A doctor speaks out about conscience rights

By An Ontario Doctor

I received a copy of this letter from a doctor. The doctor is writing about health care workers' conscience rights.

To my Member of Provincial Parliament of the Liberal Party,

I am deeply disappointed by the Liberal Party's willful disregard of the conscience rights of health care professionals when they voted in unison to defeat Bill 129 (An Act to amend the Regulated Health Professions Act, 1991).

I realize now the utter powerlessness that minority citizens, like myself, have in the face of governments who have differing ideals.  I depended upon my elected member of parliament to speak for me, to be my voice and my vote on the one issue over which I have agonized for the past two years, an issue that has affected not only my freedom in how I practice my craft, but also the well being of countless patients (among whom you and I will be counted one day) who will be affected by the ramifications of this shift in health care policy.  I cannot help but to feel let down by both federal and provincial governments that have decided to play a political game based on faulty arguments which you and I both know are untrue.  For example, the argument of the patient who is so isolated and helpless that they cannot telephone to self-refer for MAID, is a fictitious patient that does not exist - but if on the rare occasion that such a patient actually did exist, then helping them to get on a pathway to be euthanized is perhaps the wrong immediate focus before other supports have been put into place first!

Which is why I don't understand the argument so often used by the Liberal party to discount conscience rights -  that upholding conscience rights would somehow limit access to service.  This argument is false, as has been shown in other jurisdictions that have allowed euthanasia and assisted suicide while still respecting conscience rights.  However, if the belief is that upholding conscience rights does in fact limit access to service, then this stated belief is incoherent with other statements made that conscience rights is already protected by the Charter of Rights and Freedoms and the Preamble of C-14.  If conscience rights are, as stated, already protected, then what would be the harm of upholding these rights in legislation?  It is precisely because these rights are NOT sufficiently protected in light of the Carter decision that there is a need for explicit legislative protection, and which the Federal Government expected provinces to enact provincially.  Instead, the Ontario government has shirked its responsibility of protecting fundamental freedoms that are being eroded with seemingly no consequence to regulating colleges keen to impose policies that violate human rights due to their own faulty understanding of what it means to respect conscience rights.

Not enacting laws that protect freedom of conscience is analogous to saying, at the Federal level, that because everyone has a Charter Right to Life, there is no need for a law prohibiting murder because a person's right to life is already protected under the Charter.  Charter rights are guiding foundational principles upon which laws are created and by which they must abide.  Nowhere has there been any evidence produced that demonstrates upholding the Charter rights of Freedom of Conscience in Legislation infringes upon another person's right to life (which was the reason why physician-assisted suicide was permitted).  Furthermore, the Care Coordination System which the government has agreed to create (thank you very much) resolves the public fear of potential restrictions to access.  

A Charter of Rights and Freedoms is effective in granting rights only in so far as those words are respected in action, which, on this issue, has not been the case.

It is clear from the Liberal party's stance that it sides with the College of Physicians and Surgeons of Ontario (CPSO), which the Canadian Medical Association has stated holds an "impoverished" understanding of conscience, and which does not respect differences of conscience.  Just because one might believe it is okay to do something a certain way does not mean that another person believes the same.  And it is wrong to coerce another person in doing what they deeply believe to be wrong even if one may think it is for a perceived good (in this case, the death of a suffering person), no matter how hard one tries to justify this coercion by looking to other people who may have reconciled their own consciences with the objectionable act.  This is where differences in conscience plays out, and so far, the Liberal government has firmly decided it would only protect the conscience rights of some, but not all, health professionals in trying to achieve that "balance" so oft spoken.

What your party has demonstrated by word and action is that it is okay to not respect those who cannot participate in an effective referral for the death of their patient.  If this is not what you believe, and only what your party has asked you to support, then I am truly sorry that you are placed in a position in which you must contort your own words and actions so as to align yourself with what has been asked of you, without the freedom to voice what you truly believe.  And if your words and actions are indeed a true representation of what you believe and stand for, then I am saddened that you are unable to see the truth behind the harms that your beliefs and position will cause for the greater society.  One of the best, most comprehensive speeches I have heard on the subject was given by Cardinal Müller.  You may wish to read the full text here.

When the voice of reason became overshadowed by political antics on an issue that should never have become a victim of partisan politics, I came to the clear realization that if the majority government espouses values that are fundamentally different from my own, elected members of provincial parliament will only do what their Party dictates, and not, as I had previously supposed and hoped, what we elected them to be, as a voice for their constituents.  In casting my vote at the next election, I will bear this in mind, and favour a party (and not any one individual), that has demonstrated a commitment to upholding the fundamental freedoms upon which our democracy rests.

Despite my deep disappointment and sadness over a situation that remains incomprehensible to me, I just want you to know that I think of you and pray for you often, for your well-being, and for your good.  I ask that perhaps you might also do the same for me, and keep me in your prayers.

Sincerely,
your local physician

How the defeat of Cassie and Molly’s Law could endanger abortion

by Barbara Maloney

Cathay Wagantall’s Private Members Bill C-225 (Cassie and Molly’s Law) was defeatedby a wide margin (209 to 76) in the House of Commons last week. This means the bill will not be sent to a committee for study and is now dead.

Bill C-225 would have allowed charges to be laid for harming or causing the death of a preborn child while committing a criminal offence against a pregnant woman. Such a law would act as a strong deterrent to committing violent acts against pregnant women, increasing the chances she and her baby could make it safely through her pregnancy. It was a compassionate and common sense response to an all too common problem.

Not a single MP from any party other than the Conservatives voted for the bill. This suggests the vote may have been whipped by leaders of the Liberals, the NDP, and the Bloc, which is odd since Prime Minister Justin Trudeau and the other party leaders have repeatedly argued in favour of women’s reproductive choice. Bill C-225 would have strengthened reproductive choice for women by making it a criminal offence for a third party to intentionally kill a pregnant woman’s fetus (thus terminating her pregnancy) while committing a criminal offence against her – a pregnancy termination to which she clearly did not consent. We are talking here about someone who attacks a woman and takes away her choice by ending the life of the child who otherwise would have been born alive. Nothing could undermine women’s reproductive choice more than that.

My MP, Chandra Arya (Liberal) wrote to me last month saying that he would not be supporting the bill. I had seen comments from other Liberal MPs as well. No doubt, the Liberal MPs were given a set of talking points to use to try to defend their opposition to C-225. But their arguments don’t stand up to scrutiny, which suggests something else was behind their opposition to the bill, as I explain below.

Criticism: C-225 doesn’t address the broader issue of gender-based violence

The Liberal government criticized the bill for failing “to address the broader issue of violence against women.” But why would any MP not support a law that at least partially addresses the problem? No bill ever completely addresses an issue, and so why should C-225 be held to a higher standard than any other bill?

Mr. Arya also told me that “Our government believes that gender-based violence has no place in our society, and we are committed to developing and implementing a comprehensive federal strategy against gender-based violence.” That’s great, and bill C-225 could have been one important part of such a comprehensive strategy. Voting for this bill in no way would have precluded the government from enacting further laws and policies that address gender-based violence. Pregnant women are sometimes attacked precisely because they are pregnant. Cassie and Molly’s Law would act to deter such violence, given the stiff penalties in the bill for purposely causing the death of the woman’s unborn child.

Criticism: C-225 might be challenged under the Charter

My MP also told me the bill “would likely be challenged under the Charter.” Yet, as far as I’m aware, there has been no credible legal opinion by any reputable lawyer arguing that the bill violates the Charter. On the contrary, renowned constitutional expert Eugene Meehan has provided a legal opinion, posted on Cathay Wagantall’s website, defending the constitutionality of the new offences created in the bill.

Most Liberal MPs voted in favour of the government’s bill C-14, Medical Assistance in Dying, even though several lawyers were of the opinion it was unconstitutional. So if the Liberal MPs were not deterred by the constitutional concerns regarding C-14, it is incredible that constitutional concerns were behind their opposition to Cassie and Molly’s Law.

What was the real reason for opposing C-225?

Given C-225 respects the constitution, including the Charter; given it is one concrete way that MPs can help tackle gender-based violence which they claim they want to do; and given it is supported by amajority of Canadians, it seems that MPs’ opposition to this bill stemmed from something else – something they may not have been even consciously aware of.

Which brings us to the issue of abortion.

Fear that C-225 could reopen the abortion debate

My MP told me that this bill could “reopen the abortion debate.” This bill and the abortion issue do have something in common – they both deal with pregnant women and preborn children. But anyone who is truly pro-choice ought to recognize the difference between an abortion which a woman freely chooses, and a situation where a woman has not chosen abortion and is violently attacked by a third-party who wants to kill her and/or her baby and unilaterally takes away her choice to bring her child safely to term.

So how do we account for supposedly pro-choice MPs voting against a bill that would have made it a crime to forcefully end a woman’s pregnancy against her will? Why did these MPs ignore the significant role that the woman’s free choice plays in differentiating C-225 from abortion? Are these MPs not pro-choice after all, but rather pro-abortion, even pro-forced abortion?

I don’t believe so – I don’t believe a majority of our MPs voted against C-225 because they actually believe that a dead fetus is better than a live fetus.

The only remaining explanation is that they voted against C-225 out of fear of what it would mean for abortion if we recognized in law that it can sometimes be wrong to kill a preborn child. They would have been asking themselves, even if only at an unconscious level: if it is wrong to kill a fetus during a brutal attack on a woman against her will, how can we justify abortion, which also kills a fetus?

But as MikeSchouten writing in the National Post points out, there would be no reason for anyone who is pro-choice to fear that C-225 would endanger abortion if they actually believed in their own pro-choice rhetoric: that a woman’s freedom to choose is enough to justify abortion (that is, that the choice of the woman trumps the life of the fetus.)

The defeat of C-225 was in essence, then, a sign that a majority of our MPs do not believe that freedom of choice, in and of itself, can justify abortion. A majority of our MPs could not get past focusing on how C-225 and abortion are alike (preborn child’s death), rather than how they differ (woman’s choice). It was apparently easier for our MPs to deny that it can ever be wrong to kill a fetus – and vote against C-225 – than to be put into the uncomfortable position of having to justify why abortion is not wrong. They are apparently only able to defend abortion if they deny there is any inherent value in the life of a preborn child. They would have had the confidence to defend abortion if they truly believed deep down that the choice of the woman trumps the life of the fetus.

Thus in defeating C-225 for fear it could endanger abortion, our Members of Parliament ended up revealing a lack of confidence in their own ability to defend abortion. If even our supposedly staunch “pro-choice” MPs feel so ill-quipped to defend abortion, then what kind of message does that send about the acceptability of abortion? C-225 itself could never have endangered abortion. The irony is the MPs who opposed the bill might end up doing just that.

The Carter decision and what it says

What does Carter really say about terminal illness?

by Barbara Maloney

The federal government’s Bill C-14 has been loudly criticized for limiting “medical assistance in dying” (MAID) to those whose death is “reasonably foreseeable.” Critics say that in Carter the Supreme Court did not limit “physician-assisted death” (PAD) to those with a terminal illness and to do so in C-14 is unconstitutional. They point out that Kay Carter, mother of one of the plaintiffs, was not terminally ill and so would not qualify for MAID under Bill C-14.

However, importantly, the Supreme Court was silent on whether Kay Carter would have qualified for PAD.

That’s because Kay Carter’s right to seek PAD was not at issue in Carter. Gloria Taylor’s right was. The court expressly stated it was pronouncing only on the rights of Ms. Taylor and “people like Ms. Taylor” and only in the “factual circumstances in this case. We make no pronouncement on other situations where physician-assisted dying may be sought.”¹

And Ms. Taylor did have a terminal illness.

(Kay Carter’s daughter, Lee Carter, challenged the law prohibiting assisted suicide as a violation of her right to liberty, it putting her at risk of criminal prosecution for assisting in someone else’s suicide. The Supreme Court did not deal with this issue but confined its decision “to the rights of those who seek assistance in dying, rather than of those who might provide such assistance.”² )

Consequently, whether or not Kay Carter would be eligible for MAID under bill C-14 is irrelevant to a discussion of the bill’s constitutionality.

What is relevant is whether or not the Supreme Court intended that PAD must be available to those who were not “terminally ill” / at the “end of life” (however imprecise those terms may be). While the court did not explicitly state that PAD may be restricted to those with a terminal condition, it is reasonable to conclude that the court implied this, based on the trial judge’s ethical analysis of PAD. The trial judgment is of particular relevance because the Supreme Court relied on it so heavily and unequivocally affirmed it.

The trial judge, Justice Smith, said that a central question in this case “is whether it is ethical for physicians to provide [PAD].”³ The ethical debate is relevant, she said, because “both legal and constitutional principles are derived from and shaped by societal values.”⁴

Her lengthy ethical analysis was based on a comparison between PAD and existing end-of-life practices which are lawful, such as withdrawal or refusal of life-sustaining /life-saving treatments. She was persuaded by the ethicists who said there is “no ethical distinction” between PAD and these other “end-of-life practices whose outcome is highly likely to be death.”⁵ 

It is important to note that Justice Smith’s ethical analysis involved only a category of people who would, without treatment, die. In short, her ethical analysis and the analogy she relies on are only applicable to people at or near the “end of life.” One cannot, therefore, assume that Justice Smith (or the Supreme Court) would have applied the same ethical analysis or arrived at the same conclusion with respect to people who were not terminally ill.

It is entirely reasonable to assume that the Supreme Court was considering only that category of patients whom Justice Smith was considering in her ethical analysis, that is, those who, but for a life-sustaining/life-saving treatment, would die.

A further hint that the Supreme Court was contemplating only terminal/end-of-life patients can be found in its discussion about the types of treatments that those with a “grievous and irremediable medical condition” are currently allowed to request or refuse: the same treatments applicable to end-of-life patients that formed the basis of Justice Smith’s ethical analysis.⁶

Thus a reasonable reading of the Supreme Court’s Carter decision permits Parliament to restrict MAID to those who are terminally ill /nearing the end of life. Parliament could choose, of course, not to require terminal illness, but requiring it would not be contrary to Carter.

Barbara Maloney is a freelance writer living in Nepean, Ontario.

1 Carter v. Canada (Attorney General), [2015] 1 S.C.R. 331, paras. 126 and 127.

2 Ibid. para. 69.

3 Carter v. Canada (Attorney General), 2012 BCSC 886 (CanLII), para 164.

4 Ibid. para. 317.

5 Ibid. para. 335

6 Carter v. Canada (Attorney General), [2015] 1 S.C.R. 331, para. 66.

Conscience rights are violated with Bill C-14

From the Protection of Conscience Project:

"... it is necessary to emphatically reaffirm that conscientious refusal to kill people is a manifestation of essential humanity that deserves the protection of law... 

...Bill C-14 does not provide that protection. The government is deliberately ignoring the ongoing coercion of health care providers to compel participation in euthanasia, and Bill C-14 will allow coercion to continue..." 

...the federal government can prevent such coercion because it has exclusive jurisdiction in criminal law. It can enact a law to prevent powerful groups, professions, or state institutions from forcing people to be parties to homicide and suicide. It can prevent those in power from punishing health care providers who refuse to arrange for their patients to be killed or helped commit suicide...

...It is true that the bill’s preamble states that the government will “respect the personal convictions of health care providers.” But – aside from the fact that preambles have no legal effect – what is that worth? 

...the Special Joint Committee claimed that respect for freedom of conscience is exemplified by their recommendation that, “at a minimum,” objecting physicians should be forced to find colleagues willing to kill their patients. Behind this Orwellian perversion lies the Committee’s more astonishing premise: that the state can legitimately order people to become parties to homicide and suicide, and punish them if they refuse. 

...Whatever else it might decide about euthanasia and assisted suicide, parliament should make it the law of the land that no one and no institution in Canada can be forced to be a party to homicide or suicide, and no one will be punished or disadvantaged for refusing to do so.”