National Affairs Rory Leishman
On Jan. 26, the College of Physicians and Surgeons of Ontario decreed that any physician who declines for reasons of conscience or religion to provide physician-assisted death upon request must promptly refer the patient to a readily available physician who has no compunction about killing a patient or assisting a patient in committing suicide.
A similar rule is also in effect in Saskatchewan and Quebec. In an attempt to quash these authoritarian edicts, the Christian Medical and Dental Society has appealed to the courts for a ruling that compulsory referrals for euthanasia violate the rights of pro-life physicians to freedom of conscience and religion in section 2 of the Canadian Charter of Rights and Freedoms.
Will the Supreme Court of Canada agree? Not likely.
Fifteen years ago, the judiciary did nothing to protect Scott Brockie, an evangelical print-shop owner, from attack by the Ontario Human Rights Commission, which fined and hounded him out of business for refusing on grounds of conscience to print promotional materials for the Canadian Lesbian and Gay Archives. Today, the courts will probably also do nothing to protect the inalienable right to conscience of pro-life physicians.
Regardless, the judiciary should keep out of such disputes. It is up to elected legislators, not unelected judges, to determine public policy on issues such as the exemption of pro-life physicians on grounds of conscience from any law or regulation of general application that would implicate them, directly or indirectly, in the deliberate killing of a patient. In the words of the late, great justice Antonin Scalia of the Supreme Court of the United States: “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”
Scalia and his Supreme Court colleagues addressed the issue of conscience rights most recently in the 2014 Hobby Lobby case, which dealt with a mandatory rule imposed by the Obama administration in the Affordable Care Act (Obamacare) that requires all employers, regardless of conscience, to provide health coverage for abortifacient contraceptives such as the morning-after pill. The pro-life family of evangelical Christians who own and control Hobby Lobby maintained in their lawsuit that this regulation violates their right to freedom of conscience and religion within the meaning of the Free Exercise Clause in the First Amendment to the United States Constitution.
In a five-to-four ruling, the Court rejected this argument. Citing a precedent written by Scalia, the Court held that the Free Exercise Clause only prohibits direct attacks on religious freedom: It does not exempt conscientious pro-lifers from “compliance with an otherwise valid law (such as the Affordable Care Act) prohibiting conduct that the State is free to regulate.”
However, the Court went on in Hobby Lobby to observe that what the Constitution does not prohibit, the Congress can and, in this instance, has prohibited through the Religious Freedom Restoration Act of 1993, which stipulates that the government must not “substantially burden” a person’s exercise of religion unless the government demonstrates that the burden “(1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling government interest.”
By inference, the Court concluded that this Act specifically prohibits the Obama administration from unduly burdening the conscience of pro-life employers by subjecting them to the general rule in the Affordable Care Act that all employers must provide health coverage for abortifacients.
Within the framework of the Constitution of Canada, Parliament and the provincial legislatures could each likewise enact a religious freedom restoration act. Moreover, these acts could specificy that pro-life physicians, nurses and pharmacists must be exempt on grounds of conscience from any law or regulation on abortion or euthanasia that would implicate them directly or indirectly in the deliberate killing of a vulnerable human being.
Can Canada’s pro-lifers persuade our elected legislators to enact such legislation any time soon? Alas, probably not, except perhaps in Saskatchewan, Prince Edward Island, and one or two other provinces.
For pro-lifers, these are tough times that call for determination to combat the ever mounting attacks on freedom of conscience and religion by legislators, regulators, and the judiciary.
Today, pro-life physicians are a prime target for oppression. But no one can be safe in a country where anyone can be persecuted for refusing to violate the sanctity of human life.
