There are excellent reasons to oppose state involvement with religion, but originalist arguments are not among them.
The advance of progressive ideology is leading to the retreat of religious freedom in Canada. Last year, the Supreme Court of Canada ruled that Trinity Western University, a Christian institution in British Columbia, could be denied accreditation of its law school simply because students would be required to live according to Christian sexual morality (i.e., sex permitted only within a heterosexual marriage). This was seen as a “no gays allowed” rule and such apparent bigotry could not be permitted in a Canadian law school.
Another new restriction on religious liberty has been since approved by a court in Ontario. On May 15, 2019, the Court of Appeal for Ontario (the province’s highest court) released its decision in Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario. This decision denied Christian physicians the right to avoid complicity in medical procedures that violate Christian ethical principles.
Until quite recently, strict sexual behavior rules for students of private religious universities and a physician’s right to avoid practices he or she considered to be unethical were relatively uncontroversial. However, as progressive ideology becomes more dominant, especially within the legal community, it becomes correspondingly intolerant. People who live according to historic Christian principles are becoming virtual outcasts in some situations.
“Human Rights” v. Christian Doctors
The Christian Medical and Dental Society case came about as a result of changes in policies regulating the medical profession in Ontario.
The College of Physicians and Surgeons of Ontario (CPSO) is the state-mandated regulatory body for the medical profession in the province of Ontario, Canada. It acts as an agent of the state in regulating doctors. In 2015, the CPSO revised its policy entitled “Professional Obligations and Human Rights.” This document explains the expectations for physicians who refuse to provide certain medical services for moral and religious reasons. Among these services would be controversial practices such as abortion.
Although doctors are not required to perform the medical services themselves, they are required to make an “effective referral” for their patients to ensure that those patients receive the desired service. In short, an “effective referral” would involve the physician in actively helping the patients to receive the service.
Also in 2015, the Supreme Court of Canada struck down certain Criminal Code prohibitions on assisted suicide. As a result, the CPSO adopted a policy called “Medical Assistance in Dying” commonly referred to as the “MAiD policy.” It too required doctors who opposed MAiD to provide an “effective referral” to ensure that a patient who desired such assistance could be killed in a timely fashion.
Since many doctors were not comfortable with these policies, the Christian Medical & Dental Society of Canada (CMDS) along with some individual physicians and a couple of other pro-life medical organizations challenged the “effective referral” policies in court. When they lost at the lower court level, they appealed to the Court of Appeal for Ontario.
Forcing Doctors to Violate Their Consciences
The position of the Christian doctors is briefly and accurately summarized by the court as follows: “they all have a sincere religious belief that human life is sacred, that abortion and MAiD are sinful, and that complicity in either practice, in the manner required by the Policies, is equally sinful.” In short, they believe the CPSO’s policies compel them to be complicit in medical procedures that violate their religious beliefs. For these doctors, “providing a patient with an effective referral to a physician who provides MAiD or an abortion would be the same as performing the medical procedures themselves. It would make them complicit and would be sinful.” In their view, “the act of referral is a form of direct cooperation in the act which makes the physician complicit.”
Because the effective referral policy would require Christian doctors to act contrary to their sincerely held beliefs, the CMDS argued that the CPSO’s policies violate section 2(a) of the Canadian Charter of Rights and Freedoms which guarantees “freedom of religion and conscience.”
As an alternative to the effective referral requirement, the CMDS proposed a “generalized information” process where doctors could provide patients with information about resources that enable the patients to locate other doctors who would be willing to provide the services they desire. As the court noted, “The ‘generalized information’ model places the burden on the patient to self-refer to find a physician who will provide the health care they seek.”
In short, the policies imposed by the CPSO place the burden of accessing the controverted medical services on the unwilling doctor, whereas the proposal offered by the CMDS places the burden on the patient. In the latter case, the doctor is not directly cooperating in obtaining an immoral medical procedure.
Limiting Religious Freedom
The court agreed with the CMDS that the CPSO policies did, in fact, violate the physicians’ section 2(a) freedom of religion. However, section 1 of the Charter states that its guaranteed rights are subject “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Under this provision, the court determined that “effective referral” policies are “reasonable limits” on the physicians’ freedom of religion.
The policies do not seem so reasonable to some of the Christian doctors, however. They indicated that they would need to leave Ontario or discontinue their medical practices to avoid violating their deeply-held religious beliefs. In the court’s view, such drastic courses of action were not necessary. Instead, the doctors could simply change their area of specialization.
As examples, the court referred favorably to the testimony of a Medical Adviser for the CPSO who indicated “areas of medicine in which physicians are unlikely to encounter requests for referrals for MAiD or reproductive health concerns, and which may not require specialty retraining or certification: sleep medicine, hair restoration, sport and exercise medicine, hernia repair, skin disorders for general practitioners, obesity medicine, aviation examinations, travel medicine, and practice as a medical officer of health.”
Love It or Leave It
The court’s solution, in other words, is for conscientious Christian doctors to avoid all areas of medicine where they could be asked for one of the controversial referrals. Among other things, this would mean no more Christian family doctors. When it comes to a medical specialty that may involve effective referrals, the court’s message to doctors is, “love it or leave it.” Any who would opt to change to a specialty not listed by the CPSO’s Medical Advisor would likely face years of retraining.
As the court explained, the Christian doctors “have no common law, proprietary or constitutional right to practice medicine. As members of a regulated and publicly-funded profession, they are subject to requirements that focus on the public interest, rather than their interests.”
In our secular, progressive society, abortion and medical assistance in dying are deemed by the state to be in the public interest. Physicians who oppose those practices are therefore in conflict with the public interest and must put their own views to the side. Who needs a doctor guided by strong ethical considerations, anyway? Especially in a publicly-funded medical system like Canada’s, perhaps it’s better for medical professionals to see themselves as technicians who carry out the policies of the progressive state. Good riddance to those “anti-choice” doctors (who, by the way, were denied the right to make their own choice on these vital matters).
Religious liberties that were taken for granted just a few years ago are now being increasingly restricted. So-called “progressive” thinking on matters of human sexuality and end-of-life issues is becoming dominant in Canada, and people who dissent from this new way of thinking no longer “fit.” Medical professionals are being put into particularly difficult situations where their livelihoods are threatened by the imposition of progressive ideology. It’s probably only a matter of time before other occupations experience the same type of adversity. Even if this matter were to reach the Supreme Court of Canada, that court’s 2018 Trinity Western University decision offers little hope for those seeking religious freedom protections in an era of progressive hegemony.