Dispelling myths about Alberta’s conscience rights bill

20 Nov 2019 Dispelling myths about Alberta’s conscience rights bill

 

Bill 207, tabled by Alberta MLA Dan Williams, now faces fierce opposition. The bill proposes protections for health care providers’ freedom of conscience. It is scheduled for a vote at second reading on Monday, November 25. It deserves to pass and proceed to committee for further review and possible improvements.

 

Bill 207 does not threaten access to health care

The primary line of attack is that Bill 207 threatens “access to health care”. “Imagine … a patient being denied access to a therapeutic abortion even if the woman’s life is in danger,” an Edmonton Journal op-ed intones (Michelle Jung, Nov. 19). I doubt anyone could find one example of that happening in Alberta. And I don’t know of any pro-life ethicist who says measures that are necessary to save a mother’s life should not be taken if they harm the baby.

Despite searching for years for such scenarios (or far less egregious ones) to bolster its case for its new effective referral policy, the College of Physicians and Surgeons of Ontario found none. In a province with over three times Alberta’s population, the CPSO could not find one person who ever failed to obtain medical service or suffered undue delay because of conscientious objection. As the Ontario Court of Appeal stated (2019 ONCA 393, at paragraph 42), there was “no direct evidence that access to health care is a problem caused by physicians’ religious objections.”

 

Bill 207 is not a license to discriminate

Another closely related line of attack is that Bill 207 is a “license to discriminate”. It is a cynical ploy at worst, and grossly misleading at best. “Imagine if the only emergency physician in town refused to help you because you don’t attend his church,” an op-ed in the Calgary Herald warns (Sharon Polsky, Nov. 14). Really? Has anyone ever heard of a doctor refusing treatment to someone because they don’t attend his church? Sharon Polsky goes on to suggest that at least some health care providers will leave people to commit suicide or die of AIDS if Bill 207 passes. Seriously. This is a board member of the Rocky Mountain Civil Liberties Association, of all things, in a prominent Alberta newspaper.

The insinuation that religious health care workers are ready to let patients suffer or die if they disapprove of the latter’s life choices is both ridiculous and demeaning. Alberta’s politicians need to see through such fearmongering and stand up for people whose faith motivates them to care for the sick and suffering. Let’s change the narrative on religious medical professionals.

And besides, Bill 207 would not excuse a doctor for letting someone die or for refusing to provide treatment because of someone’s religious or sexual identity, as some are insinuating. Rather, the bill is designed to permit physicians to forego participating in morally objectionable services, without neglecting their professional duties to the patient. In a genuine case of unlawful discrimination (such as simply refusing to help a patient because of their sex, race, gender identity, etc.), a patient could bring a human rights complaint to a Human Rights Tribunal. Bill 207 would not protect a doctor in such a scenario.

 

Misunderstanding the Ontario Court of Appeal ruling on freedom of conscience

Bill 207’s opponents – and its doubters – point to the Ontario Court of Appeal’s 2019 decision not to strike down a policy adopted by the College of Physicians and Surgeons of Ontario which requires Ontario doctors to give an “effective referral” (refer a patient to a willing and available provider). There is considerable confusion about what that court decision means for Alberta. For one thing, it’s an Ontario ruling, meaning it isn’t binding on Alberta. But more importantly, the ruling does not say regulatory bodies must require effective referrals. Rather, it merely defers to the College’s decision to choose that policy, saying it falls within a range of reasonable policy choices. I think the Court’s decision deserves the criticism it has attracted for too breezily justifying the College’s violation of freedom of conscience – but in any event, the Court was not ordering anyone to violate physicians’ freedom of conscience.

Mr. Williams himself, in an otherwise excellent op-ed defending his bill, says the Ontario Court “ruled that doctors must provide an effective referral”, but does not explain that it was Ontario’s College of Physicians that imposed the effective referral requirement and leaves the impression that the Court mandated it. Even if the Ontario court ruling were binding on Alberta, it would be no obstacle to enacting or enforcing Bill 207. Bill 207 would simply be a different – and in our view, far better – way of balancing the Charter’s first fundamental freedom with competing policy interests.

 

Bill 207 is not redundant or pointless

Another, more moderate criticism is that Bill 207 is redundant, since the College of Physicians and Surgeons of Alberta already respects its members’ freedom of conscience. We agree that the CPSA’s policies in this respect are commendable and far better that Ontario’s. Ontario’s doctors need a bill like this far more than Alberta’s doctors do.

However, without Bill 207, there is nothing to prevent Alberta’s medical regulatory bodies from caving to pressure from Dying With Dignity or the Abortion Rights Coalition of Canada and change their policies, even if such a change is not needed to ensure access to desired services. If passed, Bill 207 would prevent that from happening. Bill 207 is also particularly relevant at a time when assisted suicide is being pushed into health care, a “service” which contradicts the Hippocratic Oath and which many doctors believe is antithetical to health care.

People also argue that the Charter already protects freedom of conscience, so we don’t need legislation. But the courts are not the only branch of government responsible for protecting fundamental freedoms. The Charter itself was a legislative enactment, after all. And it is perfectly normal and appropriate for a legislature to enact laws to protect Charter rights in specific contexts. The Charter protects the right to a fair trial, but we also have laws to govern court procedures. What if a doctor or nurse has nothing but the Charter to rely on and her regulatory authority demands that she violate her conscience? She would have to choose between giving up her job, violating her conscience, and engaging in long, prohibitively expensive Charter litigation against a powerful, well-funded agency.

Obviously, the argument that Bill 207 is redundant undermines the argument that it is a grave threat to access to health care. If Bill 207 fits with what Alberta is already doing – not penalizing health care providers for not violating their core moral beliefs – and everything is working fine and people are getting the services they seek, then what’s the problem?

 

Bill 207 can be improved at committee if it passes second reading

MLAs who support the idea of statutory protections for freedom of conscience but have concerns about how Bill 207 is currently worded should – at this stage – vote for it anyway. The next vote determines whether the bill dies or goes to committee where it can be carefully reviewed, clause by clause, and clarified or improved.

Bill 207 may be worded slightly more broadly than necessary to achieve its goal, as some have pointed out. It should be enough that it protects health care providers’ right to act in accordance with their sincerely held moral beliefs, without also referring to their “cultural values” as it currently does. It would make sense to avoid giving the impression that the Bill is about protecting mere personal preferences, when it’s really about core beliefs.

The College of Physicians and Surgeons of Alberta has proposed several amendments, including:

  1. That the section of the bill listing its objectives include: “to respect the rights of patients to access health care services”;
  2. Require health care providers to provide “timely access to resources that provide accurate information about all the available health care services” (not the same as referral); and
  3. That health care providers not refuse to provide a service if refusal “would result in an imminent risk of death”.

These proposals are worth discussing and may allay the concerns many have with the bill, but amendments cannot be made until after the bill passes 2nd reading.

The fact that the CPSA is engaging constructively with Bill 207 and suggesting amendments should be an encouragement to those who are unsure at this point if Bill 207 should be law. The bill’s first draft provides a good place to start, and MLAs can work together to improve it, if they don’t cave to myths and fear-mongering before they get the chance.

 


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