The Physician’s Conscience
Mary Anne Waldron
Original published August 2014
A paper prepared by the Ontario Human Rights Commission, a few years ago, suggested that a physician was required to check his or her private beliefs at the door of the surgery or risk violating the law. How could the Commission come to that conclusion? Are they right? Is it true that a physician must be prepared to perform procedures he or she finds morally indefensible?
This issue is currently becoming a wider concern. In Alberta, the College of Physicians and Surgeons has received complaints
against physicians who refused to perform or refer patients to those who would perform abortions or vasectomies or prescribe
contraceptives. Whether or not the College decides that these physicians should be disciplined, the matter is likely to be appealed. The question of the physicians’ conscience will soon therefore be tested in the courts. No doubt it will ultimately reach the Supreme Court of Canada.
The problem lies in an apparent conflict of rights. Constitutionally, our Charter guarantees the fundamental freedom of conscience and religion. Our human rights statutes in each province prohibit discrimination on the basis of religion in a variety of situations, including employment. These provisions would lead us to think that a body such as the College of Physicians and Surgeons, which operates under provincial law and is also subject to the Charter because it is a body created by statute, would have to uphold these rights. The College, therefore, should be expected to support physicians who, for reasons of conscience or religious belief, turn away patients seeking prescriptions or procedures that violate those beliefs.
But our Charter also contains a guarantee of equality before the law. And our human rights statutes also prohibit discrimination on the basis of sex in services commonly available to the public. It may still not be obvious why these sections put at risk the rights of physicians to follow their conscience. After all, sterilization, abortion and contraception are all legal in Canada, but that does not settle the moral debate about them. Nor, despite all the comments from politicians lately, has our Supreme Court of Canada ever established a woman’s right to unrestricted abortion access.
There are two factors that create a conflict here. The first is the Canadian courts’ unreserved adoption of the concept of “substantive equality.” This term is used to make a distinction with what is called “formal equality” and it is a key concept in Canadian human rights law. The underlying idea is that a precept, rule or law may appear on its face to be non-discriminatory, but in fact impacts members of a particular group differently. For example, suppose an employer decides that all employees must be able to work a Saturday shift each month. This rule is, on its face, neutral, affecting all employees the same. However, it is no problem for Janice, who is a Christian and holds Sunday as a Sabbath day.
But it is a problem for Jane, who is a Jew and observes Saturday as the Sabbath. The rule appeared to treat everyone equally (formal equality) but actually affected Jane adversely because of her religion. The rule would be held by the courts to discriminate against Jane on the basis of her religion. To be legally acceptable, the employer would have to change the schedule to accommodate Jane so that it would not impact her adversely, compared to its effect on other employees.
The idea of substantive equality is an important one. It prevents seemingly neutral rules from being applied to disadvantage the groups who are protected by human rights legislation or under the Charter’s equality rights. But, unfortunately, having adopted the idea, courts have never refined its application. It has become axiomatic that the impact of the action is examined and divergent impact on groups protected by human rights legislation is the first, crucial step in finding the action constitutes discrimination contrary to law.
In the case of physicians, refusals to prescribe contraceptives or perform abortions or sterilizations impact women differently than men. It is women who get pregnant and have the babies. Thus, the argument is made, the refusal discriminates against women and since sex is a protected characteristic under human rights legislation, physicians who refuse these requests are illegally discriminating. Now we have a conflict between the rights of women and the rights of the physician.
The second factor in creating this problem is the approach courts take when two rights apparently conflict. The Supreme Court of Canada has stated numerous times that there is no “hierarchy of rights,” meaning that one right does not automatically trump another. However, in the case of conflict, the courts state that they must “balance” the rights at stake. In practice, however, the analogy of a balance can convey two possibilities: the first, being to hold rights in balance, which would mean to keep two rights equal, as the scales of justice are held in balance. But, the second possibility is to see rights placed on a balance scale that weighs one to be heavier than the other. The second approach is more descriptive of how the courts have treated competing rights. This is very consistent with our legal system in which, once a matter goes to court, one side will win and the other will lose. And, generally, equality rights have been seen to weigh more heavily than other rights, particularly freedom of conscience and religion, which courts often treat as a private matter with no social importance.
The result of the combination of these factors is that a physician’s right to conscience can lead to actions that the law will characterize as illegal discrimination; and weighed against this illegal discrimination, the rights to hold and practice religious beliefs may be considered of lesser significance. There are several problems with this picture and they are symptomatic of the general difficulties we have created for ourselves in trying to apply the Charter and human rights laws. These are the problems that have led to a general attitude of “my rights against your rights” and the use of the courts as canvass for activist groups to attempt to redraw our social landscape, not through the ballot box, but through litigation.
The first of these problems, as I have suggested, is the indiscriminate use of the test of substantive equality as a measure of the discriminatory impact of a rule or action. Is there no difference between a rule made, for instance, by an employer, that could be quite easily adjusted or adapted to protect vulnerable minorities and an action taken by a person impelled by conscience or religion and changed only at great personal cost? Is there no difference between asking an employer
to adjust its work schedule to accommodate a Saturday Sabbath observer or asking a pharmacist to dispense a morning-after pill? In both instances, a substantive equality argument would compel a decision that there is a prima facie case of illegal discrimination; but the motivations for the rules are quite different. Perhaps we need to examine the scope of when a substantive equality analysis should be used to establish discrimination.
The second problem is with the idea that a court’s job is to balance competing rights. The result of this is all too likely to be that one right consistently “wins” while another consistently “loses,” based upon how the judge or tribunal assesses the significance of the right. Instead, I suggest, courts need to recognize a relational aspect to human rights. We have human rights because of our inherent dignity as human beings. That means we all have human rights, or none of us does. So if I assert a right that, to exist, must in fact extinguish your right, I am denying you your human dignity and denying therefore that human rights exist at all. This destroys the foundation of my claim to a right.
To avoid this problem, a court’s role should be to interpret and analyze the operation of the two rights such that each can leave room for the other to operate. In other words, my right cannot extinguish your right; it must leave space for your right to exist, just as your right must leave space for mine. This relational approach leads not to allowing one right to outweigh the other on this mythical balance scale, but to draw a boundary between rights where each can have a place to operate.
How would these principles affect the rights of a physician to act in accordance with her conscience in issues of abortion, contraception and, eventually perhaps, assisted suicide? First, we should look at the basis of the physician’s decision and the connection between the decision to refuse a procedure and the arguably discriminatory impact. In the case of the Saturday work schedule to which I earlier referred, the motivation for the rule is likely an economic decision and may even be an attempt to treat employees fairly. Adjusting it does not defeat the purpose of the rule, and a compromise is possible. In the case of a physician refusing, for example, to perform an abortion, the refusal is required by the physician’s conscience; adjustment or compromise is not possible without defeating the entire purpose of the refusal.
Second, if we look at this in a relational context, we can see that rights to legal medical procedures can indeed coexist with right of conscience. It is by no means necessary that every physician be prepared to perform every procedure. Indeed, given specialization, we know that there are many reasons why a physician might not perform certain operations or treat certain problems. That does not cause a real problem for the medical system because there are other doctors who are available to do the work. The situation is analogous. To have a right to access to legal medical procedures does not compel the requirement that every physician be prepared to perform them. Indeed, to assert a right that every physician should be required to perform every procedure extinguishes the physician’s right of conscience; but all that is necessary to allow the right of conscience to flourish is to accept that the right to access exists as long as there are reasonably available physicians who do not object. Both rights, then, can be recognized and can operate together. This is the solution to this problem and to many others in human rights law.
A final problem with current approaches to human rights law also relates to the tendency of the courts to weigh more heavily equality rights than rights of conscience. The assumption is that equality rights are a fundamental underpinning of our social system; while rights of conscience are merely private affairs. However, this ignores freedom of conscience and religion as a fundamental building block of the democratic society. We all have belief systems and make moral judgments on the basis of those systems. This is true of the pro- life groups and of the pro-choice groups, for example. Democracy requires open and free debate about policy issues. If certain belief systems are not protected, they are ultimately excluded from the public debate; if many belief systems are excluded, democracy itself becomes a farce. Freedom of conscience is not a mere private luxury. It is a key requirement of a democratic system because to be a democracy, a system must be open, inclusive, and capable of change.
We have boxed ourselves into a very difficult spot in our thinking about human rights and, particularly, about freedom of conscience and religion. Our legal system is becoming crushed with inconsistencies and conflicts to which we can find no solution in our current approaches to the problem. The inconsistency is becoming very clear in the abortion debate. Canada has no law regulating abortions, which therefore are legal up to the moment of birth. A good part of the Canadian population is shocked by the idea that a baby could be aborted a few hours or minutes before it could be born as a healthy child. The pro-choice side has responded to calls for legal limits on late-term abortions by asserting that in Canada, medical ethics would allow such an abortion only in the gravest of threats to the mother’s life.
Yet, this assertion provides an interesting contrast with the assertion from the same groups that a physician who, for reasons
of conscience, would not perform any abortions is discriminating against women and should be disciplined. Refusing to perform late-term abortions, which is apparently acceptable medical ethics, is equally discriminatory by the same arguments. There is no legal difference in Canada between the two. Physician A will not perform any abortions; physician B will not perform abortions after X date. Both decisions impact women differently from men. Neither has sanction in law. Both, indeed, are a pure result of conscience. But one results in a physician being brought before her accreditation body for discipline or before a human rights tribunal for punishment while the other is hailed as a reason why we do not need regulation of abortion in Canada.
This inconsistent and incoherent thinking about human rights must be revisited. Lawyers are taught that we need a society ruled by laws. It used to be said that old English Chancery courts operated not by known rules but “by the length of the Chancellor’s foot” meaning an unbridled discretion that was unpredictable and therefore unjust. Human rights law is rapidly becoming a forum for unbridled discretion where tribunals and judges can force their own moral systems on others. We need to rethink this entire structure. What better place to start than with the physician’s right to conscience.
Mary Anne Waldron, Q.C. is a professor in the Faculty of Law at the University of Victoria, BC. She has served as both an Associate and Acting Dean. From 2000 to 2009 she served as Associate Vice President Legal Affairs for the University of Victoria. Her teaching interests include Contracts, Commercial Law, Legal Skills and Legal Ethics. She has twice received the Faculty of Law’s Terry J. Wuester Teaching Award. Her research interests include freedom of conscience and religion. From 2009 to 2010, she was a visiting fellow at the University of Victoria’s Centre for Studies in Religion and Society. Her book, Free to Believe: Rethinking Freedom of Conscience and Religion in Canada was released by University of Toronto Press in 2013.