The Conscientious Objection of Medical Practitioners to the CPSO's 'Effective Referral' Requirement

Abstract

A number of doctors in Ontario have challenged the policy of the provincial College of Physicians and Surgeons that requires its members to provide a patient with an “effective referral” to another doctor if they were unwilling or unable on moral grounds to offer a particular medical service, such as an abortion or medical assistance in dying. The doctors argue that if they were to give an effective referral, they would be complicit in acts that in their view were immoral. I will argue that the significant issue in this case and other conscientious objection cases, is not, as the courts have said, the reasonable balance between the individual’s religious interests or commitments and the interests or rights of others in the community, but is instead whether the individual’s religiously-based objection should be viewed as an expression of personal religious conscience that should be accommodated, provided this can be done without noticeable harm to others, or as a religiously-grounded civic position or action that falls outside the scope of religious freedom and may be subject to legal regulation. The commitment to religious freedom requires that a distinction be made — a line drawn — between civic and spiritual beliefs or actions. An individual’s spiritual practices are both excluded and insulated from political decision-making. However, their beliefs concerning civic issues, such as the rights and interests of others and the just arrangement of social relations, even if grounded in a religious system, must be subject to the give-and-take of ordinary politics. In determining whether a particular (conscientious) objection should be viewed as a personal or spiritual matter or instead as a civic or political position, two factors may be relevant. The first is whether the individual is being required to perform the particular act to which they object only because they hold a special position not held by others, notably some form of public appointment. The other factor is the relative remoteness-proximity of the act that the objector is required to perform from the act that they consider to be inherently immoral. The more remote the legally required action, the more likely we are to regard the refusal to perform it as a position about how others should behave or about the correctness of the law, rather than as an expression of personal conscience.

Keywords: Religious Freedom, Conscientious Objection, Canada, CPSO, Effective Referral