Sean Murphy*

Preface

Thank you for the invitation to make this presentation on behalf of the Protection of Conscience Project.

Rather than use our time to talk about the Project, I have made background information and materials available in the display. After the presentation, I can answer questions or speak privately with people who would like to know more.

The presentation today is about therapeutic homicide and suicide in Canada. More specifically it is about expectations of collaboration, conscription of health care workers, and ongoing attempts to compel participation in morally contested services.

Introduction

Abortion

To introduce the subject I am going to review Canada's legalization of abortion and its impact on freedom of conscience and religion.

Abortion law reform

In Canada in the mid-1960's, abortion law reform activists frequently portrayed themselves as champions of freedom of conscience.1,2,3 Abortion, they said, was a matter of "individual conscience,"and "Nobody would be forcing abortion procedures on anybody else."4,5 The law, they said, would allow those opposed to abortion "to follow their conscience."6,7 This kind of high-sounding rhetoric was very reassuring.

In 1969 the federal government amended the Criminal Code. Abortion remained a criminal offence, unless a hospital therapeutic abortion committee certified, in advance, that continuing the pregnancy would endanger the life or health of the mother. Abortions had to be performed by a physician in an accredited hospital.8

Protection of conscience

During debate on the Criminal Code amendment, a protection of conscience clause was proposed.9 Justice Minister John Turner responded that the bill imposed no duty on hospitals to set up committees, and no duty on doctors to provide or even apply for abortions. He also claimed that including a conscience clause would trespass in provincial constitutional jurisdiction, since provinces regulate health care professions and institutions.10

This is a key point in Canadian constitutional law. Criminal law is within federal jurisdiction. Health law is within provincial jurisdiction.

The protection of conscience clause was rejected and the bill passed.

Revision of the CMA Code of Ethics (1970)

In revising its Code of Ethics11 to accommodate the new abortion law, the Canadian Medical Association (CMA) instructed objecting physicians to disclose their beliefs to patients, so that patients might consult other physicians. The Association insisted that no health care personnel should be required to participate in abortion.12,13

Abortion and freedom of conscience

As soon as the new abortion law went into effect, the number of abortions increased exponentially, from under 300 in eleven years to more than 11,000 in the first year.14,15 By 1974 it had become clear that most abortions were being performed for "non-medical - social, psycho-social or socioeconomic - reasons."16 Dramatic yearly increases in abortion rates continued for a decade.17,18,19,20

Promises of tolerance and respect for freedom of conscience, made to secure passage of the new abortion law, often proved worthless after the law had passed.

One provincial health minister said that "all hospitals which ban abortions on religious grounds may be forced to change their policies."21 Between 1970 and 1974 there were repeated calls that all publicly funded hospitals - or all hospitals - must be made to perform abortions.22 By 1977, forty per cent of objecting hospital employees had been compelled to participate in the procedure.23

CMA controversy re: Code of Ethics (1977-78)

It was in this environment that the CMA revised its Code of Ethics in 1977 by adding a requirement that objecting physicians must "advise the patient of other sources of assistance."24,25 This was widely understood to mean referral, and a serious controversy erupted.24,26,27,28,29,30 The requirement was removed and the original wording restored the following year.31,32 We will return to the issue of referral presently.

Quebec and abortion

Dr. Henry Morgentaler of Quebec became Canada's foremost abortion activist. He was repeatedly charged for defying the law, but repeatedly acquitted in jury trials. In 1976, Quebec's newly elected Parti Quebecois government declared that, despite the Criminal Code, no Quebec physicians would henceforth be charged for providing abortion.33

This is another lesson in Canadian constitutional law. The federal government in Canada makes criminal law, but enforcing it is the responsibility of provincial governments. By guaranteeing Quebec physicians immunity from prosecution for providing abortions, Quebec's Attorney General effectively legalized abortion on demand in the province.

What did the federal government do in response?

Nothing. It is possible that the government was not displeased with the situation, and abortion is a hot political potato.34 Moreover, the Parti Quebecois is an officially separatist party. Separatists want Quebec to secede from Canada and become an independent French speaking country. This was a major concern for the federal government. It was unwilling to encourage separatist sentiments by picking a fight with the newly elected separatist government on an already volatile issue.

R v. Morgentaler

1982 saw the proclamation of the Canadian Charter of Rights and Freedoms, usually referred to as "the Charter." The Charter is Canada's equivalent of your Bill of Rights. This proved to be the beginning of the end for Canada's abortion law. In 1988, the Supreme Court of Canada applied the Charter to strike down the abortion law.35 Canada has been without any legal restrictions on abortion ever since. Regina vs. Morgentaler is Canada's equivalent of your Roe v. Wade.

Post-Morgentaler era (1988)

After the Morgentaler decision the Canadian Medical Association reaffirmed its longstanding policy; objecting physicians should not be required to participate in abortion, but should disclose their views to patients, so that patients might consult other physicians.36 It also rejected discrimination against both objecting or non-objecting physicians.

However, the Charter of Rights and the Morgentaler decision changed the legal, political and social landscape. Since 1988, Canadian pro-abortion activists have claimed that the Morgentaler decision made access to abortion a constitutional right. This claim is not supported by the text of the ruling, but it continues to have powerful rhetorical force.
Objecting health care workers, particularly nurses, continued to face discrimination and harassment before and after Morgentaler.37,38,39,40,41 At least one major maternity hospital in Canada refuses to hire qualified maternity nurses who refuse to assist with abortions, including post-viability abortions.42

There is one further point. Canadians are guaranteed universal access to medically required services by Medicare, Canada's state-run health insurance system.43 Since 1969, most legal abortions in Canada have been paid for or at least subsidized by taxpayers.44 As a result, objecting physicians and health care providers face an entrenched attitude of entitlement.
Since "we all pay for this medical system to receive services," said one of Canada's chief medical regulators, "if a citizen or taxpayer goes to access those services and they are blocked from receiving legitimate services by a physician, we don't feel that's acceptable."45

Now, I should not be understood to be taking sides in controversies about American health insurance policy. What I am describing is not a necessary consequence of adopting a state-run health insurance system. It indicates only that it is a possible consequence, and that it is an important factor in disputes about freedom of conscience and religion in health care in Canada.

The issue of referral

We return now to the issue of referral.

Since all abortions are legal and normally tax-paid, any patient can ask any physician to provide or arrange for an abortion, and nothing prevents any physician from doing so immediately - except medical judgement or moral convictions. After Morgentaler, the activist spotlight shone on this point with increasing intensity.

Activists do not usually demand that unwilling physicians be forced to perform abortions. Instead, they insist that objecting physicians must help the patient find a colleague willing to do so: that they must refer patients for abortion.

However, many objecting physicians believe that referral makes them collaborators in what they believe to be an immoral act, just as giving a gun to a robber would make one a collaborator in a bank robbery.

CMA reaffirms referral policy (2006)

The issue of referral has been constantly simmering since at least the mid-1970's. It came to a boil in 2006, when two law professors claimed that refusal to refer for abortion was malpractice that could lead to "lawsuits and disciplinary proceedings."46

A flood of protests followed.47,48,49,50 Once more, the CMA affirmed the policy that referral was not required. However, the Director of Ethics added that, upon request, an objecting physician should indicate where a referral might be obtained, so as not to delay abortions.51 We will see that this did not satisfy those who, by this time, had taken to calling themselves "reproductive rights" activists.

From abortion to euthanasia

Developments leading to the legalization of euthanasia and assisted suicide occurred while all of this was going on. Now we move from therapeutic abortion to therapeutic homicide and suicide, and I'll begin to connect the dots.

Background

Euthanasia: Rodriguez (1993)

Sue Rodriguez had amyotrophic lateral sclerosis ("ALS" or "Lou Gehrig's Disease"). In 1993 she asked the courts to authorize a physician to assist her in suicide. The Supreme Court of Canada rejected her claim and upheld the law.52 Chief Justice Antonio Lamer was one of the dissenting minority who supported Rodriguez' application.

Jocelyn Downie (1993-2008)

One of his clerks was a young lawyer named Jocelyn Downie.53 She became a leading euthanasia advocate,54,55,56 but also had other interests. Recall that, in 2006, two law professors threatened objecting physicians with malpractice suits if they refused to refer for abortion. Jocelyn Downie was one of those professors.

Conscience Research Group (2009)

In 2009, Professor Downie and others formed the Conscience Research Group.57 They planned to convince medical regulators to force physicians to refer for "reproductive health" services - contraception, abortion and so forth.58 Only the province of Quebec then had such a policy.

Royal Society Panel (2009-2011)

Two members of the Conscience Research Group, including Professor Downie,59 - were appointed to a Royal Society panel of experts stacked with euthanasia advocates.60,61,62,63,64,65 The panel eventually recommended legalization of assisted suicide and euthanasia.66,67

The experts also insisted that health care professionals unwilling to kill patients or help them commit suicide must refer them to someone willing to do so (of course, they used more genteel language).68 This was justified, they said, because it was agreed that objectors are obliged to refer for "reproductive health services."69 This was a false claim, and Professor Downie, at least, must have known that.

Carter v. Canada (2011-2012)

While the Conscience Research Group and Royal Society experts were busy, the British Columbia Civil Liberties Association and others filed what became the landmark case of Carter v. Canada (Attorney General).70

The plaintiffs specifically wanted physician assisted suicide and physician administered euthanasia because, they said, these were medical treatments. Medical treatments, they said, fell under provincial health care jurisdiction, and could not be prohibited by the Criminal Code. And they wanted euthanasia and assisted suicide for any grievously and irremediably ill patient - not just for the terminally ill. Jocelyn Downie helped prepare their expert witnesses.71

In June, 2012, a British Columbia Supreme Court judge ruled that physicians must be allowed to provide assisted suicide and euthanasia, essentially on the terms sought by the plaintiffs.72 The ruling was appealed, and the case began the journey to the Supreme Court of Canada.

Euthanasia, assisted suicide and freedom of conscience

Canadian Medical Association (2013)

When the Canadian Medical Association met in the summer of 2013, the Carter case was under appeal, and the government of Quebec had introduced its own provincial euthanasia bill. However, the CMA was officially against physician participation in either assisted suicide or euthanasia.73 Following a contentious debate, delegates passed a resolution supporting physician conscientious objection to the procedures.74

Conscience Research Group policy (2013-2014)

In the fall of 2013, Jocelyn Downie and two members of the Conscience Research group published a Model Conscientious Objection Policy for provincial Colleges of Physicians and Surgeons (Canada's medical regulators).75 The model policy demands that physicians who refuse to provide legal, publicly funded services must "make a timely referral" to someone "willing and able to accept the patient and provide the service." If that is not possible, objecting physicians must provide the services themselves. Clearly, this would apply not only to abortion, but to any legal morally contested procedure. The draft policy was presented to a group including officials from four provincial Colleges of Physicians and Surgeons.76

Crusade against objecting physicians (2014)

Now, to illustrate the impact this kind of policy would have on freedom of conscience and religion, consider what happened in Ottawa in the spring of 2014.

A 25 year old woman went to an Ottawa walk-in clinic for a birth control prescription. The physician on duty did not prescribe or refer for contraceptives. The receptionist gave the woman a letter explaining this. The woman obtained the prescription at a clinic two minutes away and posted the letter on Facebook. A venomous feeding frenzy erupted, sparking a witch hunt. Two more NFP only physicians - both Catholics - were discovered lurking in the nation's capital.77

News that three out of 4,000 area physicians did not prescribe The Pill made headlines. It was front page news and a public scandal that three Ottawa physicians would not recommend, facilitate or do what they believed to be immoral, unethical, or harmful.78 A Medical Post reporter expressed doubt that this was even legal.79 It eventually became the subject of a province-wide CBC Radio programme.80

This was a wildly disproportionate response to news that a young woman had to drive around the block to get birth control pills.

Had the Conscience Research Group's Model Policy been in place, the three physicians would also have been disciplined for professional misconduct, ordered to do what they found morally objectionable and contrary to their medical judgement, and dismissed from the profession if they refused.

And that is exactly what the Model Policy would require if euthanasia and assisted suicide were legal and, if instead of The Pill, the patient wanted a lethal injection or lethal prescription.81,82
Quebec euthanasia law (2014)

As the crusade against the Ottawa physicians came to an end, the Quebec government passed a euthanasia law. It declares that eligible patients have a right to "end-of life-care" - including euthanasia. It authorizes euthanasia by physicians, but not assisted suicide.83
Hospices can refuse to permit or provide euthanasia on their premises,84 a concession granted to ensure passage of the bill. An objecting physician who refuses a patient request must notify a designated administrator, who must then find a willing provider.85 However, the law also states that objectors must "ensure that continuity of care is provided. . . in accordance with their Code of Ethics."86 This, in Quebec, requires referral to a willing provider.87,88

Euthanasia under the terms of the Quebec law amounted to first degree murder, but - as in 1976 with respect to abortion - the provincial attorney general promised immunity from prosecution. As in 1976, the federal government did not intervene.

The law did not take effect until December, 2015. This was not only long after the expected ruling by the Supreme Court, but also after the next federal election. It made legal and political sense to take no action at least until after the Supreme Court had ruled in Carter.
CMA approves euthanasia/assisted suicide (2014)

Now we turn to changes in Canadian Medical Association policy on euthanasia and assisted suicide. It appears that, during the first half of 2014, the CMA Board of Directors decided that the Association should reverse its policy and support legalization of the procedures.89,90,91,92,93,94,95

However, the Directors did not put this to the delegates at the Annual General Council in August, 2014. Instead, they proposed a policy of neutrality: that the CMA should neither prohibit nor approve "physician assisted death," but allow physicians to "follow their conscience" on the issue.96,97

On the face of it, this committed the CMA to impartially defend both objecting and non-objecting physicians - nothing more. On the other hand, voting against it would have been a vote against freedom of conscience. It is not surprising that the motion passed by a margin of over 90%.

At the Supreme Court of Canada in the fall, the CMA insisted that "no physician should be compelled to participate in or provide" euthanasia or assisted suicide, and that the law should protect both objecting and non-objecting physicians. It did not argue for or against legalizing the procedures, but assured the Court that its policy against physician participation would be changed.98

When the Directors changed the policy in December, however, notwithstanding their appeal to neutrality at the Annual General Council, they did not adopt a neutral position. Instead, subject to the decision of the Supreme Court, they formally approved physician assisted suicide and euthanasia as "end of life care," and not just for the terminally ill or those with uncontrollable pain. Moreover, they did not exclude euthanasia for minors, the incompetent or the mentally ill.99 Finally, they deleted cautionary statements that remained valid when the policy was revised.100

The policy supports physician freedom of conscience with respect to providing or participating in the procedures. However, this is qualified by the assertion that there should be no "undue delay" in providing them. Thus, the policy tacitly makes freedom of conscience for objecting physicians conditional upon timely patient access to the treatments.

The policy change was announced more than a month before the Supreme Court of Canada ruled in Carter - probably with the not unreasonable expectation that the judges would read it before the ruling101 - which they did.102 By doing all of this, the Board of Directors effectively wrote a blank cheque for the Supreme Court to legalize euthanasia and assisted suicide on any terms acceptable to the judges.

Ontario and Saskatchewan

Before we turn to the Supreme Court of Canada decision in Carter, we have to catch up on other important developments.

College of Physicians and Surgeons of Ontario (2008-2015)

The first concerns the College of Physicians and Surgeons of Ontario (CPSO). The CPSO is a regulator like the Oregon Medical Board. In 2008, the CPSO drafted a human rights policy demanding that physicians set aside their personal beliefs in providing medical care.103,104,105,106 A tidal wave of protest forced the College to back down.107,108,109
Fast forward from 2008 to 2013. The Conscience Research Group made its pitch for mandatory referral to medical regulators, including the CPSO policy manager.110 In 2014, the Group's model policy was discussed by CPSO registrar with colleagues,111 the Ontario College conducted what appears to have been a sham public consultation.112 It ultimately enacted a new policy to force objecting physicians to make an "effective referral" for services they refuse to provide.113

The great majority of almost 16,000 submissions had opposed this,114 but College officials wrote the final version of a new policy nine days before the consultation closed, and nine days before 80% of the submissions had been received.115 Apparently to ensure the policy would pass, they included a disclaimer that it would not apply to euthanasia or assisted suicide. This was a strategic concession that lasted less than a year.

College of Physicians and Surgeons of Saskatchewan (2015)

While this was happening in Ontario, the College of Physicians and Surgeons of Saskatchewan was considering a virtual clone of the Conscience Research Group model policy.116 It had been proposed by the Associate Registrar, who wanted all medical regulators to adopt it.117 He acknowledged that effective referral would be required not just for "birth control and abortion" but for assisted suicide as well, admitting that doctors could be disciplined or dismissed if they refused.118 Following nine months of controversy, a less problematic and somewhat ambiguous policy was adopted - with the disclaimer that it does not apply to euthanasia and assisted suicide.

Supreme Court rules in Carter (February, 2015)

Now, at last, we come to the decision of the Supreme Court of Canada in Carter, announced on 6 February, 2015. The nine judges unanimously ruled that physicians should be allowed to provide euthanasia or assisted suicide in some circumstances.119 They suspended the ruling for a year to give governments and the medical profession a chance to enact new laws and regulations.

However, the federal government seems to have done nothing for five months. It appointed a three member panel in July,120 but promptly called a federal election, thus delaying panel consultations until late October. In the absence of action by the federal government, others took the initiative.

The Canadian Medical Association approved a procedural framework for euthanasia and assisted suicide. This included a protection of conscience provision acceptable to groups representing objecting physicians.121

Provincial-Territorial Expert Advisory Group

At about the same time, a nine member Expert Advisory Group was formed under the auspices of the Ontario government.122 Jocelyn Downie was one of the expert group members,123 one of at least three who supported mandatory referral for morally contested services.124,125

Recommendations

The experts made a number of recommendations to broaden and maximize the impact of the Carter ruling. I leave those aside to focus on freedom of conscience.

1) Institutions: The Experts said that all health care and residential facilities like nursing, retirement and group homes, should be forced to allow euthanasia and assisted suicide on their premises, or to arrange for it elsewhere. They wanted no exceptions for private and faith-based institutions. They even wanted the state to prohibit people from establishing private facilities to avoid the requirement.

2) They recommended that physicians unwilling to kill their patients or help them commit suicide be forced to make an effective referral or direct transfer of care to someone who would. Alternatively, they should be forced to connect the patient to a publicly-funded system modelled on existing organ transplant networks.

The idea is simple. Physicians now enroll patients in systems that deliver hearts to save their lives, so physicians should be required to enroll patients in systems that deliver lethal injections to end them.

Quebec and Ontario

By the time the Experts made their report, the Conservatives had lost the federal election to the Liberals. Since it was unlikely the new government could enact a new law before the deadline set by the Supreme Court, Colleges of Physicians began to draft policies to guide physicians in the interim.

Quebec euthanasia law

Quebec was ahead of the game. Its euthanasia law came into effect in December last year. By that time the Quebec Health Minister was demanding that all palliative care homes provide euthanasia - even though the law allows them to refuse.126 Recall the pattern encountered in the legalization of abortion. Promise freedom of conscience to change the law, then break the promise after the law changes.

CPSO (2016)

We see the same pattern in Ontario. Nine months after saying that the mandatory effective referral policy would not apply to euthanasia or assisted suicide, the College of Physicians and Surgeons decided that it would.127 The decision was made a month before the College began the public consultation about the proposal.128 Once more, the policy met with overwhelming opposition, which, once more, the College ignored. In January, 2016, it officially approved the mandatory referral policy it had decided to impose almost three months earlier.129

Supreme Court grants extension

At about the same time, the Supreme Court granted the new Liberal government a further four months to enact a new law. However, during that time it also allowed euthanasia to proceed in Quebec under its law, and authorized superior courts elsewhere to grant euthanasia or assisted suicide requests in accordance with the Carter ruling.130

The first Quebec euthanasia cases were reported the day the extension was granted.131 The first judicially authorized euthanasia case occurred at the end of February in Vancouver. The practitioner was one of British Columbia's most prominent abortion providers,132,133 who considers providing euthanasia consistent with her "pro-choice" philosophy.134

Federal committees

After the Supreme Court granted the extension, a Special Joint Committee of the House of Commons and Senate held hearings and received written submissions. I will mention here remarks by only two witnesses: Dr. Jeff Blackmer, representing the Canadian Medical Association, and Dr. Gus Grant, Registrar of the College of Physicians and Surgeons of Nova Scotia.

Dr. Blackmer reminded the Committee that no jurisdiction that permits euthanasia or assisted suicide requires effective referral by objecting physicians, yet access to the services is not a problem. He guaranteed that access would not be a problem in Canada, since only "a very small percentage" of physicians find referral "categorically, morally unacceptable," and about 24,000 physicians were willing to participate.135

 Notice that this is a purely pragmatic argument; freedom of conscience should be accommodated because access will not be a problem.

Dr. Gus Grant disagreed, calling Dr. Blackmer's argument "naive." Explicitly referring to conscientious objection to abortion and contraception, he complained that objecting physicians often "choose not to assist women to access  a legal and medical service that runs counter to their personal beliefs."

Dr. Grant made clear his support for a uniform policy on conscientious objection across the country.136 Not coincidentally, he was one of the college officials to whom the Conscience Research Group pitched their Model Conscientious Objection Policy three years before.137
Ultimately, the Special Joint Committee recommended that,"at a minimum," a policy of effective referral be imposed upon objecting physicians. It also recommended that all publicly funded facilities, including denominational institutions, be compelled to provide euthansia and assisted suicide: not merely to allow it or arrange for it to be done elsewhere.138

The new law

The euthanasia/assisted suicide bill introduced by the government in mid-April became law in mid-June. In brief, the Criminal Code now provides exceptions to the law against murder and assisted suicide for physicians and nurse practitioners, as it once provided exceptions to the law against abortion.139 It includes a single substantive statement about freedom of conscience:

241.2(9) For greater certainty, nothing in this section compels an individual to provide or assist in providing medical assistance in dying.

This, of course, is really no more than what Justice Minister John Turner said about the abortion law in 1969.

Euthanasia and assisted suicide in Canada

Well, setting aside freedom of conscience for the moment, what is Canada's law on euthanasia and assisted suicide?

We actually have three: the Supreme Court ruling in Carter, the Quebec euthanasia law, and the Criminal Code. The only thing that everyone agrees upon is that the Carter ruling is the standard that other laws have to meet, so we'll start with that.

Criteria for euthanasia/assisted suicide

Carter:

The Carter ruling requires that physicians be allowed to provide euthanasia or assisted suicide
• for competent adults who clearly consent,
• and who have a grievous and irremediable medical condition,
• including illness, disease, or disability,
• that causes enduring and intolerable physical or psychological suffering
• that cannot be relieved by means acceptable to the individual.

The Court did not rule out allowing this in other situations. That will have to be decided by Parliament or by further litigation.140

Quebec:

The Quebec law is more restrictive than Carter because

• it allows only euthanasia,
• and only for someone "at the end of life"141
• who is in an "advanced state of irreversible decline in capability."142

Otherwise, it is essentially the same as Carter.

Criminal Code:

The Criminal Code is more permissive than Carter in one respect. It allows both physicians and nurse practitioners to provide the services.

It is more specific than Carter because it requires that candidates be at least 18 years old. This is consistent with Carter's requirement that they be adults.

Candidates must also be eligible for government health insurance, a provision intended to prevent suicide tourism. The Court was silent on this issue.

However, the Criminal Code adds three criteria not found in Carter.

• First: the illness, disease or disability must be "incurable."

• Second: the candidate must be "in an advanced state of irreversible decline in capability," a provision borrowed from the Quebec law.

• Third: the natural death of the candidate must be "reasonably foreseeable," though no timeline is required. This is similar to the Quebec law.143

The B.C. Civil Liberties Association has filed a lawsuit alleging that these provisions are unconstitutional.144

Moving the goalposts

The new law requires the Minister of Justice to order "independent reviews" to explore the extension of euthanasia and assisted suicide

• to adolescents and children (the legal term being "mature minors");

• to incompetent people who made advance directives when competent, like people with dementia;

• to the mentally ill, as therapies for mental illness.145

I expect that, sooner or later, the Carter goalposts will move in these directions.

Where are we now?

There is some hope that the federal and provincial governments will create a central agency to connect patients with willing physicians, thus accommodating both patients and objecting professionals.

Religiously affiliated hospitals are incorporated into the state health care system,146 on terms which seem to have largely respected their denominational integrity. Now they face increasingly strident demands that they be forced to provide euthanasia and assisted suicide.

Colleges of Physicians and Surgeons in Ontario and Nova Scotia demand effective referral for euthanasia and assisted suicide by objecting physicians. Ontario, in addition, has the same policy for every morally contested procedure. Two lawsuits have been filed against the Ontario College as a result.147,148

In Quebec, objecting physicians are required to notify a designated administrator, who will then find someone willing to provide euthanasia.  This has been described as an "elegant solution,"149 but it is unacceptable to some -not all- objecting physicians (there is a range of views on this point) who believe that this makes them morally complicit in killing patients.150

Drawing the line between co-operation and collaboration

Other regulators have adopted the following approach for all morally contested services:
• Objecting physicians are expected to provide information needed for informed medical decision making, such as prognosis, the treatments or procedures available, benefits and burdens of treatment, etc. A physician unwilling to provide this kind of information is required to refer the patient to someone who will. This referral is for information, not for the morally contested service.

• If need be, objecting physicians are expected to advise patients how they can find other physicians or health care providers.

• While most policies do not say so explicitly, objecting physicians are not expected to make an effective referral for a morally contested service.

This is generally accepted by objecting physicians. They are willing to cooperate to enable a patient to make informed decisions and find other physicians, but they refuse to collaborate in wrongdoing.

That is the ongoing issue; drawing the line between cooperation and collaboration. This is complicated by occasional attempts at conscription: claims that their membership in a professional collective obliges them to support or enable the provision of euthanasia and assisted suicide by colleagues.151

Freedom of conscience advocacy

There is good news. Physicians have finally begun to defend their fundamental freedoms. In June last year, for the first time ever, the Christian Medical and Dental Society and Federation of Catholic Physicians' Societies held a joint conference in Calgary to focus on freedom of conscience.

The Coalition for HealthCARE and Conscience has been continuously engaging the public and lobbying federal and provincial governments, regulators, and the Canadian Medical Association.
Representatives of various Christian denominations and Jewish and Muslim communities have come together to make joint statements about euthanasia, and to support freedom of conscience and religion.

All of this had some impact.152 Opposition members of parliament and senators introduced or supported protection of conscience motions and amendments. In the end, however, the Liberal majority government allowed only revisions to the preamble, which, in Canadian law, counts for almost nothing. Only a single substantive section was added to the law:

241.2(9) For greater certainty, nothing in this section compels an individual to provide or assist in providing medical assistance in dying.

Deliberate omission

And that is true. Nothing in the Criminal Code compels individuals or institutions to kill people or help them commit suicide. But nothing in the Criminal Code prevents such compulsion. This omission was deliberate, and this omission is significant.

The federal government knew that Ontario physicians were being ordered to make effective referrals for euthanasia and assisted suicide. It could have prevented this by making it a crime to force someone to be a party to homicide or suicide.

At the Justice Committee hearings on the proposed law, the Minister of Justice was asked twice, point blank, if this could be done. The Deputy Minister of Justice was asked the same question. Both evaded the questions.153,154

Project submissions to parliament

The Project had made exactly this recommendation in its submission to the Justice Committee, but, like most others, the submission was not distributed to committee members. In consequence, I wrote (snail mail) to every member of parliament and every senator to answer the questions evaded by the Minister and Deputy Minister of Justice. With the letter was an amendment that was strictly and fully within federal jurisdiction, using only the language of the government's bill and the criminal law.

The proposed amendment would establish that, as a matter of law and national public policy, no one can be compelled to become a party to homicide or suicide, or punished or disadvantaged for refusing to do so.

This would not prevent the provision of euthanasia or assisted suicide by willing practitioners. . .

However, [it] would prevent state institutions or . . .those in positions of power and influence from harassing, punishing or disadvantaging anyone who refuses to be a party to inflicting death on others. . .

. . . The proposed amendment does not infringe the constitutional jurisdiction of provinces . . . Rather, it would re-establish and preserve a foundational principle of democratic civility: that no one and no state institution should be allowed to compel unwilling citizens to be parties to killing other people.

An amendment of exactly this kind was rejected in the Senate155

• because it would "make an offence out of something that is currently part of the practice of medicine,"

• because it would interfere in provincial jurisdiction,

• and because federal-provincial discussions were said to be resolving the issue.156

After the new law was proclaimed, the College of Physicians and Surgeons of Ontario resolved the issue on its own terms. It simply stated that its policy of "effective referral" was consistent with the Criminal Code.157

Government of Canada supports totalitarian claims

To sum up, the federal government knew full well that physicians were being ordered to be parties to homicide and suicide, it had the power to prevent it, and it was repeatedly asked to do so. It steadfastly refused.

This demonstrates that the government of Canada and its supporters deem it acceptable to force objecting physicians, "at a minimum," to arrange for their patients to be killed or helped to kill themselves.158 They deem it acceptable to force all publicly funded health care institutions - including denominational institutions - to kill patients in their care or help them commit suicide.159 The government of Canada considers this acceptable, because it could have prevented it, but deliberately chose to enable it.

Killing is not surprising. Even murder is not surprising. But to claim that the state, or a learned or privileged class or profession can legitimately compel unwilling souls to collaborate in inflicting death upon another person, and justly punish them if they refuse - such claims are extraordinary, and extraordinarily dangerous.

In Hannah Arendt's terms, these are totalitarian claims. They seek total domination of will and intellect in moral decision-making, even in matters of life and death.160 Such claims would have been completely unacceptable in Canada only two generations ago.

Closing

Well, what has all of this to do with your country?

I think you are the best judges of that. If there are lessons for the United States from this series of unfortunate events in Canada, I'm sure you will find them.

In closing, however, I will draw your attention to two points, and end with a reference to your Constitution.

The person is central

First: reasoning from different beliefs about what man is and what is good for him leads to different moral or ethical conclusions. Is lethally injecting a patient harmful - or beneficial? Is it medical treatment - or not?

Such questions cannot be answered without reference to the nature of the human person. A credal concept of the human person is what determines not only what counts as harm, but how one approaches every moral or ethical problem, not only in medicine,161,162 but in law.
Change the credal concept of the human person that informs the law, and you will change the meaning of the law, even if you do not change the wording of the law itself. What lies at the root of current controversies about freedom of conscience and religion is fundamental disagreement about the nature of the human person. An effective defence of freedom of conscience must take this into account.

Freedom of conscience: distinctions and limits

Second: judges or legislators often purport to "balance" conflicting rights claims by limiting freedom of conscience. I urge those defending freedom of conscience in such cases to insist upon a critical distinction that neither legislators nor judges have been in the habit of making.
Freedom of conscience is exercised in two different ways. The first is by pursuing some good that one thinks should be done; call this perfective freedom of conscience, because the pursuit of the good as one understands it is thought to be perfective of the human person. The second is refusing to do what one believes to be wrong; call this preservative freedom of conscience - preservative of personal integrity.

It is not unusual to limit perfective freedom of conscience. This may do people some wrong, but it does not necessarily do them an injury. In contrast, to limit or repress preservative freedom of conscience by forcing people to do something they believe to be wrong is always an assault on their personal dignity and essential humanity. It is inconsistent with the best traditions and aspirations of liberal democracy. It is incoherent, because posits an ethical duty to do what one believes to be unethical. It instills attitudes more suited to totalitarian regimes than to the demands of responsible freedom.

This does not mean that no restriction can ever be placed on preservative freedom of conscience. It does mean, however, that if the restriction can be justified at all, it will only be as a last resort and only in the most exceptional circumstances.163

A constitutional question

Finally, your Constitution. I am not a lawyer, and the Project does not give legal advice, but I note that your 13th Amendment abolished not only slavery, but "involuntary servitude."
Now, "involuntary servitude" refers to an historical practice associated to slavery. However, I suggest that to compel people to serve ends they find morally abhorrent is to reduce them to the status of tools, to treat them as things to be used for ends chosen by others, thus imposing upon them an odious form of involuntary servitude. That would seem to be the current situation of the owners of Stormans pharmacies in Washington state.

This conclusion seems consistent with the thinking of Dr. Martin Luther King Jr., who condemned segregation as "morally wrong and awful" precisely because it relegated persons "to the status of things."164 Others have made similar observations.165,166,167,168 

Lawyers present may think that this is grasping at straws. Well, that is how I get most of my exercise.

With this, I conclude, and thank you for your patience.