Medical conscience rights have entered the chat as yet another hot button issue in the 2021 Canadian federal election.
Buried in the Conservative Party of Canada’s massive platform document released earlier this week is a pledge to uphold and defend health care workers’ “conscience rights.”
“We will protect the conscience rights of health-care professionals,” the platform reads. “The challenges of dealing with COVID-19 have reminded us of the vital importance of health-care professionals—the last thing Canada can afford to do is drive any of these professionals out of their profession.”
Like many platform points, the promise is vague. But it still prompted swift backlash from advocates and opposing parties concerned over the impact on services like abortion, LGBTQ2S+ health care and medically assisted death.
On Thursday, the Liberal Party of Canada released a statement slamming the CPC’s platform point.
“[Conservative Leader] Erin O’Toole says he’s pro-choice and pretends to be a moderate. In reality, Erin O’Toole has teamed up with the extreme right to roll back abortion rights, and medically assisted dying,” Liberal MP Carolyn Bennett said in the statement (O’Toole has said he will not roll back abortion rights).
“This is far outside the mainstream, only [a] handful of southern U.S. states have passed this kind of discriminatory [policy]. The policy would even let doctors and pharmacists deny contraceptives.”
When asked about conscience rights during a campaign stop on Thursday, O’Toole reiterated his pro-choice stance on abortion, but did not discuss LGBTQ2S+ health care. O’Toole said he supports the right of women to access abortion but would also “defend conscience rights for our incredible men and women on the front lines of our health care system.”
But what exactly are conscience rights and how can they be a threat to LGBTQ2S+ folks? Here’s what you need to know.
What are conscience rights?
Conscience protections or conscience rights apply to health care providers like doctors and nurses who refuse to perform certain health care services on religious or moral grounds.
They’re usually invoked in relation to issues like contraception, medically assisted dying, abortion or trans health care. It’s not about refusing service to a certain type of person—we’ve seen enough gay wedding cake lawsuits to know that’s a super big violation of peoples’ right to be free of discrimination based on their identity.
But proponents of conscience rights argue that medical professionals have a right to refuse a service they believe goes against their moral or religious beliefs. For example, a doctor might refuse to help someone medically die, because they might interpret it as an act against their religion.
Conscience rights have become a big issue championed by social conservatives in particular, and conscience rights legislation has become a classic way to pander to social conservative bases across the United States.
What do they mean for queer and trans people?
In short? Usually bad news.
While conscience rights don’t mean doctors can refuse care because someone is trans, they do often mean that a doctor can refuse to provide gender-affirming health care services and make accessing those services even harder. A doctor who interprets their religion or morals as being opposed to trans people could refuse to prescribe hormone replacement therapy or give a referral for gender-affirming surgery. And that’s on top of how difficult accessing these services can already be for trans folks.
And, of couse, queer and trans people regularly access other services that could be affected, such as abortion, doctor’s visits for contraception or medically assisted death.
What is the history of conscience rights in Canada?
In Canada, conscience rights are kind of already a thing. You can’t force a medical professional to perform a certain procedure they don’t agree with. But in most provinces, those professionals are required to refer you to someone who can if they won’t.
Most provincial colleges of physicians and surgeons are clear that if a medical professional refuses to provide a service based on moral or religious objection, they still have a duty of care that must be continuous and non-discriminatory.
For example, when it comes to medically assisted death, the B.C. College of Physicians and Surgeons lays out how an individual doctor can make the choice.
“While a registrant is not required to make a formal referral on behalf of the patient, they do have a duty of care that must be continuous and non-discriminatory,” the organization outlines. “In all cases, registrants must practise within the confines of the legal system, and always treat the patient with dignity and respect.”
But that doesn’t mean attempts haven’t been made to further expand conscience rights. Conscience rights most recently made headlines in 2019 in Alberta, where a backbench United Conservative MLA tried to pass a conscience rights bill that would not only affirm a doctor’s right to refuse services, but also to refuse referring patients to another doctor who would perform the services in question.
The private member’s bill would have amended the Alberta Human Rights Act to include “conscientious beliefs” as a basis for protection from discrimination, or refusal of employment. Basically, doctors would face no consequences for refusing services or refusing to refer patients to other medical professionals who would provide those services.
“Health care providers should never have to choose between their most deeply held beliefs and their job,” said MLA Dan Williams, who introduced the bill, at the time.
And while the bill passed its first reading, it eventually died in committee.
What could the federal Conservatives actually do about conscience rights?
That is a bit more tricky. As we’ve seen throughout the COVID-19 pandemic, health care is largely provincial jurisdiction in Canada, meaning each province handles things differently. It’s not super clear what an overarching ruling from the federal government would actually do when it comes to provincial administration of health care.
Any sort of conscience rights bill would also face some big challenges in relation to the Charter of Rights and Freedoms. In the context of trans health care, it would be easy to argue that conscience rights impede a trans person’s freedom to access medical care without discrimination on the basis of gender identity or expression.
This is why bills like the one in Alberta and similar legislation in Ontario have failed.
So all in all, this seems to be mostly a point of try to get some social conservatives on board with O’Toole rather than an actual immediate threat to LGBTQ2S+ health. Conscience rights were something championed by former Tory leadership hopeful (and now federal candidate) Leslyn Lewis during her leadership campaign against O’Toole, and including that line in a huge campaign document is an olive branch to the more socially conservative side of the Conservative Party.
It’s all politics. But it’s important to remember that should the Conservatives form government, a lot of social conservatives will be knocking on their door to follow through with the conscience rights promise.
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