New-look Inquisitions want to call doctors in for a little chat

This summer, Canada’s
well-known doctor shortage almost got worse. A portion of doctors in
Canada’s largest province started scouting for jobs elsewhere,
expecting that Ontario would soon require them to violate their
conscience. The College of Physicians and Surgeons of Ontario, the
licensing body for Ontario doctors, had drafted a policy that
required doctors to refer for procedures with which they disagreed on
moral or religious grounds.

public reaction was loud and furious. Religious groups and opinion
writers were quick to point out the authoritarian nature of such a
policy. But the decisive blow came from within the profession itself:
the Ontario Medical Association, the professional organization of
Ontario’s doctors, released a
scathing condemnation
of the policy and openly urged the College
to abandon it. The OMA said: “We believe that it should never be
professional misconduct for an Ontarian physician to act in
accordance with his or her religious or moral beliefs.” 

In the
end, the College gave in and enacted a vague and watered-down version
of the original draft. The storm passed over. But in the ensuing
calm, Ontario doctors still have grave reason for concern. The public
debate revealed that the College of Physicians had produced the
policy in response to suggestions by the Ontario Human Rights
Commission. This notorious organ had indeed provided the College with
two detailed submissions which asked the College to adopt the OHRC’s
troubled understanding of doctors’ rights and duties.

OHRC clearly expects doctors to inform patients about all legal
treatments, and to refer for these treatments regardless of their
moral or religious objections. In their view, a doctor’s “denial
of services or refusal to provide a woman with information relating
to contraception or abortion… would be discriminatory”. In fact,
the OHRC has entirely reconstructed the doctor’s role. It says: “It
is the Commission’s position that doctors, as providers of services
that are not religious in nature, must essentially ‘check their
personal views at the door’ in providing medical care.” So much
for conscientious objection.

citizen can bring a human rights complaint against any doctor in
Ontario, at public expense – and the doctor, who must pay out of
pocket for his own defense, can brace for judgment by the OHRC’s
new standard. Ontario doctors are not out of the woods. And the fire
is spreading. The doctors’ college of Manitoba has indicated plans
to model its own policy after the Ontario College’s first draft,
and the doctors’ college of Alberta is circulating a new draft
policy that may indicate a duty to refer.

aren’t heating up only in Canada. In the United States, a fierce
debate is being waged about proposed federal regulations that would
protect doctors who work in federally funded medical facilities from
being forced to violate their conscience. The “Provider
Conscience Regulation
” issued by the US Department of Health
and Human Services is intended to protect doctors who object to
abortion or sterilization – some also believe the language could
extend to contraception.

see this bill as a needed response to the tightening anti-conscience
stands of prominent medical organizations like the American College
of Obstetricians and Gynecologists. It is also a response to the
emergency contraceptive laws that have been passed in 16 states,
which require hospitals to provide sexual assault victims with
information about emergency contraception and in some cases, to
dispense it on demand. In the
words of HHS Secretary
Mike Leavitt, “Doctors and other health
care providers should not be forced to choose between good
professional standing and violating their conscience.”

government of the state of Victoria in Australia may not agree.
There, the lower house of parliament has just passed a bill that
would require doctors to refer for abortion regardless of their
religious or moral objections. If the bill gets through the upper
house later this month, Victorian doctors could be stripped of their
freedom of conscience by Christmas. Catholic hospitals are
considering shutting down their maternity and emergency departments
rather than comply with this law. 

in Canada, the Australian medical profession is split on this issue.
The Royal Australian and New Zealand College of Obstetricians and
Gynecologists supports
the bill
, but the Australian Medical Association has taken a
stand against it. In a letter to Victoria’s premier the AMA
Victoria president said: “Respect for a conscientious objection is
a fundamental principle in our democratic country, and doctors expect
that their rights in this regard will be respected, as for any other

are the intellectual roots of this assault on the conscience rights
of physicians? Until only a few years ago, the popular opinion of
conscience seemed to be favourable. Many proudly appealed to their
conscience in using the Pill to prevent overpopulation or to avoid
the Vietnam War; while theologians cited their conscience as they
developed dissenting teachings. But these days, when conscience comes
up in the media, the debate is mostly about whether its exercise
should be suppressed. Why has the conscience become unpopular?

reason may be that objective truth and morality are weakening their
foothold on our society. In a world where conscience is believed to
reflect only a subjective personal ethics, where an individual’s
right and wrong is considered to have no truth value beyond the
individual’s own mind, it makes supreme sense to suppress the
capricious exercise of arbitrary personal values. Anything else would
sink such a radically autonomous world into chaotic anarchy. Social
order, in this kind of world, can only be achieved by the uniform
enforcement of legally recognized rights.

In the
medical field specifically, conscience may also have become more
inconvenient because over the past few decades, courts and
governments have legalized procedures that many doctors believe to be
deeply unethical. The result: an exponential escalation of conflict
between the law and doctors’ consciences, and so between patients
and doctors. If the only doctor in a small town refuses to prescribe
emergency contraception, a woman may well lose her window of
opportunity to use it. The law says this contraception is her legal
and human right – while from the doctor’s perspective, to
prescribe or refer would be to participate in the killing of an
innocent human being. This is a zero-sum game: there is no good
compromise. Someone’s got to lose – today, it is the doctor (and
the embryo).

doctors may be facing more pressure to comply because their role in
society has quietly but dramatically shifted. With the advent of the
Pill, abortion and reproductive technologies, doctors have come to
play a crucial role in helping millions of people plan and direct
their reproductive lives. This is not the traditional role of
doctors, who have always been concerned with sickness and disease.
The state has now made them the exclusive providers of elective
services that are based not on medical need but on personal

reproductive services are self-prescribed, meaning that it is the
patient who decides whether they are “needed”. The doctor’s
expected role is that of a mere technician who administers these
services on demand. Since doctors are the only people with a license
to provide these services, legal scholars like R. Alta Charo now
argue that the medical profession is “a kind of public utility
obligated to provide service to all who seek it”. This is not the
kind of medicine that many doctors signed up for when they entered
medical school.

irony is that doctors are being subjected to a viewpoint Inquisition
by the very society that constantly pays homage to tolerance. That
comes as no surprise to many who have already experienced the
intolerance of some parts of our society for truly divergent views,
especially those that challenge today’s reproductive freedoms.
There is still some lip service to the importance of conscience –
but in the end it is bulldozed as a necessary sacrifice for the new
social agenda.

much is obvious even from many of the various opinions expressed last
week before the President’s College on Bioethics in Washington.
This eminent body is now considering the conscience issue, and has
just published a number of fascinating presentations on its website.
Last week, Dr Ann Lyerly, Chair of the Ethics Committee of the
American College of Obstetrics and Gynecology, began her presentation by acknowledging that many people believe in the critical value of a
doctor’s conscience, “independent judgment” and “moral
integrity” for good medicine, and in the importance of conscience
for “democracy, bioethics, humanity”.

then she went on to address what to her are clearly more important
concerns. The first was the health and welfare of the patient.
Non-controversial? She described how women’s welfare was reduced
when they were denied sterilization during a C-section, or denied
emergency contraception after rape. Lyerly’s second concern was
“fairness”, which to her meant not placing a “disproportionate
burden on disenfranchised women”. Her example: lesbians should not
be refused artificial insemination. Lyerly’s final concern was
“respect for autonomy”, which she defines as respecting the
“bodily dominion” of women by not refusing them certain
treatments such as abortion. In her opinion, the freedom of
conscience of doctors needs to be “balanced” (read: limited) by
these considerations.

desire to limit doctors’ conscience rights in order to ensure easy
access to reproductive services for patients appears to be gaining
traction. Even if their conscience rights do not end up limited by
law, a number of physicians’ professional and regulatory bodies are
being attracted to such policies. Might things get worse before they
get better?

thing is clear: doctors are not the only ones who will have to fight
for their conscience rights. We’ve already seen some of the same
arguments made about pharmacists, with regard to their right to
refuse dispensing the morning-after pill. In Canada, the Ontario
Human Rights Commission has also stated that marriage commissioners
must “check their personal views at the door” – they are
expected to perform gay marriages regardless of personal views about
homosexuality. In fact, the Commission seems to believe that all
providers of “secular services” have this duty to leave their
morality at the doorstep of their workplace.

services… like say, medicine, education, law, and most other areas
of ordinary work. If medicine falls, these might just be the next

Singh graduated from Harvard Law School in 2003. She works for a
nonprofit organization in Ottawa, Canada.


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