Written by: Daphne Gilbert (she/her).
Edited by: Etienne Maes (he/him).
In the never-ending battle to secure safe, accessible, free, and unstigmatized abortion services, the conscientious and religious objections by physicians who refuse to participate in the “abortion decision” imperils our goal.
Section 2(b) of the Canadian Charter of Rights and Freedoms protects an individual’s right to freedom of religion and conscience. In its history, this section of the Charter has protected individuals from state imposition of religion (prohibiting mandatory Christian school prayer, for example) and has required accommodations from government to allow everyone to observe their faith and practice their beliefs (allowing employees to refuse to work on their Sabbath, for example). Both aspects of this protection can be limited however, by section 1 of the Charter which gives governments an opportunity to argue that the particular law that limits a practice or belief is necessary for a greater societal good.
It is against this background that the tension between ensuring widespread access to abortion and respecting a physician’s personal views about abortion must be reconciled. The Charter applies to provincial and federal governments and anyone delivering government services. Since Canada’s healthcare system is publicly funded by taxpayers, physicians are subject to the Charter in their delivery of care to patients. Across the country, the provincial Colleges of Physicians and Surgeons that regulate the practice of medicine have passed policies to guide physicians as to how to balance their professional obligations, their religious or conscientious beliefs and the rights of their patients.
The provincial College of Physicians and Surgeons that regulate the practice of medicine have passed policies to guide physicians as to how to balance their professional obligations, their religious or conscientious beliefs and the rights of their patients.
Every provincial College of Physicians and Surgeons recognizes that physicians have the right to limit the health services they provide. Except in urgent circumstances, physicians are not required to provide abortion services. The provinces differ somewhat in how far a physician must go in protecting the rights of patients with whom they have a value-based disagreement.
In Ontario, for example, the policy on Professional Obligations and Human Rights outlines the expectations for any physician who has a religious or conscientious objection to a proposed treatment. It requires that a physician clearly communicate to their patient that the objection is based on their own beliefs and is not clinically-based. The physician cannot withhold any information about the existence of a treatment option. Most significantly, the Policy requires that the physician make an “effective referral” to a non-objecting colleague. Effective referral is defined as “taking positive action to ensure the patient is connected to a non-objecting, available, and accessible physician, other health-care professional, or agency.” Furthermore, the Policy outlines:
14. Where physicians are unwilling to provide certain elements of care for reasons of conscience or religion, they must provide the patient with an effective referral.
a) Physicians must provide the effective referral in a timely manner to allow patients to access care.
b) Physicians must not expose patients to adverse clinical outcomes due to a delayed effective referral.
15. Physicians must not impede access to care for existing patients, or those seeking to become patients.
16. Physicians must proactively maintain an effective referral plan for the frequently requested services they are unwilling to provide.
In the case of abortion services for example (including counseling a pregnant person as to all of the options in the event of a pregnancy, discussing abortion if the patient raises it, advising as to the types of abortion possible for the gestational age of the fetus, prescribing abortion medication or providing information on where/how to obtain a surgical abortion), an objecting physician in Ontario would have to advise the pregnant person that they are unable to fully counsel as to pregnancy options because they have a religious or conscientious objection to abortion. The physician is prohibited from passing any judgment about the patient’s wish to discuss abortion or about abortion itself. The physician must proactively refer the patient to a colleague who they know is non-objecting and can fully counsel the patient. The referral must be timely and in good faith. Note in particular section 16 which requires physicians to have an ongoing referral plan in place for frequently requested services they are unwilling to provide. In an accompanying document entitled “Advice to the Profession”, the CPSO offers specific advice as to the meaning and content of an Effective Referral. It advises that an effective referral requires “positive action” from the objecting physician to ensure the patient is connected to a colleague who can fully engage in the treatment discussions and plans.
Ultimately, the CPSO expects that objecting physicians will provide any service, including abortion, if the situation is urgent. Section 17 states: “Physicians must provide care in an emergency, where it is necessary to prevent imminent harm, even where that care conflicts with their conscience or religious beliefs.”
Ontario has the “gold standard” of policies that protect the rights of patients while also respecting the rights of religious and conscientious objectors. The policy was recently challenged by a group of objectors in a case that went to the Ontario Court of Appeal. In Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, the Court unanimously sided with the CPSO and upheld the constitutionality of the policy on Professional Obligations and Human Rights. The Court contextualized the case in two significant ways. First, it described family physicians as “gatekeepers” and a “key point of access” to almost all medical services. It is extremely difficult to find a family physician in Canada, and for most patients, their family doctor is key to navigating a complex system of specialists and follow-up treatment. Effective referral policies protect patients who depend on their family doctor for coordination of care and initial counselling and information provision. The second important context was the nature of the services to which the physicians object. The list included medical assistance in dying (MAiD), abortion, contraception (including emergency contraception, tubal ligation, and vasectomies), infertility treatment for heterosexual and homosexual patients, prescription of erectile dysfunction medication, and gender re-assignment surgery. The Court acknowledged that these issues are difficult for patients to raise and noted that it “is impossible to conceive of more private, emotional or challenging issues for any patient”. Abortion and MAiD in particular, “carry the stigmatizing legacy of several centuries of criminalization grounded in religious and secular morality.” The combination of stigma and the vulnerability of patients in need of the services heightens the importance of the family physician’s gatekeeper role. The Court found that an effective referral policy is the best way to achieve the proper balance of rights.
Because healthcare is a provincial responsibility under the Constitution, there is a patchwork of policies across the country. Nova Scotia has one that is very similar to that in Ontario, requiring physicians to make an effective referral, defined as: “taking positive action to ensure the patient is connected to a non-objecting, available, and accessible physician, other healthcare professional, or agency.”
Other provinces in Canada do not have the same robust protections for patients. In Alberta for example, physicians are only required to refer a patient to “a resource that will provide accurate information about all available medical options”. This is far less protective of patient rights than the effective referral requirement in Ontario. It would only require a physician to, for example, point a patient to a website or 1-800 number.
In British Columbia, a physician does not have to have a proactive referral plan in place. The BC policy states that the obligation “includes advising patients that other physicians or surgeons may be available to see them or suggesting that the patient visit an alternate health-care provider. Where needed, registrants must offer assistance and must not abandon the patient.”
Even though Canada is the only country in the world without a criminal law regulating abortion, significant barriers still impede access.
It is vital to ensure that a physician’s values do not guide a treatment plan for patients. Abortion is a stigmatized service that is already difficult to access, both emotionally and practically. Even though Canada is the only country in the world without a criminal law regulating abortion, significant barriers still impede access. If a pregnant person lives outside a major city or in the North, travel for a surgical abortion will likely be required with all of the costs associated, including days off work and hotels. Medical abortion may offer some relief but it is only permitted up to 11 weeks gestation. The most pressing barrier to access, for all abortions, is the lack of physicians who are willing to be providers.
If you are a medical student, family physician, or ob-gyn, we need you to consider becoming an abortion provider. Abortion is an equality issue: pregnant people deserve the same access to legal medical services as all other people. Barriers to abortion are sex discrimination as only those with a female reproductive system get pregnant. Ontario and Nova Scotia’s policies on religious and conscientious objection offer robust protections to patients while accommodating the rights of physicians. A proactive effective referral that immediately connects a patient to a specific, willing, non-objecting physician is the bare minimum of what should be required. Ideally those who object to the kinds of services listed in the Ontario Court of Appeal case, including abortion, would not choose family medicine as their specialty. Ideally, family physicians would embrace their role as gatekeepers and vital first points of contact and be able to fully engage with patients in counseling and the provision of medical services. Ideally, abortion would be safe, accessible, free, and unstigmatized. This is the goal Canadians must continue to advocate.
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