Introductory Remarks

On behalf of the Protection of Conscience Project I thank Physicians for Life for honouring the Project with the invitation to come to this forum.

More than that, I thank you for being here. I'll echo Dr. John Patrick's words last night; the good news is here. You have no idea how important you are and how much it means to me to see you.

People of my generation and even my parents' generation have tended to be of the opinion that our society and political institutions are, if not the ultimate expression of the goods that democracy has to offer, at least the next best thing to it. But the oldest modern democracy is only a little over 200 years old. And if you think that slavery is incompatible with true democracy, then true democratic government emerged less than 150 years ago. Finally, if you think that true democracy demands universal adult suffrage, a few of the patients you'll encounter are older than true democracy in Canada.

Perhaps some of your professors or preceptors are as well.

My point is that, in historical terms, modern democracy is still in diapers. We like to think that we're experts in the field, that the rest of the world ought to look to us to see democracy in its most perfect and final form.

But - a question. Is it not possible that, as a nation, we are toddlers who have not yet developed the kind of moral balance demanded by the nature of democratic government? We have an appetite for freedom, to be sure, but what kind of freedom? For what purpose? As CS Lewis observed, the kind of things that citizens in a democracy naturally like are not necessarily the things that will best preserve democracy.¹

What kind of freedom do we seek? For what purpose? You have to seek the answers to those questions, among others.

Now, that obligation falls to every generation. But there are times when that obligation has special significance. I believe that we are living in one of those times. I believe that this obligation has come to you in a special way, all unlooked for, as the ring came to Frodo Baggins, and that, like him, you will be asked to shoulder unexpected burdens, and go off on unexpected adventures.

Are you up for it? I think you are.

Now, to business.

Caveat

First, I want to emphasize that everything I say about the preservation of personal integrity and protection of conscience in health care presumes the kind of caring physician-patient relationship and dialogue that were recommended and modelled for you yesterday by Doctors Reynolds and Genuis.

Next, you should be aware that the Project is not out to restrict or eliminate abortion or anything else. We do not take a position on the objective morality or desirability of a procedure or service. Instead, the Project simply acknowledges that some activities are morally controversial, and argue that people should not be forced to participate in them, or discriminated against because they refuse to do so for reasons of conscience. For this reason, the Project cannot be described as a pro-life initiative, though that is often how it is perceived. It differs in that way from Physicians for Life.

However, like Physicians for Life, the Project is a non-denominational initiative that operates within a secular framework. The Advisory Board includes scholars from different countries, rom Judaeism, Christianity and Islam.

Presentation topics

I am going to touch on some developments especially relevant to freedom of conscience in health care, with a focus on the last two years, and then deal briefly with the positions of Colleges of Physicians and Surgeons in Canada.

A World Tour: 2006 to 2008

So what of the last couple of years?

In January, 2006 the Washington Post reported that debate about freedom of conscience in health care was "gaining new prominence" and "intensifying" in the United States. More than a dozen states were considering protective legislation, and about half that number had drafted laws specifically for pharmacists.²

By the end of 2007, one bioethics site noted that freedom of conscience in healthcare had been "a hot bioethical topic" during the year. It predicted that it would "remain in the spotlight for 2008."³ As everyone here knows, it has certainly been in the spotlight in Ontario, courtesy the Ontario Human Rights Commission and the College of Physicians and Surgeons.⁴ But that controversy is only part of a bigger picture that I hope to outline for you.

You may notice I said the Ontario controversy "is" part of the picture. The spotlight caught the College and the OHRC like deer in the headlights in August and September, but the controversy is far from over. An American observer, Wesley Smith, believes that issues of conscience will "likely . . . become one of the most heated bioethical controversies in the years to come." Just last week, he warned: "Expect the fight over conscience to become a political conflagration."⁵

From a certain perspective, this can be seen as one of those good-news, bad-news stories. The good news is that I am not a medical student or health care professional. The bad news is that you are. You can take that as a feeble attempt at humour, or as the frank opinion of an increasing number of highly influential people.

Won't prescribe contraceptives or facilitate abortion because of your moral or religious view? Then it's bad news that you are medical students. Scum like you - that's the word used by a University of Toronto professor - scum like you, he said, should resign from medicine and find another job.⁶ Resign, and get another job. I've heard that statement, over and over again, often from people reputed to be progressive, tolerant and enlightened citizens of the true north strong and free.

Using a few items from the Breaking News section of the Project site, I'll take you on a quick world tour to see what might have contributed to Wesley Smith's grim prognosis.

First, and most recent: Australia.

Catholic hospitals in the Australian state of Victoria may close as a result of a new law that makes referral for abortion mandatory.⁷

Crossing the Pacific to North America, many of you will have heard about the California case in which a lesbian sued two Christian doctors who refused to artificially inseminate her. What you may not know is that the physicians not only referred her for the treatment, but paid some of the expenses incurred as a result. Her argument is that referral was not good enough because race and sexual inclinations are equivalent. Since physicians cannot refuse to treat kidney disease in a patient because of his race, they cannot refuse to inseminate a woman in a lesbian relationship. Even referral is held to be a violation of human rights.⁸

Here, in Canada, St. Elizabeth's Hospital in Humboldt, Saskatchewan stopped contraceptive tubal ligations because they were contrary to Catholic teaching. Two physicians then resigned in protest.⁹ A woman complained to the provincial Human Rights Commission that denial of tubal ligation was discrimination based on gender and religion. The Saskatchewan Catholic Health Corporation had to pay almost $8,000.00 to settle the complaint.¹⁰ Ultimately, the hospital's Catholic affiliation was ended and control of the hospital was transferred to a regional health authority.¹¹

Across the Atlantic, the opposition to abortion that is a feature of indigenous African culture is in conflict with documents like the Maputo Plan of Action and the Maputo Protocol, all of which are intended to establish abortion (and other things) as legal rights.¹²

Last year, the Committee for the Elimination of Discrimination Against Women (CEDAW) asked Polish representatives "[h]ow many doctors had been suspended or fired because they refused to perform abortions?" The question appeared to reflect an expectation that such practices should be the norm.¹³

In Portugal, abortion up to ten weeks gestation was legalized in 2007.¹⁴ As a result of widespread conscientious objection, the Portuguese Health Minister ordered the Portuguese Medical Association to remove the prohibition of abortion from its code of ethics.¹⁵ He insisted that it was unacceptable for codes of ethics to "go against the general law of the country."¹⁶ The Association eventually deleted direct reference to abortion in the code. The new language affirms that life is the highest value and cannot be interrupted after it begins, but the Association has adopted a neutral position as to when life begins.¹⁷

Just next door, the Spanish Socialist Workers' Party's platform includes plans to restrict freedom of conscience for medical professionals.¹⁸

In northern India a judge gave a deadline to employees of the Medical Health Department to bring ten people in to be sterilized. Catholic teachers were ordered to promote sterilization among their pupils and their families.¹⁹Nurses at a convention in Bangalore reported that they were being forced to pariticpate in abortions, and that some who refused had been forced to resign.²⁰

A young nurse in Pakistan who refused to perform an abortion on two women was gang raped by three men from their families. The Punjab Health Association stated that this was not the first such incident.²¹

Other contexts

As you can see, conflicts of conscience most commonly arise within the context of reproductive health care. But that is hardly the only context.

Belgium. In 2007, the ruling party announced that it would force every hospital in the country to provide euthanasia or to refer patients to facilities that would do so. The party was willing to tolerate conscientious objection by physicians on condition that they refer them for euthanasia provided by more willing colleagues.²² The party was merely following the lead of the Flemish GP's association and the Universities of Ghent and Louvain, which had jointly recommended mandatory referral for euthanasia.²³ By the way, the reasoning in their joint statement precisely parallels the reasoning of preceptors who failed a medical student on an obstetrics rotation because he was unwilling to refer for abortion or the morning after pill.

Several articles in a 2006 number of the Journal of Medical Ethics discuss the use of patients in persistent vegetative states as experimental subjects. Some authors asserted that they would be especially useful in studies of the long-term effects of animal organ transplants.²⁴

What to do if a patient wants a prostitute and isn't able to arrange for one himself? The Douglas hospice in Oxford, England, made the necessary connections. The hospice foundress explained: "It is not our job to make moral decisions for our guests." No paternalism here, to be sure, but certainly the suggestion that a physician who truly respects patient autonomy will help him to find a 'sex trade worker.'²⁵

But what if the patient is urgently in need of the kind of sexual health care provided by prostitutes, and timely access to a prostitute is not possible? What duty of care does the physician owe to the patient in such circumstances? The mantra, "patient centred care" suggests an answer. So, too, does the refer-or-provide-it-yourself model that the establishment favours for other kinds of reproductive health care. That is part of the noble calling of a physician, isn't it? To sacrifice oneself for the good of the patient?²⁶

Responses to contentious services

You will have noticed the frequent reference to "rights" in this whirlwind sampling. It's now time to see something of what lies behind all of this.

People commonly respond to a morally contentious service in one of three ways:

1. The first is to consider it a legitimate medical service without restriction or qualification, like palliative care.

2. The second is to consider it a medical service that is legitimate in some circumstances but not in others.

3. The third is to reject it absolutely, as something that should never be done.

Two of the three possible responses can give rise to conscientious objection by health care personnel. Hence, one ought to heed the advice of the British Medical Journal; when legalization of a contentious medical procedure is contemplated, it would be prudent to first consider how many health care professionals are willing to assist with it.²⁷

Failure to take this advice has consequences, and these consequences have become especially evident in the case of abortion, which we might take as an exemplar of contentious procedures. We have seen what happened in Portugal. Spain has found few physicians willing to perform the procedure.²⁸ That there are not enough physicians willing to provide abortions is a frequent complaint of American abortion rights activists.²⁹

The reluctance of many health care workers to participate is complicated by the fact that many of those who are willing to provide the service in some circumstances are unwilling to do so in others. The response to what they consider late term abortions³⁰ is frequently adverse,³¹ so that women wanting late term abortions may have to travel from one country to another.³² Late term abortions can even lead to resignations³³and threats of legal action.³⁴ Further: gestational age is only one of the factors that can give rise to conscientious objection.³⁵ And even after legalization, opposition to abortion does not necessarily diminish over time.³⁶

Four stage progression

First Point: expectation vs. reality

I suggest that this demonstrates that the British Medical Journal was right. An expectation that medical personnel will provide or facilitate abortions runs up against the fact that a not insignificant number of them - in some circumstances, even a majority - are unwilling to do so for reasons of conscience.
This is the first point I want to draw to your attention: that there is a fundamental conflict between the expectation that health care workers will provide abortions, and the reality that many of them may be unwilling to do so.

Second Point: expectations rise

My second is that this expectation is not static; it tends to rise. It is fuelled by continuing pressure to legalize abortion, liberalize existing abortion laws and expand abortion services, so it is continually colliding with resistance and opposition to abortion, especially in countries that have strong cultural and religious traditions against the practice.³⁷

Third Point: expectation to demand

My third point is that rising expectation that health care workers will provide abortions tends to evolve into a demand that they do so: that they should have no choice in the matter.³⁸
Now, advocates of safe and legal abortion have campaigned for years using slogans like 'freedom of choice.' They describe themselves as 'pro-choice' rather than 'pro-abortion,' and protest vigorously against what they perceive as attempts to 'impose morality.' So one would think that these activists would be among the first to defend freedom of choice for health care workers. In principle, it should not be at all difficult to move from,"If you are against abortion, don't have one," to, "If you are against abortion, don't do one."

Remarkably, this is not the case. What others call "conscience clauses" they call "refusal clauses,"³⁹ "denial clauses"⁴⁰ or "patient abandonment clauses;"⁴¹ conscientious objection, in their view, is "denying access to medical care."⁴² They want all medical students trained in the procedure,⁴³and, at a minimum, demand that health care workers who object to abortion refer patients to someone who will provide the service.⁴⁴They lobby vigorously against freedom of conscience legislation,⁴⁵ and tactics can extend to misrepresenting the ethical and legal obligations of health care workers.⁴⁶ They will even incite complaints against conscientious objectors.⁴⁷

In short, many "pro-choice" activists do not support freedom of choice, unless it is a choice of their choosing. Instead, they contribute substantially to the dynamic by which expectation evolves into demand. Such groups are typically well-funded, well-connected within the professions of health care and law, command the attention of politicians and policy makers, and have a significant impact in the media.⁴⁸ Unfortunately, their views are often supported by state institutions and the media.⁴⁹

Fourth Point: from demand to right

Recall my first point: an expectation that health care workers will provide abortion vs. the reality that many are unwilling to do so.

My second: rising expectation collides with opposition.

Third: rising expectation evolves into demand.

We have not yet done with the progression; there is one more stage. When the demand is resisted - as it continues to be - demand evolves into a claim of rights.⁵⁰

I am not now talking about the earliest use of rights language. When the National Association for the Repeal of Abortion Laws opened its doors in the United States in 1969, the claim that abortion was a right was directed only at the repeal of laws against abortion, so that women would be free to seek abortions and physicians free to provide them.⁵¹ At that time there were repeated assurances that "nobody would be forcing abortion procedures on anyone else."⁵²

I am not now talking about "rights language" from this early period, but about current claims of rights that, contrary to early activist promises, are meant to force health care workers and institutions to provide or at least facilitate abortions. One of the most important 'movers and shakers' in this field is the Center for Reproductive Rights,⁵³ an American advocacy group described in internal documents as an organization "comprised largely of economically advantaged white women."⁵⁴

Center for Reproductive Rights

Actually, as the name of the Center implies, current rights claims involve more than abortion; the Center's agenda includes, among other things, the legal enforcement of what it describes as inalienable sexual rights.⁵⁵ In this it is allied with the International Planned Parenthood Federation, which recently issued a declaration on sexual rights.⁵⁶

The ultimate goal of the Center, Planned Parenthood and their allies is to establish what the Center calls "hard norms" - treaty-based international laws⁵⁷ - that recognize access to abortion as a fundamental human right.⁵⁸ It plans to develop a "culture of enforcement" that will compel governments to respect this 'right'⁵⁹ and enforce it against third parties - you.⁶⁰ Even as it works toward this end, it is cultivating "soft norms" in the form of statements by international, regional, and intergovernmental bodies.⁶¹

Should the Center be successful it acknowledges that it will have effected "profound social change."⁶² It will also have destroyed almost all hope of respect for freedom of conscience in health care. For if refusal to facilitate abortion were to become, in law, an offence like racial discrimination, conscientious objection would be prohibited, just as racial discrimination is now prohibited.⁶³

Since the stakes are so high, I want to draw your attention to some key features of the Center's strategy, notably its focus on securing a following among social, political, academic and professional elites.⁶⁴ The medical profession is one of the "key sectors" that figures prominently in this strategy;⁶⁵ so, too, does the legal community.⁶⁶ The approach is summed up in a question ,"How can we influence the people who influence the legal landscape around reproductive rights?"⁶⁷

The courtship of the elites occurs in academic, professional and bureaucratic communities, largely out of the public eye, thus avoiding what one memo calls "nasty opposition."⁶⁸ This is especially important if professionals and academics may be more sympathetic to the CRR agenda than ordinary people.⁶⁹ An internal memo values the "stealth quality to the work," through which the Center achieves "incremental recognition of values without a huge amount of scrutiny from the opposition."⁷⁰

Despite an admission that a 'right' to abortion cannot be found in existing international instruments, the Center and its allies argue that it is implicit in other internationally recognized rights, such as the right to life, liberty and security, and rights to privacy and freedom from discrimination.⁷¹ They hope to secure "hard norms" by having binding treaties or protocols interpreted in this way,⁷² in the expectation that other adjudicators will find such rulings persuasive.⁷³

The Center's cultivation of "soft norms" is a very similar process, but takes place not only in adjudicative bodies but in international conferences that produce non-binding but persuasive opinions.⁷⁴ As "soft norms" quietly accumulate it becomes easier for the Center to claim that they represent an emerging consensus that should be codified in binding "hard norms."⁷⁵ The development of "soft norms" is of great moment for freedom of conscience in health care because they will likely have the most immediate impact on conscientious objectors.

Professional associations, educational and regulatory authorities and influential individuals can support the CRR's work by developing "soft norms" closer to home. Colleagues, academics, med school professors and preceptors will argue that the provision of abortion or, at least, referral for abortion, is an expected or even legally required standard of care.⁷⁶ Ethicists and professional journals not infrequently express opinions hostile to freedom of conscience,⁷⁷as do individual health care practitioners.⁷⁸

If such claims are repeated often enough by influential persons - even if the claims are false or exaggerated - they gradually assume the character of a new norm. This new norm will be implemented by the disciplinary apparatus of self-governing professions as a standard of care: first, by pressure, in the form of pointed suggestions, informal cautions and official guidance. Many objectors, fearing more serious consequences, may be reluctant to dispute or resist. Medical students are most vulnerable to this kind of pressure.

Eventually, an objector will be charged for professional misconduct.⁷⁹It is quite likely that members of the professional tribunal hearing the case will, by that time, have already been convinced of the new rights-based standard of care, or will have been prepared to accept the claims of experts called to testify to it. Should they ratify it by ruling against the objector they will create a new "soft norm" that the CRR can use in other fora in its continuing quest for international "hard norms."

What can be done?

Well, what can be done about this?

I suggest three things: resist, counter and protest.

Resist pressure to conform to expectations that contradict your fundamental beliefs. This implies that you must know what you believe, why you believe it, and what practical implications flow from it. For example: if you refuse to prescribe contraceptives to unmarried patients, you must be prepared to explain what you mean by "married." Christian marriage? Religious marriage? Non-religious marriage? Marriage before a marriage commissioner? Common law marriage?

Resist, and counter.

Counter the pressure. This implies that you must understand the arguments being made against your position, and that you can respond with arguments that make a plausible case for accommodating it.

Resist, counter and protest.

Protest the pressure. Speak out. Write letters. Use petitions. Make submissions. The strategy employed by the Center and its allies depends, to a significant degree, on creating the false impression that there is a 'soft norm' supported by a consensus among People Who Matter. Use every opportunity to demonstrate that no such consensus exists.

As an example of what can be done, and of the kind of work the Project does to support you, I will close with an extract from the submission to the College of Physicians and Surgeons of Ontario. But first, Colleges of Physicians in Canada.

Policies of Canadian Colleges of Physicians

As I remarked last night, even Henry Morgentaler supports freedom of conscience for physicians with respect to actually performing abortion,⁸⁰ so you won't find any of the Colleges requiring that. Their attitudes are conveniently demonstrated by their policies on referral.

The Project has corresponded with Colleges of Physicians in British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, New Brunswick and Nova Scotia on issues relevant to freedom of conscience for physicians. We have been unsuccessful in engaging Colleges in Prince Edward Island and Newfoundland, and cannot correspond with Quebec authorities because what French I have would only be useful in starting a fight in a bar.

Briefly, only Quebec and Nova Scotia require objecting physicians to facilitate or refer for procedures to which they object for reasons of conscience. The situation in Quebec may be influenced by civil jurisprudence that is based on the Code Napoleon rather than common law. The referral requirement in Nova Scotia was set out in a bulletin that predated the adoption of the Canadian Medical Association's Code of Ethics by the Nova Scotia College. Since the CMA position on referral - that it is not required⁸¹ - is not set out in the CMA Code, it would be useful to seek clarification of the College's present position. For this purpose, it would be helpful if a medical student or physician in Nova Scotia were to write to the College, or ask that the Project do so on his behalf.

Project Submission

Returning to the advice to resist, counter and protest, what follows is an example of the work done by the Project, in the form of an extract from the Project submission to the College of Physicians and Surgeons of Ontario.

• IV.1 to IV.5 The integrity of the human person.
• IV.6 to IV.12 The dignity and inviolability of the human person.
• IV.13 to IV.17 Human Dignity and freedom of conscience

Notes