even if
policy had allowed it.
The Council magnified the significance of the comment by reversing the
order of events in the wording of its judgement, unfairly implying that
Moore's decision was based on her religious belief rather than Ministry
policy. Actually, Moore's explanation was a spontaneous outburst of honesty
that incidentally confirmed that her decision was made for policy reasons. A
more experienced worker would probably have avoided the comment as being
unnecessary. The Human Rights Council quite rightly noted that Moore's
reference to her own opinion about abortion was likely to compromise the
appearance of impartiality.
But there was no evidence before the Council that Moore actually was
affected by bias or partiality in her dealings with the client. In fact,
there was no evidence before the Council that Moore's religious beliefs were
in play at any point before Temple ordered her to sign the authorization.
This is why the Council had some difficulty in establishing the moment of
adverse impact (CHRR 53), ultimately deciding that it occurred when she was
ordered to sign the document by her supervisor (CHRR 58). (Back to
Contents)
At the time of this incident, all abortions in Canada had to be
pre-authorized by a hospital's therapeutic abortion committee. Such
authorization could be legally granted only when the procedure was necessary
to preserve the life or health of the mother. Thus, the abortion that
Cecilia Moore was ordered to facilitate would have been a prima facie
criminal offence at the time, and Moore made this point in her meeting with
Art Temple (Summary 19). She was actually concerned that signing the
authorization would leave her open to criminal prosecution (Summary 41).
The situation faced by Moore should never have arisen, but it did not
arise by accident. It was a natural consequence of a process described by a
physician who served for years on a therapeutic abortion committee:
. . . not once at committee meetings did I witness discussion as
regards the health merits of a particular case. It was assumed that if
the referring doctor and the woman had decided that the pregnancy would
impair the patients health as she understood it then no further
enquiry was necessary or possible. (Mate, Gabor, "A woman's choice - as
it in fact was under committee". Vancouver Sun, 22 February,
1988. Emphasis added).
In other words, a committee of physicians rubber-stamped every
application received, and, when necessary, like-minded officials in Moore's
department were willing to co-operate, without asking awkward questions.
The Supreme Court of Canada had struck down all restrictions on abortion
four years before the Moore case was heard, and the issue was not raised in
the Council's summation of the evidence, nor in its ruling. Now, it was not
necessary for the Council to consider the state of the criminal law in 1985
in order to adjudicate Moore's complaint, and avoiding the apparent
illegality of the proposed procedure doubtless simplified the issues that it
had to address. What bears notice is that those in positions of authority
and responsibility in the Ministry at the time of the incident were
bound to consider the criminal law - and not one of them - including the
Deputy Minister - appears to have done so.
The Human Rights Council did not make even an obiter comment about
this elastic sense of legal obligation; it is as if the Council considered
such elasticity to have been a necessary adjunct to Gabor Mate's
rubber-stamp committees. One may see in this a quasi-judicial affirmation of
an unofficial praxis intended to circumvent the criminal law.
All of this challenges the notion that euthanasia, assisted suicide, or
other controversial medical procedures like artificial reproduction can be
regulated by professional committees and criminal law; checks and balances
seem inclined to evolve into winks and nods. (Back to
Contents)
It has been suggested that lack of clarity in Ministry policy would
likely generate conflict in the workplace. Granted that such conflict would
probably involve a minority of workers, was there any evidence of this?
Moore reported that she had met over fifty people in different occupations
who had experienced discrimination in their employment as a result of their
views on abortion. "At least half the Ministry cases do not want to
testify," she wrote, "because they are afraid of disciplinary action."
(Summary 44)
Particularly in light of Cecilia Moore's experience, it is difficult to
reconcile this state of affairs with the idea that there is no need for
protection of conscience legislation. (Back to Contents)