Conservative Party leader Erin O’Toole recently found himself at the centre of the abortion debate as he hit the campaign trail in advance of the federal election on Sept. 20.
The controversy arose when he stated he was pro-choice while simultaneously claiming that he supported the rights of physicians to deny abortions on the basis of conscience.
He has since stepped back from that position, claiming instead that physicians must still provide referrals even when they object to providing abortions themselves.
However, while referrals are often said to strike a reasonable balance between physician and women’s rights, it’s not clear whether that’s actually true.
Violation of rights
The abortion debate in Canada is an old one, and the sides are well-entrenched. Part of the debate is the argument that if a physician truly believes that abortion is equivalent to murder, then asking that physician to engage in such an action would be a deep violation of conscience and religion. But to allow a physician to deny an abortion is an equally profound violation of women’s liberty, security and autonomy rights.
O'Toole’s suggestion that physicians should provide referrals in cases where they object to providing an abortion themselves is, likewise, not a new one. Some provinces like Ontario already require physicians to make “effective referrals” when they are unwilling to perform medical procedures themselves. Many provinces, however, do not.
One of the defining moments in the abortion debate in Canada was the 1998 R vs. Morgentaler case — a landmark Supreme Court of Canada decision that decriminalized abortion.
One of the key arguments raised within the case, and especially by the majority justices, was that delays in access to abortion can have heavy physical, emotional and psychological effects on women in need or want of an abortion. The court argued that timely access to abortions was critical for protecting the security interests of women.
O'Toole’s stance serves no one
These same access concerns remain an issue today. In particular, the question of whether physician referrals are sufficient to protect both the rights of women and physicians is an important one.
Despite O’Toole’s claims that he can be both pro-choice and protect the conscience rights of physicians, his solution of requiring referrals ultimately serves neither physicians nor women.
On the one hand, if a physician truly believes that abortion constitutes murder, outsourcing it to someone else will not relieve the physician’s burden of conscience. In fact, these concerns about continued complicity formed the basis of the appellant’s arguments in a 2019 Ontario Court of Appeal abortion case. The court ruled that referrals struck a reasonable balance between the rights of women and physicians.
On the other hand, allowing doctors to make referrals places an unreasonable burden on women seeking abortions. This is particularly true in rural or remote communities, where access to health care is already limited.
Seeking to abort a pregnancy is not a decision most women make lightly. Indeed, they are a highly vulnerable group, and many exist in precarious positions — whether it’s because of age, abuse, financial struggles or health concerns. In some cases, abortions may be time-sensitive.
Women in any of these situations cannot afford to be bounced around from one physician to another — potentially even being sent outside their communities to find assistance.
In this sense, the delays in access that could be caused by allowing the denial or referral of services would have the same severe physical, emotional and psychological effects outlined by the Supreme Court in its Morgentaler ruling.
Abortion access remains an issue in 2021
Concerns of access were at the heart of the Supreme Court’s Morgentaler decision. And unfortunately, three decades later, women in Canada still face significant barriers. Any policy about abortion needs to consider the issue of access and rights.
Admittedly, this is a balance not easily stuck. But perhaps the first step is to recognize the genuine right to abortion. The Morgentaler decision fell short of declaring abortion access a right under the Charter of Rights and Freedoms. This left a policy vacuum around abortion that has led to inconsistent access across the country — a situation that negatively affects both women and physicians.
However, legislating a woman’s right to timely access to abortions, rather than simply ensuring she’s not punished for having one, is the first step to striking a balance between the rights of women and physicians.
The only way to truly protect the conscience rights of physicians to deny abortions is to make abortion more readily accessible to women who need and want it across Canada, so that accessing abortions is not contingent upon doctors who don’t want to perform them.
It’s easy for O’Toole to say that physician referrals are the answer to the abortion debate. But if he is serious about protecting the rights of both women and physicians, he will have to expand abortion rights and access if elected prime minister on Sept. 20.
Gwyneth E. Bergman does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
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