Imagine being a feminist physician unshakable in your conviction that girls and women must be protected from patriarchal oppression.
Now picture being asked to assist with a sex-selection abortion because daddy doesn’t want a female child and mother consents to his wishes.
Up until May 15, reasonable Canadians would concur that you had every right to politely decline to participate in any way in what your conscience told you was gender violence.
Even today, they might think you still have that right. They would be wrong, at least if you’re an Ontario doctor.
As the result of a recent Ontario Court of Appeal ruling, you would be out of luck.
You wouldn’t be legally compelled to perform the abortion. But you would be legally bound to provide the family with an “effective referral” to another physician regardless of your deeply-held belief that doing so made you complicit in the selective aborting of females because they’re female.
An unimaginable violation of conscience rights that are guaranteed by Canada’s Charter of Rights and Freedoms?
Not according to the belief system of Chief Justice George Strathy, who held that the public interest in having accessible health care outweighs the religious or conscience freedoms of doctors who work in the public health-care system.
“Given the importance of family physicians as ‘gatekeepers’ and ‘patient navigators’ in the health-care system, there is compelling evidence that patients will suffer harm in the absence of an effective referral,” Strathy said.
Abortion is not a legal right, but it’s not prohibited, either. What is not prohibited, it appears, is now obligatory. And since 2016, when medically-delivered death – also known as medical aid in dying – became legal, what’s allowed by law is apparently an ultimate entitlement regardless of whether charter rights are trampled.
“The whole point of the charter was to provide the individual with protection against the overwhelming force of the state or state actors,” says Nicole Scheidl, executive director of Canadian Physicians for Life.
“Now it’s being turned on its head and used to go after people whose views might not be accepted by the majority, and particularly a majority that holds power. It’s the tyranny of the majority where you have this suppression and destruction of the individual that is really dangerous,” Scheidl adds.
Canadian Physicians for Life, the Christian Medical Dental Association, the Canadian Federation of Catholic Physicians’ Societies, and several individual doctors have been locked in a legal dispute with the College of Physician and Surgeons of Ontario.
The groups, representing more than 1,500 Ontario doctors, object to a college edict privileging abortion and medical aid in dying over conscience rights. They argue the order is the moral equivalent of requiring doctors to perform the acts.
The appeal court sided with a lower court decision rejecting that argument.
Scheidl said it will likely be two months before there’s a final decision on whether to appeal the case to the Supreme Court.
Meanwhile, the ruling might seem of concern only to the minority of citizens who are publicly religious or exist outside mainstream opinion on hot buttons such as abortion and medical aid in dying.
It isn’t. The onslaught against conscience is gaining momentum. It threatens charter guarantees that every Canadian has the fundamental right to think and believe freely.
It’s precisely because what we think and believe can change over time collectively, though not necessarily individually, that compulsion by “public interest” can become so perilous.
So, for instance, what happens when the wheel turns and it’s our feminist physician fighting for her charter right to conscientiously object to any level of involvement in a sex-selective abortion?
“Do we, in a Western democratic society, say, well, let’s discuss how to deal with these issues?” Scheidl asks. “Or are we going to suppress any kind of expression of an opposite viewpoint to the extent that you cannot really live, you cannot really pursue your profession, you can’t take part in civic dialogue, because we don’t approve of what you think or how you speak?”
Imagine Canadians having to ponder that question at this point in our charter-guaranteed democratic life.
Unimaginable, isn’t it?