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Health Law Blog

Doctors’ Religious Beliefs: Round Two

May 13, 2015

In a blog post last August, I discussed the heated debate that was taking place regarding whether doctors should be allowed to refuse treatment on moral or religious ground. At that time, the College of Physicians and Surgeons (CPSO) jumped into the fray, asking the public, health care professionals and other stakeholders: Do you think a physician should be allowed to refuse to provide a patient with a treatment or procedure because it conflicts with the physicians religious or moral beliefs?

Having asked and been answered, the CPSO subsequently sifted through the responses, weighed the arguments and, on March 6, 2015, addressed the matter in the policy document, Professional Obligations and Human Rights. In a superb demonstration of their skill at walking a fine line, the college’s workaround for those situations when a physician’s religious and moral beliefs are at odds with a patient’s request and needs is to refer the patient to another physician who is able and willing to be of service. (When no other physician is available in an emergency situation, all doctors are required to offer treatment.)

Case closed. Or so you would think. Yet, with the ink barely dry on the college’s policy document, the Christian Medical and Dental Society of Canada, supported by the Canadian Federation of Catholic Physicians’ Societies plus additional individual doctors, is asking the Ontario Superior Court to declare the policy infringes on their freedom of conscience. They are asking the court to declare that portions of the policy breach sections of the Canadian Charter of Rights and Freedoms. In other words, these physicians believe that referring is tantamount to facilitating; not only do they not want to perform certain procedures, for example, prescribing birth control or carrying out an abortion, they don’t want to tell you where you can go to have them done.

Put another way, these physicians are asking for the right to discriminate, picking and choosing when and under what circumstances they will provide services which are, by the way, paid for by a publicly funded health care system. Despite the fact that there are clear regulations and laws that have been painstakingly designed to recognize and balance the rights of all Canadians, this group is asserting that they have the right to opt out and therein lies the rub: if the court allows these Christian medical professionals to opt out, who is next? Should pharmacists be allowed to opt out of dispensing certain types of drugs if it goes against their beliefs? Should Jewish legal aid lawyers be allowed to opt out of working with Muslim clients? Or, as we are currently seeing in Indiana, should restaurant owners be allowed to opt out of serving gay people?

As I stated last August, while doctors do have the right to their religious beliefs, they do not have the right to be a doctor. That is a privilege that carries responsibilities and rights. Unfortunately for these Christian doctors, one of the rights is not the discretion to opt out.

Testimonials

Several years ago I was fortunate enough to have been selected as a Tremayne-Lloyd Fellow here at Western Law. I used the funds to finish a book and to begin work on a new one. It dawned on me far too late that I had never thanked you for that splendid gift. The new book is to be published by Harvard Press in 2010. The TTL Fellowships provided ritual seed capital for this project, which required me to spend a good deal of time and money at The National Archive in Washington. Again, with many thanks.

R. W. Kostal Professor of Law and History

Tracey Tremayne-Lloyd Health Law