Canadian nurses, who do not wish to assist at abortions, are in a very difficult legal position. This is based on the fact that there is no “conscience clause” in the abortion section of the Federal Criminal Code. The Provincial Human Rights Codes, however, usually provide that no one can be discriminated against on the basis of “creed”. Thus, nurses, in theory, cannot be refused employment or have their employment terminated if their “creed” prohibits abortion. However, in actual practice, this means very little, as “creed” has been given a very narrow interpretation so as to mean only that if an organized religion to which a nurse is adherent, has an official position opposed to abortion, then she will be protected. Thus, a nurse who is a member of a Pentecostal Assembly or the Roman Catholic Church, for example (both religions have an official position opposed to abortion) would, in theory, be protected. However, in actual practice, this has not been the case. Many hospitals have taken the position that assisting at abortion is, in fact, an occupational requirement, and that as long as abortion is a legal medical procedure, willingness to participate in the abortion procedure is a bona fide occupational requirement, and this overrides the provisions of the Human Rights Code, i.e. creates an exception to it.
The Provincial Human Rights Commission, at least in Ontario, would appear to support this position, as evidenced by two cases.
In these cases, a head nurse in the labor-delivery unit in Henderson General Hospital in Hamilton, Ontario, and an operating nurse at the J.D. Ruddy Hospital in Whitby, Ontario, were both removed from their positions because they refused to assist at abortions. The Ontario Human Rights Commission upheld the hospital’s decision on the ground that these nurses were unable, as employees, to carry out lawful hospital policy. However, the commission did recommend that the nurses be given comparable salaries in other nursing areas, hardly satisfactory to the nurses who were thus unable to work in their specialties. Further, as a result of this position, only pro-abortionists may hold positions in the operating rooms or in the labor-delivery units of other hospitals; hardly satisfactory to those who want to have confidence in the hospital staff.
If this were not bad enough, nurses who are not members of any religion which has an official position opposed to abortion are even more vulnerable. Many of these nurses reject abortion because of their deeply held personal belief which is every bit as meaningful and binding on their consciences as nurses who belong to a religion opposed to abortion. However, these nurses have no protection whatsoever, and in order to keep their employment, are forced to deal with the horror of assisting at abortions. The terrible trauma of these nurses was recently vividly described in the March 1983 edition of Quest magazine. In an article entitled Silent Nightingales, a nurse who is not pro-life stated as follows:
“At one hospital where I work they’re making great advances in the field of neonatology. The hospital also performs more therapeutic abortions that any other in Toronto. So do they have one floor for TAs and another ward for women whose babies are in neonatology? No, they all go up to OBS-GYN. I’ve worked in four-bed wards where three of the women were in for TAs on-a-whim and the fourth was sitting at the window hoping that neonatologies could save her premie. Everybody talks about right to life and abortion while the gap between permissible TAs and saveable premies get smaller and smaller. Out there it’s all theory. The nurses are the ones who deal with it skin-to-skin. A doctor orders up a saline for a woman who has convinced a rubber-stamp committee that ‘babies are not appropriate for her lifestyle,’ administers the injection during a 20-minute operation, and goes off on rounds. Nurses see the baby coming out with all its skin seared off and its face twisted in agony, frozen in its last scream, dying in the dark while the fluid around it turns into acid. Or suction – now there’s a treat. TAs from suction are neat , clean, painless – for everybody but the nurses, who get to pick baby bits out of the receptacle, little finger and toe bits. It’s not the morality of the thing I’m talking about, understand? I think women should be able to control their own bodies. But scorched fetuses and baby bits in the vacuum are hard to live with, wouldn’t you say?”
In short, the doctor does the abortion, turns around, walks out and leaves the nurse to deal with the broken pieces of humanity. It’s a nurse’s nightmare.
It is always possible of course, that a hospital may accept a nurse’s conscientious objection to assisting at abortions and permit the nurse to alternate with another nurse when abortions are scheduled. However, the situation is rare and will become even more so with the increased financial restraints on hospitals which means increased staff reductions. Also, a nurse may, at the time of hiring, raise the issue of conscientious objection to assisting at abortions and have her objection included in her contract, but this may well result in her failing to obtain employment. This is especially the case in areas where there is a surplus of trained nurses. Hospitals, of course, prefer to employ nurses who do not raise the complication of conscientious objection.
There is always a possibility too, that the court may in a future test case, determine that nurses may be protected under the “conscience clause” in the Charter of Rights.
S.2. of the Charter of Rights provides as follows:
Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion
(b) freedom of thought, belief, opinion and expression…
However, how the courts interpret this section with regard to nurses assisting at abortions, is not too certain. All sections of the Charter are premised on the Court’s interpretation of Section 1. of the Charter, which is known as the “open-door” section, which provides as follows:
S.1 “The Canadian Charter of Rights and freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”
What the above-emphasized words mean is anyone’s guess. It simply depends upon the judge’s own personal views on abortion. A Pro-Abortion judge would find that “freedom of conscience” in Section 2 would be subject to the “reasonable limit” that abortion is a legal medical procedure and a nurse employed at a hospital would be required to carry out the hospital’s policy. On the other hand, a pro-life judge may find it “unreasonable” that a nurse would be required to assist at abortions.
Pro-life nurses then, are left in a moral and legal minefield, vulnerable to the demands of the employer hospital, and have only a vague hope that, perhaps, the Supreme Court of Canada in a test case may hand down a decision that the “freedom of conscience” section in the Charter of Rights, protects them from assisting at abortions.
