Submission to the College of Physicians and Surgeons of Alberta
Re: CPSA Draft Standards of Practice
Conscientious Objection as a Crime Against
A.1 The ultimate goal of the U.S.-based Center
for Reproductive Rights is to establish what it
calls "hard norms" - treaty-based international laws150-
that recognize access to abortion as a fundamental
It plans to develop a "culture of enforcement" that
will compel governments to respect this 'right'152
and enforce it against third parties - physicians
and other health care workers.153
Even as it works toward this end, it is cultivating
"soft norms" in the form of statements by
international, regional, and intergovernmental
A.2 Professor Bernard M. Dickens appears to
follow this strategy in a standard text, Canadian
Health Law and Policy. In his chapter on
Informed Consent, addressing the topic of
conscientious objection and disclosure of relevant
information to a patient, he notes that Canada has
ratified the 1998 Treaty of Rome constituting
the International Criminal Court. Within the context
of a discussion of the refusal of physicians or
institutions to advise women about the availability
of the morning after pill "in order to oblige
continuation of any pregnancy that may occur," he
Articles 7 and 8 of the treaty
characterize forced pregnancy following rape as a
crime against humanity and as analogous to torture.
Human rights commissions may share this view,
reinforcing their concerns about non-disclosure
constituting both discrimination against women and
inhuman and degrading treatment. Accordingly, the
right to object to perform or immediately
participate in medical procedures on grounds of
conscience carries no parallel right to refuse to
inform those eligible to receive these procedures
where or how they are practically accessible.155
A.3 The goal here is clear enough. Readers of Canadian Health Law and Policy are to be
persuaded that a health care worker who declines,
for reasons of conscience, to direct a patient to
the morning after pill or abortion commits the
offence of "forced pregnancy." The passage is meant
to convince them that, if this is not actually a
crime against humanity analogous to torture, it is
at least a gross violation of human rights that
ought to be prosecuted by human rights commissions.
A.4 Dickens here glosses over the distinction
between "forced pregnancy following rape" (the
subject of the Treaty) and his broader claim
concerning a "medically indicated procedure" (the
subject of his essay). Moreover, while he asserts
only a duty of disclosure, the logic of his argument
implies (as he argues elsewhere) that there is a
similar duty to refer or otherwise facilitate the
A.5 What first attracts critical attention is
that Dickens refers to the Treaty of Rome in
his text, but actually cites a different document as
authority for his claim that "forced pregnancy
following rape" is "a crime against humanity. . .
analogous to torture."156
Why cite a secondary source rather than the Treaty itself?
A.6 A review of the Treaty157
suggests one possible answer. The Treaty does
not support Dickens' claims. Specifically:
â€¢ In order to constitute a
crime against humanity or war crime, the offence of
"forced pregnancy" must be "committed as part of a
widespread or systematic attack directed against any
civilian population, with knowledge of the attack"
[Art. 7(1)], or during war [Art. 8(2)b]
â€¢ Pregnancy is only "forced"
within the meaning of the Treaty if a woman is
unlawfully confined after having been raped "with
the intent of affecting the ethnic composition of
any population or carrying out other grave
violations of international law." [Art. 7(2)f; Art.
â€¢ The definition of "forced
pregnancy" must not "in any way be interpreted as
affecting national laws relating to pregnancy,"
which include laws restricting or prohibiting
abortion [Art. 7(2)f]
â€¢ "Torture" is not, at any
point in the Treaty, associated with pregnancy,
whether forced or not. It is specifically defined as
"the intentional infliction of severe pain or
suffering, whether physical or mental, upon a person
in the custody or under the control of the accused."
A.7 The Elements of Crimes simply confirms
the provisions of the Treaty, both with respect to
torture and "forced pregnancy." The document adds
nothing that even remotely suggests that
conscientious objection to medical procedures or
services could be a crime against humanity, or that
it is analogous to torture. Again: why cite this
document in preference to the Treaty of Rome?
A.8 Perhaps the answer lies, not in what The
Elements of Crimes includes, but in what it
leaves out. It leaves out reference to the Treaty
provision that recognizes the right of states to
restrict or prohibit abortion by law, which is not
relevant to the purpose of the document [Art.
7(2)f]. But the provision is highly relevant to
Dickens' claim that delaying access to abortion is a
violation of human 'rights,' since it flatly
contradicts the notion that abortion is a human
A.9 Neither the Treaty of Rome nor The
Elements of Crimes associates "forced
pregnancy," even as it is defined by the Treaty,
with torture. It is grouped with "rape, sexual
slavery, enforced prostitution . . . enforced
sterilization, or any other form of sexual violence
of comparable gravity," but not with torture [Art.
7(1)g]. Nonetheless, Professor Dickens somehow
manages to conclude that the documents "characterize
forced pregnancy following rape . . .as analogous to
A.10 The only possible explanation for this is
that Professor Dickens considers "forced pregnancy"
analogous to torture because both are included among
the crimes against humanity listed in Article 7(1)
of the Treaty. On this basis, then, every crime in
the list is analogous to all of the others, so that
"forced pregnancy" is analogous not only to torture,
but to murder, forcible transfers of population,
enforced disappearance of persons and apartheid,
while murder is analogous to unlawful imprisonment,
deportation, etc. If this is how Professor Dickens
arrived at his singular conclusion, it is an open
question whether his reasoning does a greater
disservice to the law or to the English language.
A.11 In any case, the Treaty itself has
something to say about analogy:
The definition of a crime
shall be strictly construed and shall not be
extended by analogy. In case of ambiguity, the
definition shall be interpreted in favour of the
person being investigated, prosecuted or convicted.
Thus, the kind of extension of meaning advocated
by Professor Dickens is expressly prohibited by the
Treaty. This, too, Professor Dickens leaves out
of his essay.
A.12 Professor Dickens very selectively borrows
terms from the Treaty of Rome. He arranges
his material to make it appear that conscientious
objection that delays access to the morning after
pill or abortion is actually or very nearly a crime
against humanity analogous to torture, or, at least,
an egregious violation of human rights.
A.13 In addition to selective borrowing, Dickens
leaves out everything necessary for a proper
understanding of the Treaty of Rome, which,
incidentally, includes everything that might cause a
reader to question his claims. Finally, he directs
the reader not to the Treaty, which includes
a provision that is arguably fatal to his thesis,
but to a document that omits the provision.
A.14 Professor Dickens' polemic seamlessly weaves
the agenda of the Center for Reproductive Rights
into a standard Canadian reference work. There is no
doubt that this is advantageous to the Center and
its allies, but it brings into question the
reliability of Canadian Health Law and Policy.
Perhaps it is time for a third and more carefully
revised edition of the book.