HUMAN RIGHTS CASE ENDS IN SETTLEMENT
After a difficult five- year struggle, seven Ontario health care professionals win the right to choose life
They did it!
After a five-year battle, eight Ontario nurses won the right to refuse to assist in abortions at the Markham-Stouffville Hospital, just outside Toronto. The nurses had taken their fight to the Ontario Human Rights Commission, and one nurse, Ailene George, had filed a civil suit.
They hope their victory will be precedent-setting. “I want all nurses in the future to have the right to say ‘No,'” said Joanne Van Halteren, one of the eight. “This will have a ripple effect.”
The case was to be heard by the OHRC, but the sides reached a mediated settlement April 13 in which the hospital issued a policy respecting the nurses’ religious objections to performing abortions.
The new policy applies to all hospital, nursing and medical staff. Staff with religious objections will not be required to provide primary nursing care to a patient admitted for an abortion, but could be required to provide post-abortion nursing care. They would not, however, have to in any way participate “in the administration, monitoring or documenting of the ‘pregnancy termination’ process.”
The nurses’ battle took its toll. One nurse, Ann Mahon, died of cancer in May 1998. Others suffered stress-related illnesses. Una Clennon had a lump removed from her breast that her doctor believed was brought on by stress.
“I was harassed day in and day out,” Clennon told The Interim. “It was torture.” “It was very discouraging and hard on our families,” admitted Van Halteren.
“When people called to say they were supporting and praying for you, it really carried you through. Many nurses weren’t willing to lose their jobs. We lost people all along the way, even after filing with the OHRC. There will be nurses who didn’t hang in with us who are going to benefit from our victory.”
The eight nurses have paid thousands of dollars in legal expenses and suffered lost wages. All lost their full-time employment at the hospital and were reduced to performing casual work at best.
The terms of the settlement are confidential except for the policy. The OHRC and the nurses’ lawyer, Peter Jervis, recommended the appointment of a hospital ombudsman to whom the nurses could have immediate access if a conflict arose.
The nurses each have 15 to 30 years of experience in obstetrics and neo-natal care. “The hospital lost highly prized nurses who care about life,” said Van Halteren.
At the time of their hiring by Markham-Stouffville Hospital, the eight nurses had made their objections to performing abortions clear, and had been reassured that they would be accommodated. In 1994, however, after hospital restructuring, abortions were carried out next to delivery rooms. Management simply told the nurses they would have to work it out among themselves – an unrealistic approach, since nurses involved in abortions resent those who aren’t.
Nor was the transfer to other wards or hospitals the answer. The eight nurses wanted to continue working in obstetrics, and many other hospitals refused to hire nurses who would not assist in abortions.
The new policy, which was approved by the Ontario College of Nurses, contradicts the college’s position in its document Ethical Framework for Nurses (1999): “When a client’s wish conflicts with a nurse’s personal values, and the nurse believes that she or he cannot provide care, the nurse needs to arrange for another care giver and withdraw from the situation. If no other care giver can be arranged, the nurse must provide the immediate care required. In the longer term, the nurse may have to leave a particular place of employment in order to adhere to her or his personal values.”
Under Markham-Stouffville Hospital’s new policy, a nurse with a religious objection may opt out of performing abortions, and the hospital, not the nurse, must find other staff willing to assist in the abortion.
The Ontario College of Nurses originally told the nurses that their grievance was a matter between themselves and their employer. Van Halteren now believes, “If enough nurses and the community at large put pressure on the college, it will have to stand behind other nurses in the future.”
The OHRC asked the nurses to provide letters from the leaders of their faith communities to verify their religious convictions. The nurses, all Christians, range across the denominational spectrum: Baptist, Canadian Reformed, Pentecostal, Missionary Alliance and Roman Catholic.
“Some doctors couldn’t believe we were ousted and will welcome us back,” Van Halteren told The Interim, “but other doctors and nurses who perform abortions won’t be pleased.”
Neighbouring hospitals have radically different policies. Nurses at York Central Hospital in Richmond Hill are able to opt out if they do not want to be involved in abortions, but at York County Hospital in Newmarket, staff are informed during their job interview that participating in abortions when required is a condition of employment.
“People who have a problem (performing abortions) are the ones with the greatest respect for patients and human life,” Steve Jalsevac of the Coalition for Conscience told the National Post. “Those are the people you should most want looking after you in a hospital, but they’re the ones experiencing the greatest stress and discrimination.”
The Markham-Stouffville precedent may be the catalyst needed to bring in conscience legislation that would give any health care worker the legal right to refuse to perform any medical procedure on religious or moral grounds. Such conscience legislation currently exists in 48 American states and many European countries.
Eighteen Conservative MPPs have submitted petitions to the Ontario Legislature calling for conscience legislation. Frank Klees (PC, York-Mackenzie) said he hopes the Markham-Stouffville precedent would now be considered part of the Human Rights Code, but that he supports legislation if necessary.
“It’s unfortunate we even have to talk about legislation,” he told theNational Post. “It’s a very common-sense thing to do.”