Effective referral becomes a battleground
This week three judges of the Ontario Court of Appeal unanimously upheld a lower court ruling that physicians can be forced to facilitate procedures they find morally objectionable, including euthanasia and assisted suicide, by connecting patients with willing providers (“effective referral”).
The Court of Appeal judgement concerned a 2018 decision by the Ontario Divisional Court that had been appealed by the Christian Medical and Dental Society of Canada and others. The litigation was a response to a compulsory “effective referral” policy imposed by Ontario’s state medical regulator, the College of Physicians and Surgeons of Ontario.
The Protection of Conscience Project, Catholic Civil Rights League and Faith and Freedom Alliance jointly intervened at trial and in the appeal in support of freedom of conscience.
But both the Divisional Court and the Court of Appeal treated it as a matter of freedom of religion rather than freedom of conscience.
“To the extent the individual appellants raise issues of conscience,” said the Court of Appeal, “they are inextricably grounded in their religious beliefs,” so that, “at its core, the appellants’ claim is grounded in freedom of religion.”
“However, the Court did not do this, so the arguments still stand, and they can be raised again in another appropriate case.”
The decision demonstrates that the judges adopted the view of the College that euthanasia, assisted suicide, abortion, contraception, sterilization, sex change surgery, etc. are acceptable forms of medical treatment or health care. They further noted that abortion, euthanasia and assisted suicide “carry the stigmatizing legacy of several centuries of criminalization grounded in religious and secular morality.”
The Court of Appeal also supported the College’s assertion that objecting physicians unwilling to comply with the demand for effective referral could change their scope of practice and move into fields like “sleep medicine, hair restoration, sport and exercise medicine, hernia repair, skin disorders . . . obesity medicine, aviation examinations, travel medicine . . . administrative medicine or surgical assistance.”
Although this effectively excludes pro-life doctors from the practice of their profession and pro-life students from entering medicine, the court was utterly unsympathetic. “The appellants have no common law, proprietary or constitutional right to practice medicine,” says the ruling. “As members of a regulated and publicly funded profession, they are subject to requirements that focus on the public interest, rather than their interests. Even taking the burden imposed on physicians at its most onerous, as framed by the appellants, the salutary effects of the policies still outweigh the deleterious effects.”
Lawyers for the College described the ruling a “victory for patients in Ontario.”
“The court has recognized the importance of ensuring patients get access to the care they need,” they said. “The court noted the extensive expert and patient evidence establishing the harm that would result to vulnerable patients in the absence of the effective referral requirement, and that the policies represent a compromise; they are not the optimal solution for patients either.”
Bioethics commentator Wesley J. Smith was scathing in an article in the National Review. “Forcing doctors to be complicit in the taking of human life or face potential civil/professional consequences is despotism.” He said that Canadian doctors forced out of their jobs would be welcome across the border in the United States.
The appellants have 60 days to consider and appeal to the Supreme Court of Canada.
Michael Cook is editor of BioEdge
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