Peter Baklinski

Physician conscience rights still officially protected in Canada, but increasingly threatened

Peter Baklinski
Peter Baklinski

POWELL RIVER, British Columbia, August 28, 2012 (LifeSiteNews.com) – After the Canadian Medical Association (CMA) voted two weeks ago to support the wording of the country’s Criminal Code which states that a baby becomes a “human being” only after being born, LifeSiteNews decided to track down where the CMA stands with regard to conscious rights for doctors who believe that babies are human before being born and want nothing to do with abortion.

CMA’s current 1988 policy for “induced abortion” in relation to doctors states that a physician “whose moral or religious beliefs prevent him or her from recommending or performing an abortion should inform the patient of this so that she may consult another physician.”

The CMA policy moreover clarifies that “no discrimination should be directed against doctors who do not perform or assist at induced abortions. Respect for the right of personal decision in this area must be stressed, particularly for doctors training in obstetrics and gynecology, and anesthesia.”

While the written policy sounds like it does protect pro-life physicians, LifeSiteNews contacted Sean Murphy, administrator for the Protection of Conscience Project (PCP), to find out more about how the policy is applied in practice, and about freedom of conscience for physicians in general in Canada.

LSN: Even the CMA, which holds rigorous views on abortion, still believes in conscience rights, but not completely. In 2007, Jeff Blackmer, executive director of the Office of Ethics for the CMA, wrote a piece titled “Clarification of the CMA’s position concerning induced abortion” wherein he states that a doctor “should not interfere in any way with this patient’s right to obtain the abortion. At the patient’s request, you [the doctor] should also indicate alternative sources where she might obtain a referral.”

PCP: This statement was published because of a controversy that erupted over a 2006 guest editorial in the CMA Journal by Professor Jocelyn Downie of Dalhousie University and Sanda Rogers of the University of Ottawa. They claimed that physicians were obliged to refer for abortion. Responses from the CPC and others are here.

Dr. Blackmer’s statement is not considered an assertion that physicians are obliged to refer for abortion. It would be sufficient for a physician to indicate that if the patient wished to pursue the matter she could contact other physicians or the College of Physicians and surgeons, or consult a telephone book. In my experience, physicians who object to referral for reasons of conscience (not all do) do not normally object to providing this kind of information.

In June, 1977, the CMA revised its Code of Ethics to include a clause that imposed an obligation to refer for morally contested procedures (abortion was not specifically named). The clause was removed the following year because of opposition from CMA members. David Williams, then CMA director of ethics, told me in 2000 that the policy was dropped because there was no ethical consensus to support it. Nothing has changed in this respect.

The issue of referral has appropriately been described as an intractable problem by Holly Fernandez-Lynch in Conflicts of Conscience in Health Care: An Institutional Compromise. See the PCP review here. It was highly controversial for the CMA in 1977, and it still is. Indeed, given Carter v Canada, [a case that recently legalized euthanasia and assisted suicide in Canada but was appealed by the government of Canada] it may become even more controversial. (see below)

LSN: How do you see the state of conscience rights for doctors in Canada?

PCP: ‘Rights’ language is problematic for a number of reasons, not the least of which is the use of rights language to justify ethical aggression and ethical cleansing of professions. The issue is better expressed in terms of fundamental human freedom.

The situation is precarious because much depends upon the attitude of the legal and human rights establishment, which both appear to be developing attitudes that are increasingly hostile to the exercise of freedom of conscience when the exercise expresses what might be termed politically incorrect views.

The underlying problem is disagreement about the nature of human rights. The foundational problem is disagreement about the nature of the human person.

Physicians are in a better position to defend their fundamental freedoms than most other health care workers because of their professional dominance and relative independence. A physician who has completed the educational and regulatory requirements for practice can, if need be, begin to practise independently. A qualified nurse, on the other hand, must find an employer in order to work, and remains dependent on an employer in order to continue to work and advance in the profession. Pharmacists are similarly disadvantaged.

LSN: Do you see an erosion happening with regard to conscience rights for doctors in Canada?

PCP: This is difficult to assess because factors that can contribute to erosion may operate out of the public eye: in law schools, in committees of Colleges of Physicians or associations, in seminars or meetings of ‘rights’ groups, and in government bureaucracies.

For example:

• Prof. Sanda Rogers was reported to have told a class at the University of Ottawa on 28 October, 2004, that a physician is required by law to refer patients for abortion, even if the physician objects to the procedure for reasons of conscience. The Dean of the Faculty of Medicine denied that the statement was made. However, the CMA Journal editorial she co-authored with Jocelyn Downie in 2006 appears to reflect the position attributed to her two years earlier. We do not know how often this kind of statement is made in post-secondary classrooms across the country.

• In 2008, the Ontario College of Physicians and Surgeons very nearly adopted a policy to prohibit physicians in the province from acting on their moral, ethical or religious beliefs. This was the result of pressure from the Ontario Human Rights Commission.

Most physicians in the province were unaware that this was happening until the day before the deadline for comment on the policy. The PCP issued a news release and alerted its contacts after being called by a physician who discovered the draft policy by accident.

The resulting uproar forced the College to backpedal somewhat. However, its revised draft was completed before the deadline for public consultation had expired, and the College refused to release the revised draft until the eve of the Council meeting that was to consider it, effectively precluding further critical comment on the document that the Council was to consider. Despite calls from the Ontario Medical Association and the PCP to postpone the vote, the policy was adopted. The most blatantly provocative sections were removed, but the amended policy is less than satisfactory.

• Another important consideration is the potential effect of Carter v. Canada, the BC Supreme Court judgement that proposes to legalize physician assisted suicide and therapeutic homicide (the term used by a CMA Journal editorial). The Royal Society of Canada “expert panel” on euthanasia and assisted suicide recommended that objecting physicians be forced to refer for the procedures. Three of the authors of that report were witnesses for the plaintiffs in Carter v. Canada, and a fourth, Joceyln Downie, instructed the plaintiffs’ expert witnesses. 

As noted above, Downie has long been a proponent of compulsory referral for abortion. The PCP does not take a position on the morality or desirability of assisted suicide or therapeutic homicide, but is concerned that legalization of the procedures would threaten freedom of conscience for health care workers. A response to the judgement from the CPC dealing with this issue is in preparation.

LSN: Do we need laws that affirm conscience rights? If so, what should those laws look like?

PCP: Yes, we need laws that affirm conscience rights. Laws can be general or procedure-specific. There are advantages and disadvantages to both approaches. See the Model Statute on the PCP website and examples of other proposed or existing legislation.

LSN: What can a doctor do to keep his job who has made the decision to be no part of a process that ends the life of a child in the womb?

PCP: It is a serious mistake to confine concerns about freedom of conscience to abortion.

• In the case of a morally contested procedure or service, an objecting physician should first ensure that he has a solid understanding of the essential facts concerning it, based on sound science and the latest reliable research.

• Academic discipline requires an ability to distinguish between what lies within the province of science and what lies elsewhere. “Personhood,” for example, can have distinctive philosophical or legal meanings, but it is not a scientific concept at all. Whether or not something “ought” to be done is a subject for philosophy, religion, or ethics - not science. Keeping clear about this is essential for good communication with patients and colleagues.

• Obtain copies of the policies of regulatory and licensing authorities and study them. Do not ignore the policies of specialist associations that may have considerable influence in setting ‘standards of care.’

• Some objectors encounter problems primarily because of the way they communicate with patients, colleagues or others. If it is necessary to explain your position, it must be done so in a way that refers to your own moral responsibility, not that of the patient or colleague. Avoid expressions that impute wrongdoing to others or that might come across as “preaching”.

• Conscientious objection is likely to make colleagues who do not share your views uncomfortable because it implies that what they are doing is wrong. It is unwise to increase their discomfort by making statements that will be perceived as questioning their moral judgement, as they are then likely to become hostile. Take note of their discomfort - “You seem troubled/ disturbed/surprised” and invite dialogue - “Have I offended you?”

• In addition to discomfort, you may encounter a belligerent challenge, contempt or condescension. If you are taken by surprise or become flustered, no harm is done by admitting the fact and suggesting that time should be made for an uninterrupted chat.

• Don’t rush into what might prove to be a contentious discussion simply to counter an offensive or ill-timed remark. Everyone will benefit if even a few minutes is taken to reflect and relax.

• Resist the urge to explain or defend yourself. Instead, ask your interlocutor to explain his concerns. Listen carefully, and ask questions, not to challenge his views, but to clarify the issues and identify any unexamined presuppositions that are governing his approach to them.

• There is no point exasperating a colleague by attempting to argue from incorrect assumptions about what he knows or believes. Let him tell you. Identify points of agreement and points of contention, and work together from there.

• The notion of working together with your critic is important. The goal is authentic and respectful communication, even if it involves serious argument and fundamental disagreements.

• If you are uncertain about how to reply to facts or an argument presented by your critic, you should simply admit it and promise to continue the discussion after you have had time to think further about it or research the problem. Offer your critic the same courtesy, unasked for, if need be. There is no need to resolve everything at once. In fact, it may prove difficult to resolve even preliminary matters in the first encounter.

• Long before a crisis looms you should seek the fellowship of students and professionals from other religious traditions (or none) who have a common interest in securing freedom of conscience in health care. You may be surprised to find that someone from a completely different faith and culture is more supportive of your views than a co-religionist who lives down the street.

Dr. Will Johnston, president of Canadian Physicians for Life recently told LifeSiteNews that Canadian doctors who want a “serious alternative” to the conversation provided by the CMA “can find it in Canadian Physicians for Life.”

Red alert! Last call.

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Sydney archdiocese sends letters to businesses expressing concern over support of gay ‘marriage’

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By Thaddeus Baklinski

June 29, 2015 (LifeSiteNews) – The Catholic Archdiocese of Sydney has sent letters expressing "grave concern" to numerous corporations that had sponsored a full-page newspaper ad published in The Weekend Australian on June 13 promoting same-sex "marriage".

“You are publicly supporting a strategic, political and well-funded campaign designed to pressure the federal government into changing the Marriage Act,” reads the letter from archdiocese business manager Michael Digges to one of the businesses, the law firm of Maurice Blackburn.

“I wonder whether you have questioned whether it is the role of a corporation such as yours to be participating in such an ­important matter that impacts all of Australian society now and into the future," it continued.

"For corporations to speak on such issues on behalf of shareholders, employees, clients/customers, suppliers and other stakeholders is indeed overstepping their purpose and is to be strongly resisted," the letter stated.

Maurice Blackburn, along with more than 150 other businesses including Qantas, Google, MTV, McDonald's, Levi's and the Football Federation of Australia, put their names in the ad calling for the government to amend the Australian Marriage Act of 1961, which recognizes marriage as between one man and one woman, to include homosexual couples.

Maurice Blackburn's Liberty Sanger told the ABC the letter was “uncalled for” and “a very heavy-handed response,” noting that the position of the law firm is to "continue to show our support so that others who have the same view as us have the courage to speak up and encourage parliamentarians to make the right decision in the Parliament."

The letter to corporations asking them to stay out of the culture war surrounding same-sex "marriage" follows the distribution of a pastoral letter titled "Don’t Mess With Marriage" to Sydney parishes, staff and parents of children at Catholic schools.

“Don't Mess with Marriage “explains the Church's formal teachings on the Sacrament of Marriage, and it reaffirms and supports the definitions contained within the Marriage Act 1961 and the Marriage Act Amendment of 2004, which defines marriage as "a union between a man and a woman to the exclusion of all others."

It also details the implications of changing this law to permit same-sex couples to marry.

"The Church's contribution to informing the public debate is crucial," said Anthony Cleary, Director of Religious Education and Evangelization in a statement, "because at the moment this side of the argument is not being adequately covered either by social or the mainstream media."

Cleary pointed out that for people of faith, marriage is not simply a label that can be attached and transferred to different types of relationships as the fashion of the day dictates.

He explained that marriage for Catholics is not only an emotional union, but a total commitment of body and spirit, and that the Church teaches that God is the author of marriage and that the matrimonial covenant between baptized persons is holy and has the status of a sacrament.

Earlier in June a statement from the Sydney Archdiocese said that thirty-eight Australian religious leaders representing the major religious traditions and a broad diversity of faiths and cultures, have written a public letter to Prime Minister Tony Abbott, urging him to resist attempts in Federal Parliament to redefine the meaning of marriage.

"As leaders of Australia's major religions we write to express the grave concerns that we, and those who share our various faiths, share regarding Bills that have or will be introduced into the Federal Parliament to change the definition of marriage in Australian law," the letter said.

The 38 signatories include the Catholic and Anglican Archbishops of Sydney, a bishop of the Lutheran Church, bishops from various Eastern and Orthodox Churches, Christian pastors representing major Protestant denominations, senior rabbis from the Jewish community and leaders from both the Sunni and Shia Islamic communities.

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The religious leaders pointed out that Australia's definition of marriage as a union of a man and a woman is shared by the vast majority of nations and cultures, who represent over 91 percent of the global population.

Moreover, they emphasized the need to uphold traditional marriage for the good of children, stating that, "as a couple, two persons of the same sex are not able to provide a child with the experience of both mothering and fathering. Only the institution of marriage between a man and a woman has this inherent capacity to provide children with both of these relationships that are so foundational to our human identity and development."

The Abbott federal government had gone into the last election with the policy of supporting traditional marriage, meaning that the government MPs would be bound to vote against same-sex “marriage” on a party basis if a bill is put forward.

Australian law permits homosexual civil unions, but not marriage, a law which Abbott has defended.

Following May's referendum in Ireland legalizing same-sex "marriage", Abbott reiterated that Australia will not hold such a referendum, despite pressure from activists.

"Referendums are held in this country when there is a proposal to change our constitution and I don't think anyone is suggesting the constitution needs to be changed in this respect," Abbott said. "It's up to members of parliament who are eager for change to decide whether they want to bring it forward."

The letter from the Catholic Archdiocese of Sydney to the law firm of Maurice Blackburn is available in two parts here and here.

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Supreme Court suspends Texas law that would have closed half of its abortion facilities

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By Ben Johnson

WASHINGTON, D.C., June 29, 2015 (LifeSiteNews) – About half of the abortion facilities in Texas got a reprieve from the Supreme Court on its last day in session.

Justices ruled 5-4 that, right now, the state of Texas may not enforce health protection laws that would have put all but nine of the state's abortion offices out of business. The court's conservative bloc – Chief Justice John Roberts, joined by Justices Scalia, Thomas, and Alito – objected, but Anthony Kennedy cast the decisive vote with the court's liberals.

At issue is whether the state may require abortionists to have admitting privileges at nearby hospitals and require abortion facilities to meet the same health and safety codes as other ambulatory surgical centers.

The temporary stay of Senate Bill 5 lasts until the justices decide whether they will hear an appeal from the abortion industry, which argues the law's provisions would unduly restrict a woman's access to abortion-on-demand.

“The U.S. Supreme Court was swayed, not for the first time in a week, by illogical arguments,” said Kristan Hawkins, president of Students for Life of America. “By actively lobbying against common sense regulations that would make sure women have access to ‘safe, legal and rare’ abortions, Planned Parenthood and their allies are making a mockery of women’s health care.”

“The abortion industry cares only for their bottom line, and women and their prenatal children are merely dollar signs in their business cycle,” Hawkins said.

"Women and babies are being denied protections with the Supreme Court blocking pro-life legislation,” said Lila Rose of Live Action. “Contrary to what big abortion organizations would have us believe, the possible closure of abortion facilities is due to the refusal of these corporations to adhere to sensible and ordinary medical precautions. We look forward to the day that both the legislature and the Courts use their power to protect the most vulnerable among us."

State pro-life leaders regret the loopholes that they say put women's health at risk.

“Unfortunately, women who do not have abortions at any of the nine operating ambulatory surgical centers that perform abortions will continue to be subjected to substandard medical care,” said Joe Pojman, Ph.D., executive director of Texas Alliance for Life.

The ruling does not permanently enjoin the state. It does not even guarantee justices will hear the case.

Should they decline, the law will go into effect in its entirety.

Last October, the Supreme Court allowed Texas to implement these measures while the Fifth Circuit Court of Appeals considered its decision in a 6-3 verdict. However, it added that the state must allow abortion facilities in El Paso and McAllen to operate subpar operations, defying greater protections for women, because closing those facilities would require women to drive a great distance to the next nearest abortion facility.

Earlier this month, a three-panel judge of the appeals court, based in New Orleans, upheld the health regulations. All three judges had been appointed by President George W. Bush.

Had the full requirements gone into effect, half of all the remaining abortion facilities in Texas would have closed.

The left-wing website ThinkProgress worried, if the High Court upheld the decision, it would mean that “Roe v. Wade is almost entirely dead.”

Today, representatives of the abortion lobby felt relief. "Our Constitution rightly protects women from laws that would create barriers to safe and legal abortion care, but Texas politicians have tried to sneak around the Constitution with sham regulations designed to close clinics’ doors," said Nancy Northup, president of the Center for Reproductive Rights.

Texas Gov. Greg Abbott, a pro-life Republican, vowed to “continue to fight for higher-quality health care standards for women while protecting our most vulnerable – the unborn.”

“I’m confident the Supreme Court will ultimately uphold this law,” he added.

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Post-Obergefell, states withdraw marriage licenses, ensure conscience protection

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By Drew Belsky

June 29, 2015 (LifeSiteNews) -- Friday's Supreme Court ruling redefining marriage in the United States has caused a tumult in county clerks' offices.  While some states have begun issuing marriage licenses to same-sex couples throughout, others have counties still waiting for directives from their respective attorneys general regarding how to proceed.

Louisiana governor and 2016 presidential candidate Bobby Jindal (R) announced that clerks in the Pelican State must wait 25 days before issuing marriage licenses to same-sex couples.  This is the period of time the state has to ask the 5th Circuit Court of Appeals to reconsider its own ruling on the matter.  However, Jindal admitted on Meet the Press that Louisiana will likely have to comply with the Supreme Court's Obergefell ruling before long, and the governor's directive is binding only in New Orleans, which falls under his personal jurisdiction.

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In a statement, Jindal said, “Marriage between a man and a woman was established by God, and no earthly court can alter that.”

“This decision will pave the way for an all out assault against the religious freedom rights of Christians who disagree with this decision. This ruling must not be used as pretext by Washington to erode our right to religious liberty,” he said.

Two Alabama counties have stopped issuing marriage licenses altogether.  The probate judges in Pike and Geneva Counties cited Alabama law, which states that "[m]arriage licenses may [as opposed to shall] be issued by the judges of probate of the several counties."  Judges in other Alabama counties may do likewise.

Mississippi may follow suit as well, with Gov. Phil Bryant (R) having declared his intention "to do all that he can to protect and defend the religious freedoms of Mississippi."

Lt. Gov. Tate Reeves (R) echoed Bryant, calling the Supreme Court ruling an "overreach of the federal government," whose "powers should no longer be limited to those enumerated in our Constitution."

In Texas, prior to the Obergefell ruling, state attorney general Ken Paxton (R) had requested that county clerks hold off on granting marriage licenses to same-sex couples pending state approval.  However, several clerks post-Obergefell began processing licenses immediately, especially in large urban counties.

Texas Gov. Greg Abbott (R) condemned the Obergefell decision, blasting the Supreme Court for "abandon[ing] its role as an impartial judicial arbiter" and "becom[ing] a nine-member legislature."  Abbott promised to protect the religious liberty of Texas residents: "No Texan is required by the Supreme Court's decision to act contrary to his or her religious beliefs regarding marriage."

The Texas Senate's GOP caucus, calling Obergefell "an affront to the Texas Constitution," pledged to support Abbott and his attorney general "in any legal action [they] may take to defend the religious liberty of Texans in the wake of this troubling decision."

Harris County in Texas originally balked at issuing marriage licenses to same-sex couples specifically because the forms read "man" and "woman," but the county's attorney's office directed clerks to issue the forms anyway, saying they could be corrected later.  Eventually, revised forms reading "applicant 1" and "applicant 2" were provided.

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