Code Blue: The Need for Conscience Legislation in Canada
Trudy J. Morgan-Cole July/August 2000
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What would you do if the company you work for suddenly decided that you should participate in acts that are diametrically against your conscience? It's a valid question, one that thousands of health-care and other professionals are now facing and without a legal leg to stand on if they refuse. An employee who refuses, as Joanne Van Halteren did, risks dismissal, threats of dismissal, demotion, or various other forms of discrimination because of their moral convictions. But if the procedures (abortion, withdrawal of feeding, assisted suicide, transfusions, organ transplants, emergency contraception, medical experimentation, etc.) are legal, why shouldn't employees be required to carry them out?
Why indeed? Many people are asking that same question. Most of them fall on one side or the other of the moral picket fence. Ironically, opponents (those who are pro-choice) argue that there shouldn't be a choice. "The Canadian Abortion Rights Action League [CARAL] says people should have full access to 'reproductive health information and services, and that must include abortion.' Chris Melnick, former president of the Toronto chapter of CARAL, says if a health-care professional 'is not interested in taking part in a procedure, whatever that might be, they should not place themselves in such a position where they might be called upon to do so.'"1
With the way health care is advancing in both procedures and technology such a position is both impractical and impossible. Finding an employment situation that doesn't violate your conscience could be fine this month and an entirely different animal next month. How is one to know which objectionable procedures will be developed next and in which given area they will be implemented?
Downsizing, for example, has resulted in hospitals consolidating abortion services in obstetrical or medical units. This presents previously unseen dangers to health-care workers. What is to prevent hospitals from employing only those health-care workers who agree to participate in all procedures regardless of whether or not these go against their conscience?
As in the case with Joanne Van Halteren, who was assured at her hiring interview she would not have to assist with abortions, things can change. During one such change in hospital programming and policy all the nurses at the hospital were required to sign a form stating that they would perform all procedures. "It meant we could be required to administer pitocin [a drug that induces premature labor], which essentially means we would start the abortion," Mrs. Van Halteren says. She did not object to caring for women after their abortions. Included in her case to the OHRC (Ontario Human Rights Commission) was evidence that she (and another of the complainants) responded to an emergency call and assisted a nurse during an abortion to save the life of the woman who was hemorrhaging.2
Pharmacists today are being asked to dispense the "morning-after pill," a form of contraception that is used in emergencies to terminate the hours-old fetus after conception but before it implants in the uterine wall. Soon RU-486, otherwise known as the abortion pill, might be legalized. Currently RU-486 is not available in Canada, in part because pharmaceutical companies are afraid that selling the product will lead to boycotts of their other products.
Dr. Francis Jacot, director of the Clinique de Planification de Naissance in Sherbrooke, Quebec, stated during the twenty-fifth anniversary meeting of the CARAL in Ottawa that "companies will not apply for an RU-486 license simply because it will not make a profit."3 But just because RU-486 might take a while to debut in Canada is no reason for anyone with moral convictions against the drug to relax. Jacot went on to say that a similar drug, misoprostal, is ready and available for use in Canada.4 The fact that it is only "probably safe"5 doesn't seem to be a significant issue in regards to whether or not it should be dispensed.
"In an age when the absence of legal prohibition is used as a reason to oblige health-care workers to assist in morally objectionable procedures, legislation should be enacted to restrain persons in authority who demonstrate contempt for the valid exercise of individual conscience by health-care workers. It would indeed be ironic for advocates of 'choice' to oppose legislation which would instill such protections from intimidation or suppression of one's conscience. Unfortunately, such legislation would not prevent morally objectionable medical procedures from taking place. However, such legislation would go some way in protecting heath-care workers by preventing coercion by direct or implied threats of dismissal, disciplinary action, or limitation of career opportunities."6
"Hoping" that matters of conscience will never affect you or your job is not enough. Legal provisions must be made to ensure that no one can be discriminated against for acting on the moral direction of their conscience. And that is what Julius Edward Yankowsky hopes to accomplish with the bill currently known as 212.
Yankowsky is a member of Alberta's provincial legislature, representing the district of Edmonton Beverly-Claremont. He describes himself as pro-life, and became concerned about the issue of conscience clause legislation when stories in the media alerted him to the plight of Alberta health-care workers who had faced situations similar to Joanne Van Halteren's. There's little recourse for nurses and others in those situations. Their own unions usually don't support them because the issue is so politically touchy. And, says Yankowsky, though they have the right to complain to their province's Human Rights Commission, most won't do that. "A Human Rights Commission complaint takes a long time," he says, "and employers look negatively at an employee who files a complaint. These people-nurses especially-are concerned for their jobs, and they won't file a complaint except as a last resort."7
Bill 212 could be an answer to their plight, at least in Alberta. As a "backbencher" (one who is a member of the governing party, but not a cabinet minister) in Alberta's Progressive Conservative government, Yankowsky has the opportunity to introduce a "private member's bill" on an issue of concern to him and his constituents. He decided to use this opportunity to try to pass the conscience clause legislation that has become Bill 212.
The proposed Bill 212 would be an amendment to Alberta's Human Rights, Citizenship, and Multiculturalism Act. It would guarantee that health-care workers could not be forced to participate against their will, in "abortion procedures, genetic terminations, or acts of euthanasia."8 It would protect the rights of health professionals "to refuse . . . to participate in medical procedures that offend a tenet of their religion, or their belief that human life is inviolable,"9 and would ensure that those who did refuse would not have to face reprisals or coercion. Under the draft legislation as it's currently worded, no employer could "refuse to employ a nurse, refuse to advance or promote a nurse, or dismiss or threaten to dismiss a nurse"10 because that nurse followed his or her conscience on issues such as abortion and euthanasia.
Bill 212 is not the first attempt to pass a "conscience clause" in Canada, but so far no Canadian legislature, provincial or federal, has approved such legislation. "It's been introduced in the House and Senate repeatedly over the past 10-15 years," says Peter Stock of the Canada Family Action Coalition, "but it never gets beyond the point of debate."11
Conscience clause legislation is usually introduced as a private members' bill. As Yankowsky says: "For some reason, governments are reluctant to introduce this kind of legislation."12 In the Canadian parliamentary system, a bill that the government introduces into the federal or provincial legislature is virtually guaranteed to pass, since all members of the majority party will vote for it. But a private member-one who either belongs to a minority party, or is a government backbencher-has very few opportunities to introduce a piece of legislation, and even less certainty that that legislation will ever be debated, much less passed into law.
That's why conscience clause legislation has remained on the back burner for so long. In November 1997 pro-life senator Stanley Haidasz of Toronto introduced Bill S?7 into the Canadian Senate. The bill sought to amend the Criminal Code to protect health-care workers from coercion in assisting in procedures posing avoidable risk to human life-procedures such as abortion and assisted suicide. Senator Haidasz retired soon after, and the bill progressed no further.
In December 1998 Reform MP Maurice Vellacott introduced a similar bill into the House of Commons, but it never reached a vote in the House. Draft legislation for a conscience clause was drawn up in British Columbia several years ago, but never passed into law. A private members' bill dealing with the issue was recently introduced into the Ontario legislature, but it, too, died before ever coming to a vote.
members to again consider conscience clause legislation. The petition received several thousand signatures, and the CFAC's Peter Stock says Ontario pro-lifers are hoping the issue will be debated during this session. "The current attorney general and labour minister in the Ontario government may be more amenable to this type of legislation," he says, "so we're hopeful."13
Stock also holds out high hopes for Julius Yankowsky's Bill 212. "If there's any government in the country that will pass this kind of bill, it's Alberta," he says. Conservative premier Ralph Klein's provincial legislature contains "lots of social conservatives on the backbenches, and even some in the cabinet," says Stock.14
Julius Yankowsky won't go so far as to guess whether or not Bill 212 will pass. But he is optimistic about getting it debated in the legislature. In Alberta, private members hold a draw for the right to introduce bills, and this year Yankowsky drew the number 12-a number low enough that there was a good chance for his bill to be introduced late in the spring 2000 session of the legislature. He has already shepherded the draft legislation through the early stages-defending it before the Agenda and Priorities Committee and the Standing Policy Committee. Next it will be reviewed by all the elected members of Yankowsky's party.
Since Yankowsky is a Progressive Conservative, and that party forms the government of Alberta, his Bill 212 will have a good chance of success if his party decides to support it. But even if the party as a whole doesn't throw its support behind the conscience clause, there's still hope. "We have a free vote on private members' bills," Yankowsky explains, "so members don't have to vote along party lines. If it receives the support of many of the individual members of my caucus, and then some opposition members support it, it just may go well."15
Public opinion counts too. "Members will decide whether or not to support it, depending on what they hear from their constituents," says Yankowsky. "Bill 212 hasn't really been publicized much yet, since it's still in the preliminary stages. We're just getting petitions out. But once it's introduced in the legislature, we hope to get some media coverage."16 If the citizens of Alberta are supportive of the conscience clause, their elected representatives may choose to support it too.
It is not possible to protect yourself from being caught between matters of conscience and duty without legal backup; the dictates of one man's conscience may not be the dictates of another. That's why conscience clause legislation is so vitally important. It would give all people the freedom to follow their conscience in a workplace whose rapid advances raise ever more complicated ethical questions.
Trudy Morgan-Cole is a freelance writer in St. John's, Newfoundland, Canada, and Celeste Perrino Walker is a freelance writer in Rutland, Vermont.
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FOOTNOTES:
1 Paul Tuns, "Health Care Workers Seek the Right to Say `No,'" The Interim, August 1998.
2 Celeste McGovern, "Fired for Saving Lives," Western Report, July 6, 1998.
3 Amrita Moore, "At CARAL Meeting, 'Choice' Is Really No Choice," The Interim, December 1999.
4 Ibid.
5 Ibid.
6 Philip Horgan, "Health Care Staff on the Front Lines of Moral Choices," The Interim, December 1997.
7 Julius Yankowsky, interview with author, Feb. 3, 2000.
8 Bill 212-Human Rights, Citizenship and Multiculturalism Amendment Act (briefing paper).
9 Ibid.
10 Bill 212-Human Rights, Citizenship and Multiculturalism Amendment Act (draft legislation).
11 Peter Stock, interview with author, Feb. 2, 2000.
12 Yankowsky.
13 Stock.
14 Ibid.
15 Yankowsky.
16 Ibid.