 I'm very fortunate to be introducing Bernard Dickens to you. He is Professor Emeritus of Health Law at the University of Toronto Faculty of Law. He's also co-director of the International Reproductive and Sexual Health Law Program at the University of Toronto. He is as well, and he is Professor Emeritus. There's so much on here. He's Professor Emeritus also of the Faculty of Medicine and the Joint Centre for Bioethics at the University of Toronto. It's hard to know how to limit myself in this introduction and not to be too effusive, but one is awestruck reading his biography. For one thing, he has two real doctorates as well as some honorary ones. One doctorate is in law and criminology, and the other is in medical jurisprudence. Bernard is co-editor of a number of international journals all to do with health law. He chairs the Ethics Advisory Committee of the Public Health Agency of Canada. He's both a fellow of the Royal Society of Canada, which is a very high distinction. And likewise, a very high distinction. He's an officer of the Order of Canada. He has just way, way too many for one person publications and community service, both in Canada and internationally. If I kept outlining even in brief for you, we would be up to 130, and the seminar would be done. So I'm about to give Bernard the floor, but I just want to mention two more things. One is that he chairs the Ethics Committee for the International Federation of Gynecology and Obstetrics, and this informs the topic of today, which, as you likely see there, is the legal scope and limits of conscientious objection by health care providers. So please join me in welcoming him. Well, thank you. I'm very pleased and honored to be here. I'm grateful to Professor Gibson for the opportunity to be here, really coming back to a much more charming room than I was in last time. Also, for a very generous introduction, I'm sorry that my parents weren't here to hear it. The topic is the one that you see, conscientious objection, and this really is rooted both internationally and domestically. Internationally, it's identified in the International Covenant on Civil and Political Rights, but to give domestic effect to this legally binding international treaty, we have the Canadian Charter of Rights and Freedoms, which is rooted in the International Covenant. And it repeats many of the same governing principles. And the first one that we have to look at is the one that you have, that everyone shall have the right to freedom of thought, conscience, and religion, and this right shall include various freedoms of public and private demonstration of convictions, but also the right to manifest his religion or belief in worship, observance, practice, and teaching. The International Covenant goes back to drafting in the 1960s. Today, of course, it would be quite unacceptable to identify just the male gender of modern documents, so I wouldn't say to manifest his religion. It might be in the plural that people have the right to manifest their religion, or it might be a gender inclusive. But this is a document that we have. The importance of it initially is twofold. The first is that it distinguishes conscience from religion. That is, conscience is separate from religion. We know, of course, that much conscience is guided by religion. Many people draw on their religious convictions to shape their conscience. But conscience is not limited to religion. Religion does not have a monopoly on conscience. The conscience can be guided by a personal philosophy, a social conviction, an economic conviction, and one's a personal belief system. So the first point to note is that we are dealing with conscience. And although much of the emphasis in my talk this morning is going to be on religiously directed conscience, we have to remember that conscience is separate. It is not dependent upon a belief in divine guidance. It can come from secular, more mundane convictions. The second point is to note that religion itself is subject to assessment by reference to conscience. That is, one can conscientiously scrutinize and even criticize the way religious institutions exercise their freedom. Freedom of religion is very important because it's part of personal identity. But when we recognize that the international covenant has its domestic impact through the Canadian Charter and also the decision of the Supreme Court, that when governments delegate functions to hospitals, the hospitals have to implement the government's obligations under the Charter, we recognize that there can be quasi-governmental charter implications for the way hospitals operate. But because of the freedom enjoyed by religious institutions, they are permitted to deviate from what otherwise would be requirements under the federal charter and under provincial human rights codes. Those codes, for example, prohibit discrimination on grounds of sex or gender. They equally prohibit discrimination on grounds of marital status. And of course, they tend to prohibit discrimination on grounds of sexual orientation. But religious institutions, because the government keeps its hands off them, are permitted to limit, for example, ordination of ministers to men and not women. And although most visible in this regard is the Catholic Church, we have to recognize that orthodox Judaism and branches of Islam do not ordain women. To that extent, the practices of these institutions in their private exercise of freedom of religion are permitted to do what other institutions would not be permitted to do. Equally, of course, the Catholic Church does not undertake the marriage of people who have been divorced. This is discrimination on grounds of marital status. And of course, the Church is not just a Catholic, have been in the forefront of resistance to same-sex marriage. So there are a variety of discriminatory practices in violation of our human right code that we tolerate for the exercise of freedom of religion. This becomes an important value. Of course, a background question is whether these institutions that violate our human right code ought to enjoy tax immunities on their income and their land. But that's not an issue that we need to address now. There is a limit on the exercise, not just of thought and conscience, but particularly of religion because of Article 183. This provides that freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law. And unnecessary to protect, the full quotation, is to protect public safety, order, health, or morals, or the fundamental rights and freedoms of others. The point is that freedom to engage in one's own thoughts and one's own conscientious convictions and one's religion is acceptable as an internal, private matter. But the exercise of, in the language, religion or beliefs in a public manifestation can be limited by law. That is, under the rule of law, there can be legitimate limits. Now, this is something that we're familiar with in the context of the charter. That is, freedom to profess thought, conscience, and religion, but in particular freedom to profess a conscience, is absolute. But freedom to act on one's convictions, that is to manifest religion or beliefs, can be limited by the rights of others. And this requires a balance. That is, balancing which rights can prevail over other equally legitimate rights. And this balancing is something that we're familiar with in the Canadian Charter of Rights and Freedoms. The charter begins with, as you would expect numerically, section one. And the fact that it is section one is important, because that provides in a very crude synthesis that you are guaranteed to enjoy all of the following rights and freedoms unless you are not. And you would not be free to enjoy them because they are subject in the language of section one of the charter, subject only to such reasonable limits prescribed by law as can be demands to be justified in a free and democratic society. So one can think what one wants. One can move in accordance with one's conscientious values. And one can also maintain one's religious beliefs. But to manifest religious or other beliefs can be limited under the law. And so the balancing exercise is one that we are familiar with at the international level under the International Covenant and domestically in Canada because of the impact of section nine. Underlying this is that one's religious convictions are essentially private. And we know that private institutions, perhaps subject to provincial human rights codes, can discriminate. These are the points that I've made in the context of religion. But it applies equally to private associations. We've recently seen in the sporting field that a well-publicized golf club in the United States has changed its rule and actually permitted the inclusion of women. The exclusion of women until about two weeks ago was not unlawful. As a private institution, they were entitled to exercise that judgment. The difficulty that we have in the health context, however, is that licensed health professionals enjoy a legal monopoly. That is, there would be provincial offenses for the unlicensed, unqualified practice of medicine, and certain other health professionals. And the discharge of professional functions has a public aspect. And it raises questions of whether it is an abuse of monopoly granted by law that practitioners in a given area all exercise conscientious objection with the effect. And sometimes one could suspect the purpose of making particular medical procedures inaccessible to those who depend on them, that is, those who don't have the means, the money, the leisure to go elsewhere for treatment. So one has difficulties in this regard. Conscientious objection is limited to direct participation in procedures. But in order to accommodate freedom of conscience, employers are expected to maximize individual's capacity to exercise their freedom of conscience. But this is limited to direct participation in procedures, such as abortion, contraceptive sterilization, the prescription of contraceptive drugs, emergency contraception, and also not to limit ourselves to the beginning of life, there are conscientious objections to many end-of-life procedures, that is, there can be control. And there can be objection of withdrawing dependent people's access to nutrition and hydration, so-called terminal sedation, some see as analogous to killing patients. And they find it objectionable. And although my focus is on the beginning of life, we have to remember that we have the full spectrum of life experiences that can offend individual conscience, particularly religious conscience. And this ought to be accommodated because of the respect that we have to give to freedom of conscience, including freedom of religious conscience. There is an exception, except where a woman's life or permanent health is in danger, we are dealing essentially, of course, with women in the reproductive field. But this is not to say that one's religious conscience or one's conscience motivated by other incentives is limited to a religion. This is not too much of a difficulty, though, where survival, life, and the preservation of permanent health is at risk because of the philosophical doctrine accepted, for example, by the Catholic Church, of double effect. That is, if one finds a woman's life endangered by continuation of pregnancy, then terminating the pregnancy may in effect be abortion. But it would be characterized as a lifesaving intervention. The secondary effect may be unavoidable, but it's not the primary purpose. It's not intended. The analogy in the male field is if a man has cancer of the testicles, the testicles are removed and he becomes sterile. But that's not a sterilization procedure. That's a lifesaving procedure. And in that sense, the doctrine of double effect means that individual's lives and permanent health are not sacrificed to religious convictions. In the reproductive health field, just as a side issue, there are now experiments with the donation, the transfer of testicles, so that a man who loses his ability to fertilize an ovum can, in fact, father a child by organ transplant. There's an interesting question of whose child that would be. Is it the child of the man who receives the testicles or the man who donated them? But that's for another class. The fact that religious institutions can object to procedures has, of course, been litigated more in the United States and Canada. But there was a case in 1989, a case of Brownfield against the Daniel Friedman Marina Hospital in California, where marinas are. Brownfield against the Daniel Friedman Marinal Hospital, a decision of the California Court of Appeal in 1989, involving a rape victim who was treated. But she wasn't offered what we would call emergency contraception. And she went to court to seek a declaration, not seeking compensation, but saying that she was not dealt with in accordance with the legally required standard of care, because the Catholic Hospital's Emergency Department not only did not have means of emergency contraception, but didn't tell her that that was a legitimate option and refer her to another institution. The California Court of Appeal said that that was a breach of the required standard of care. And the hospital was required and has reluctantly accepted that in its rape crisis center, it will provide either emergency contraception or prompt referral. And it really makes the point that when institutions are discharging a public function, then they have to meet public standards, even if their religious convictions are to the contrary. The accommodation, then, of conscientious objection is to direct participation in procedures. If we're thinking about surgical abortion or even that medical abortion, sometimes called medication abortion, non-surgical abortion, those who would be directly involved are entitled to the protection of their conscience by exemption from liability. In the Brownfield case, the Catholic Hospital invoked its protection against undertaking abortion procedures. But the court determined that abortion is not simply a medical matter, it is a legal matter, and emergency contraception was designed to and operated to prevent pregnancy. It was not abortion, and therefore the hospital could invoke its immunity from having to undertake abortion. But if one is dealing with, for example, surgery to terminate a pregnancy or for a tuber ligation, a sterilization procedure, then those who otherwise would be expected to do it, gynecologists, are entitled to invoke their religious protection, their protection of their religious conscience. Equally, operating theater nurses who find this objectionable are entitled to say that this is a practice they will not undertake, and we're going to make the point that when health professionals disclose in advance to potential employers the practices within the scope of their specialty that they decline to undertake on grounds of conscience, they are protected against discriminatory practices. That is, they can't be refused a job because of their religious conscience. In most cases, there may be exceptions. If, for example, a hospital finds that all of its obstetricians, gynecologists, will decline to undertake certain procedures, and the hospital has a community dependent on that hospital for services that existing staff members decline to undertake, then, of course, it becomes a burn of Friday condition or future employment that a future applicant will undertake the procedures that the hospital is obliged to make available. And if its existing staff create barriers to that, the hospital overcomes those barriers and it can then select who it will recruit. And, of course, the condition of employment is that the practitioners will undertake what certain of their colleagues refuse to undertake. But there is an obligation on the part of employers generally to be reasonably accommodating of the conscientious convictions, religious or otherwise, of potential and actual staff members. The protection, though, is of direct involvement. I mentioned surgeons, also operating theater nurses. Anesthetists can decline. More contentious is the role of pharmacists, whether in hospitals or in the general community. We know that a lot of objection to filling contraceptive prescriptions, not just emergency contraception, not just medication abortion, but routine contraception, will be rejected by some pharmacists. And if they refer the applicants for those prescriptions being filled to other reasonably accessible pharmacists, then this is accepted. But there was a case before the European Court of Human Rights involving pharmacists, two pharmacists, husband and wife couple, in a fairly remote area of France who refused to fill contraceptive prescriptions. And they were disciplined under the consumer's rights legislation of France. And they appealed against that to the European Court of Human Rights. And the European Court said that because of the isolation of their location and because women needed these procedures within a short time and didn't have the means to travel distances to other available sources, the pharmacists were not free to exercise their religious convictions against filling the prescription for contraception. This is the sort of thing that in practice one would hope to accommodate in an area such as an urban center where there are alternative means of recourse. And one would expect pharmacists who refused to fill formula to complete prescriptions to refer their patients, their potential patients to other providers. But the European Court said that because of the isolation, in this case, the pharmacists were not free to exercise their religious conscience. The Court said that there were many other areas of activity in which they could manifest their religious and conscientious convictions but not to deny treatment to those who needed it. And of course, this goes back to article 18, subsection three of the Convention on Civil and Political Rights. This is a legitimate limit. The role of nurses becomes difficult in the area of abortion. I've mentioned that nurses who find this an objectionable procedure are entitled not to take part. But routine functions would include, for example, with the order list, but clearing up after surgical procedures. And it is distasteful in a late term abortion to clear up what results from the dismantling of the limbs of the identifiable fetus. It's very distasteful, it's very distressing. And the question is whether nurses who conscientiously object are entitled to place the entire burden of that responsibility on their colleagues, or whether this is something that they have to share equally. Clearly after the procedure is undertaken, tidying up after it is not participation. Equally, of course, there are objections that have come up in Latin America to admitting patients for abortion procedures. And there are two decisions of 2006 and 2008 of the Constitutional Court of Columbia that are very graphic in this regard. The Constitutional Court of Columbia may declare that hospital administrators are not direct participants in the procedures they facilitate. That is, admitting patients for objectionable procedures, procedures that the admitting officer finds personally objectionable, is not direct participation. And it does not accommodate conscientious objection. Equally, scheduling surgery that one finds objectionable is not direct participation. So one can't discriminate on the basis of procedures that patients are going to have or that patients have had. This is not participation. There's an interesting case that is likely to go forward from the United Kingdom from Scotland. An interesting case decided in February of this year in the Scottish trial court, the Court of Session, that is likely to be appealed to higher levels through the appeal courts even finally to what used to be what I still think of as the House of Lords, which of course is now properly described as the Supreme Court of the United Kingdom. The case involved two midwives, devout Catholics, who worked at a facility where they were in charge of midwifery supervision, guidance, instruction, support of midwives. And a limited number of abortions were done and that was accommodated. But because of a change in health service delivery within Scotland, the hospital in Glasgow became the primary centre for abortion services. And the nurses with support of an outside agency, the Society for the Protection of the Unborn Child, SPUC, litigated against disciplinary proceedings where they were found in breach of their terms of employment. They required them to supervise midwives, a number of whom were involved in abortion procedures. And the two senior administrative midwives objected that this was a violation of their conscience, it was against their convictions. The difficulty was that each of them under renewed terms of employment had voluntarily accepted to discharge their functions of supervising midwives knowing that many of them were involved quite directly in termination of pregnancies. And it was found that the disciplinary sanctions, one of them had actually taken another job, the other hadn't and was unemployed. But it was held that the disciplinary sanctions against them were appropriate because they were obliged to discharge the employment terms to which they had voluntarily committed themselves. And they were clearly in breach. This was a form of, if you like, a conscientious martyrdom. But the proposal of the SPUC, the Society for the Prediction of the Unborn Child, have said that they intend to take the case further and we'll have to see where it goes. The involvement of nurses, as I was about to say, is significant because a number of terminations of pregnancy are conducted by a saline injection or the use of prostaglandin techniques. And those involve doctors inserting the catheter into the woman's abdomen. But it's in the nurses who administer the drugs and moderate the flow of the drugs and of course deal with the consequences, the expulsion of contents of the uterus. And this was litigated in the United Kingdom in the late 1980s because the Royal College of Nurses, on behalf of nurses, said that this leaves nurses vulnerable to prosecution because the United Kingdom Abortion Act of 1967 gave doctors protection. But it didn't protect anyone other than doctors in the language of the statute. And the nurses said because they are hands-on conducting the abortion procedure, they could be vulnerable to in the United Kingdom law, the offenses against the person of 1861 abortion is punishable with up to life imprisonment. And the Royal College of Nurses, perhaps in a challenge, said that this leaves nurses vulnerable and they are not obliged to implement a procedures that leave them vulnerable to these sanctions without regard to a personal conscience. The Highest Court at that time, the House of Lords, ruled that those who were acting under doctor's direction, that is nurses, are covered by the doctor's immunity and therefore these procedures would leave the nurses immune from legal liability. But because they clearly are involved, they have the freedom of conscience to object. And in those circumstances, nurses can object to this level of direct participation. This is in contrast to other nursing functions, serving meals, making beds, looking after the general hygiene of patients that does not attract a conscientious objection. That is those who have to prepare patients for medical procedures, not necessarily immediately preoperative that can be seen as part of the direct procedure. But those who undertake auxiliary services before or after surgery cannot invoke rights of conscientious objection. Institutions, such as hospitals, do not have a human right to claim conscientious objection. Now, this is a point that's being contested, but it was clarified for international purposes by the two decisions of the Supreme, I beg your pardon, the Constitutional Court of Columbia, the 2006, amplified in the 2008 decisions, saying that institutions, such as hospitals or clinics, cannot invoke the human right to claim conscientious objection. Whether institutions can claim conscientious objection is something that has been contested under international human rights provisions. Both the European Court of Human Rights and the Inter-American Court of Human Rights have grappled with this issue, but have come to the general assessment that ecclesiastical institutions, church-based or religious institutions, churches, mosques, synagogues, are entitled to freedom of religion, and they can choose, for example, who they are going to permit to discharge their religious functions, and obviously they want adherence to the religion they profess. But institutions that are secular community institutions cannot invoke institutional rights of conscientious objection. Obviously, hospitals are not licensed to practice medicine. That is, they are not direct participants in the procedures they accommodate and facilitate. And in that sense, they are not free as institutions to regulate particular procedures on grounds of conscience. Of course, we tend to focus here on in particular Roman Catholic hospitals. They're very visible. They're dominant in many areas in the United States because of the burdens, the financial burdens of hospital management. There've been a number of mergers, and Catholic hospitals have the resources of the Catholic Church behind them, although, of course, many of the services that they discharge are reimbursed by provincial health plans, and they therefore receive vast volumes of public money estimates for 2002 whether Catholic hospitals in the United States of America in 2002, the last year for which we have figures, received $45 billion of public money through Medicare and Medicaid. And so they're very much involved in healthcare, and the Consonance of Catholic Bishops is very vocal regarding the organization of hospitals. But if, for example, another Christian denomination if Jehovah's Witnesses had the funds, which they do not, to run hospitals, we have to ask whether it would be acceptable that an entire region was dependent on services from the Jehovah's Witness Hospital that undertook surgery but would not undertake blood transfusion or the use of blood products. Could a community be made dependent on a hospital that refused to undertake blood transfusion? And if not, then how can we rationalize whole communities being dependent on hospitals that weren't undertake medically-indicated terminations of pregnancy, sterilization procedures, abortion procedures, or comfortable dignified end-of-life procedures? This is a challenge that we have to grapple with. We know that there are fiduciary duties binding health professionals. The Supreme Court in 1992, McInerney and McDonald established that the doctor-patient relationship does involve fiduciary duties. And this is true in the United States and in Australia. It's an interesting historical point that certainly England within the United Kingdom does not accept that the doctor-patient relationship is fiduciary. This is something that has been denied and resisted. And quite why North America has moved to accept this nature of the relationship is historically an interesting point. But the Supreme Court has made it clear that Canadian providers are bound by fiduciary duties. And these duties involve at least three elements. The first is that when practitioners within the scope of their medical specialty will decline to undertake procedures reasonably expected of them, they ought to tell potential patients and in particular potential employers. That is, they can't be discriminated against on ground to their religious faith. But if a hospital finds that it has to discharge certain procedures that its existing staff object to, then that will be relevant to subsequent appointments because it must recruit personnel to undertake the services indicated by the catchment area, the population of the catchment area, the hospital serves. So the first obligation is to disclose in advance the procedures that one declines on grounds of conscience that may be religious or other to undertake. The second is the obligation part of routine informed, free and informed consent in the doctor-patient relationship. The patients are entitled to relevant information concerning options available to them. And part of the fiduciary duty of the health professional is to inform patients of all medically indicated options for their care, including those in which the individual practitioner declines to participate. That is, denying the patient a service is legitimate. Denying the patient information of medically indicated services is not acceptable. That is a limit on freedom of conscience. One must disclose the procedures that one won't undertake. And then what I described as the key compromise is the duty to refer. That is, if services are not going to be made available by an individual practitioner or by an institution, suppose the institution is free to decline services, then there must be referral to appropriate others. That is also part of the balance, the compromise between respecting individual conscience, religious or otherwise, and also ensuring that others are entitled to exercise their right of access to medically indicated wanted health procedures. So important obligations, that is first of all to tell potential patients and employers the services within one specialty that one objects to perform. The obligation to inform patients of all procedures indicated on an objective medical basis without regard to the willingness of the individual to participate in those procedures and the obligation to refer. This is sometimes opposed on religious grounds because of the religious concepts of complicity, the doctrine that it is as offensive to refer to others for a procedure as it is oneself to undertake the procedure. But we have to remember that even abortion referrals are not referrals for abortion, they are referrals to others who will consider whether the procedure is indicated or not. Some time ago, two years ago now, I was at the only clinic in Uruguay, Montevideo. It had a small population, the whole population of Uruguay is smaller than Metropolitan Toronto, it's about three million. All of the abortions are concentrated in the University Hospital. And the hospital had produced figures for 2008, I was there in 2010, and they only had figures for 2008. But it took some pleasure that of all of the cases in the country referred to them for abortion or in an abortion context, 42% resulted in continuation of the pregnancy. That is, the discussions were not for abortion, they were to consider a range of options of which abortion was simply one. And of course, referral is not participation. Doctors who refer to others for procedures, they weren't undertake on grounds of skill or on grounds of conscientious objection. The doctors who make the referral are not participants in the subsequent discussions and procedures. They don't share fees, that is, a fee spitting, a legal and ethical violation. If the discussions and if the subsequent procedures are conducted negligently, the doctors who refer are not parties to their negligence. And if the procedure should be criminal, again, the doctors who refer are not participants in that crime. So referral is not participation and it does not attract the right to conscientious objection. The last point I'm going to make is that conscientious objection can include objection to comply with hospital's restrictive directives. This is what I call a conscientious commitment, making the point that religion does not have a monopoly of conscience. There can be a conscientious conviction, not simply to decline to undertake procedures, but positively to undertake them. There was a perspective article in the New England Journal of Medicine this month on the 13th of September called Recognising Conscience in Abortion Provision that makes the point that respect for conscience ought to be symmetrical. That is, one ought to respect the conscience of those who object to undertake the procedures and equally respect the conscience of those who are willing to undertake those procedures. And that could include in facilities, in hospitals, that claim those procedures are objectionable and immoral. That is, in the same way that secular non-denominational hospitals have to accommodate the religious conscience of those who object to undertake procedures, religiously sponsored hospitals have equally to accommodate the conscientious convictions of those who want to undertake procedures that the hospital itself, through its senior management, who may not be a doctor, and may be a bishop, finds unacceptable. That is, if the doctor feels the patient ought to be informed of particular options for their procedure, contraceptive options, sterilization options, termination of pregnancy options, the information can, statistically, be given and indeed, under fiduciary duties must be given, notwithstanding the opposition of the administrative management of the institution. Equally, if a doctor feels that a contraceptive prescription is indicated or a prescription for emergency contraception, as you've seen in the Brownfield case in the California Court of Appeal, or even for medication or medical abortion, the doctors ought to be free on grounds of their conscience to write that prescription, notwithstanding the opposition of the institution that employs them. Equally, if they want to undertake procedures that the patients want, this is something that they ought to be free, again conscientiously, to undertake. If, for example, a woman at cesarean delivery initiates a discussion for tubal ligation, then the surgeon ought to feel free to undertake that procedure. And, of course, if procedures require collaboration of colleagues who will not collaborate, such as surgical termination of pregnancy, then the doctors have to refer to appropriate other centers. So my final point as the clock strikes a minute after one o'clock is that if we truly respect conscience, it's not simply the conscience to object, though that merits the fullest feasible protection, but also the conscience to undertake procedures the patients want that are indicated in the patient's health interest. Thank you for your attention. No, it's fairly non-contentious. I doubt that there are any questions, but please feel free. We're talking about, well, mainly the second and third parts to do with the form of the options and the duty to refer to others. And you may have a human saying that these really aren't participation. Correct me if I'm wrong, because this is a logic. These aren't participation, and so therefore, conscience protection isn't applied. But you also recognize the, like you used the example of the Catholic Church and how they are called participation, but it's a complicity. Complicity, correct. So from their point of view, it is participation. Yes, thank you. So making the argument that, look, really, it isn't participation, therefore, conscience protection doesn't apply. Doesn't that come, it seems to me, and misses the whole point of conscience, because conscience from the Canadian Supreme Court, you like Anselm, Anselm said it's from their perspective. We don't impose on them what their conscience believes. Our only test is, do they actually believe it? And if they actually believe it, then we'll give them free and continue believing it. So I don't really see how making an argument saying, no, it's not really participation, therefore, conscience protection doesn't apply. When really, the test should be, do they consciously object to it, and if they do, then conscience protection applies. Is it the same thing for them, abortion, abortion? Then it seems to me that there shouldn't be a difference in what their duty is. Yes, this implicates the rule of law. That is, Article 183 says that the exercise of religion or beliefs is subject to the rights and freedoms of others when prescribed by law, and doctors and hospitals recognising that when we speak about prescribed by law, that involves also the declaratory function as a common law. But because of the fiduciutis that doctors own, the contractual relationship if there is one, the obligation to refer is imposed by law. If that offends conscientious convictions based on complicity, then this is a problem within those who hold that conviction. But that does not entitle the withholding of indicated procedures, the fundamental rights and freedoms of patients who are dependent on those monopolistic professionals for access to care. The complicity argument is based on extending the prohibition of access to services, and that is subject to legal limits. The Catholic Church has said, for example, that with a certain disdain for democratic law, because the church declares a revealed divine law, one can engage, and one can have an obligation to engage in civil disobedience and defy the law in observance of the so-called higher law. But that is rejected under the rule of law. When there are legal duties, then they have to be observed. The courts have said that those required to refer can feel conscientiously discomfited, and they can find this violation of their religious faith, but the acceptance of this concept of complicity would result in services being denied to those who are legally entitled to them. And this is part of the balance. That is the balance favors patients who are dependent on health professionals with a monopoly to provide those services. This is simply a problem that the Catholic Church has to accept. In the same way, for example, that the Catholic Hospital, in the Brownfield case, under direction of the California Court of Appeal, had to make emergency contraception available, even though within the Catholic conception that could violate its prohibitions of undertaking abortion. This is simply a limit of accommodation of religious conscience. See, that's one of the points that from their perspective, it's the same thing. Yes. And then it's not really a balance at all because you have to arbitrarily say, no, this doesn't make sense. Your conscience doesn't make sense at this point, and that's why we're not going to see a lot of this. Yes, and those that that conviction should not voluntarily place themselves in positions where others are dependent on them for services, including the referral, they're not willing to undertake. That is their choice of profession is subject to a constraint, and they have to decide what to do. Courts have to deal very carefully with this, but at times they're willing to. In 1938, in the leading common law abortion case, the Queen Against Born, where the court dealt with a conscientious objection, the judge perhaps went too far in saying that doctors who hold the belief that they shouldn't undertake those procedures and shouldn't defer for them should not practice clinical medicine. But if they choose to practice clinical medicine and induce a community to depend on them for services, they can't withhold those services that they can discharge by referral. This is simply a limit. If their conscience is agonized by it, then as the judge perhaps in due to, as we said in 1938, they shouldn't practice clinical medicine in the same way as the midwives in the Scottish case voluntarily chose a form of employment that they then found to compromise their conscience. They were disciplined, and the one who hadn't taken other employment consistent with her conscience was terminated from employment. And that's part of the burden that goes with accepting a religious conscience. It is not absolute. It's subject to limits to preserve the rights and freedoms of others. This is insoluble, their conflict, soluble only by individuals, and not placing themselves in positions where they induce others to depend on them for services that they will deliver only within self-imposed limits. But then you don't have the doctor's leave at all. I'm sorry. But then you don't have the doctor's leave at all. I'll leave it at all. So I'm wondering about the last point where you talked about the symmetricity. That's the word between the person that has a conscientious commitment to doing certain kinds of procedures. I'm wondering how practically important this point would be because you earlier acknowledged that if somebody signs a contract that says that they will do certain procedures, then they're essentially helped to have to leave them. They can't later have a conscientious objection to. And I would think that in the vast majority of cases, religious hospitals, who write into the contract, you will not perform these kinds of procedures while at our hospitals. So it may end up not being as important. Yes, and this raises questions of equal protection of the law. That is, can they enforce that contract? Can there actually be religious hospitals? Can there be Catholic hospitals? Any more than there could be Jehovah's Witness hospitals that would do so. But you know, I've got transfusion. If one accepts equal protection of the law, then in the same way that non-denominational hospitals are required maximally within reasonable limits to accommodate the conscience of those who refuse to undertake procedures. That is, doctors or engaged officers and gynecologists are engaged to undertake procedures within the scope of their professional specialty. But they are allowed to decline procedures. That is also a breach of contract, but that is accommodated. If one accommodates breach of contract by those who refuse to undertake procedures they're committed to, then one ought to accommodate those who undertake procedures that contractually are denied to them. And it raises questions about whether that is a lawful contract or whether it's against public policy. So for example, in December of last year, a hospital murder in the United States in Kentucky was proposed between a Catholic and a non-Catholic hospital with the undertaking that the new emerging procedure would be a Catholic hospital. And the governor of Kentucky refused to validate that murder saying it's against the public interest because it would result in services, particularly to women, reproductive health services being denied. So questions of public interest were in the balance. And if there are restrictive clauses of employment in contracts between our health professionals and hospitals that have induced whole communities to depend on them for care, then one could have an argument in court that those restrictive clauses are against the public interest and not enforceable. And this is a ground for a financial challenge and contest. I'm following directly up on the conversation you just had. And I've done one thing even prior to that about the extent to which your argument depends on whether the whole community is dependent on it. And I was thinking about both sides, the conscientious objection side and the conscientious commitment side. Is that a necessary element in your view? Yes, it is. And the risk of being parochial, this is an issue that arose in Toronto when there were many hospital mergers, but in particular, one downtown hospital, the Wellesley Hospital, was simply closed down. And all of its patient load was discharged to St. Michael's Hospital. The Wellesley Hospital served a community involving a large number of gay people. They didn't want to get their health services from the Catholic hospital that regarded their lifestyle as an abomination. And also, of course, the new facility wouldn't undertake the reproductive health services, particularly for women. And the deal that was arranged was that although St. Michael's Hospital would retain its status within the Catholic Hospital Association, there would be a separate entity outside the hospital, physically outside the hospital, though financially administered by the hospital, that would not undertake these procedures, but would refer to other hospitals downtown. And this was an acceptable compromise. That is, the hospital would ensure, through this non-hospital agency, that those eligible for procedures, the hospital would not participate in, would deceive them while the hospital though retained its status. But this is part of the challenge in areas where an entire community is dependent on one hospital. And that hospital declines to undertake medically-indicated procedures on grounds of conscience. And this is a challenge that we have to deal with. One of the first conscientious objection issues was around vaccination and immunization. And I'm wondering what you think, I mean, such a fear about health care workers who refuse to be immunized, frontline health care workers. Yes, this is an issue that is coming to a head in British Columbia. And it raises some interesting questions. If a health facility, a public health facility, changes the terms of contractual employment by requiring vaccination, then we know under basic contract doctrine that the terms cannot be unilaterally changed by one party. And so existing staff members would be entitled to object on religious or other grounds. There are, in fact, demographic grounds for refusing vaccination on the ground that receiving the vaccine could be more harmful than the risk in the community at large because of so-called herd immunity. So any individual vaccination could be more dangerous than going unvaccinated and depending on others being vaccinated, sort of a free-liber question. But it could be a legitimate future term of employment that one undertakes vaccination. And that feeds into the wider question of the grounds on which one tolerates immunities. Again, the free rider proposition. And provincial laws vary on this. Some say they would only accommodate religious objections to vaccination. Others will accommodate religious and philosophical and demographic objections. There is rational objections. And that varies from province to province, but accepting that terms of a contract cannot be unilaterally changed while the contract is in operation. Those already employed can be so-called grandfathered and allowed to be unvaccinated. Whether they have to disclose to patients that they are a potential source of infection to patients raises questions of a clinical informed consent. But it could be a legitimate term of future employment, either renewed employment, as in the Glasgow Midwives case, or fresh appointment, that individuals accept vaccination as a condition of being engaged and salaried. I was very interested in your comment of the pharmacist you're using to deal with or a doctor who just makes- I'm going to hear a question for you. With pharmacists refusing to dispense birth control. I'm sorry. You can't hear it. Pharmacists refusing to dispense birth control. One of the questions I have with respect to those particular medications, they can actually be used for other medications like acne and whatnot. And then there's some other medications as a side effect can actually cause problems with fertility, sperm, count, population. So I'm just wondering what are the limits in those scenarios of the rejection? If the patient's states are using it for a different indication, is the conscious, conscious of the actions to be applicable in those situations? It would not be applicable to giving information. That is, if doctors haven't disclosed the side effects, the secondary effects of their prescribed medications, then the pharmacists should. And whether doctors can rely on the pharmacist giving information raises questions of the doctor-pharmacist relation. But pharmacists do have professional obligations to disclose the side effects, the unintended secondary implications of the drugs. And they have to inform the patients of that. And in that sense, the pharmacists, and this could be the justification for keeping certain relatively innocuous medications on prescription so that the pharmacist, the so-called learned intermediary, can inform the patient, the potential patient of the implications of having or going without the prescribed medication. So all of the secondary effects that may be disclosed in the package insert, but of course, patients only read the package insert after they've bought the package. So pharmacists sought to disclose the unintended consequences that certain medications may have beyond the hopes that they will achieve their therapeutic purposes. But if pharmacists refuse to administer, for example, methotrexate or an anti-alsa drug, because it can also be used for abortion, then they have to refer to others. And in that sense, they can, unless the whole community depends on them, such as in the case before the European Court of Human Rights. But if patients have alternative recourse to have the prescriptions filled, then the pharmacists can engage in their right of a religiously-based conscientious objection, but that's separate from disclosing the possible side effects. Methotrexate came to attention as an abortive-faking drug because of the package insert, saying this should not be taken by pregnant women. And of course, that was noticed that the drug may trigger a termination of pregnancy as an unwanted side effect, but of course, implied in that, is it could also be the very purpose of taking the medication. So before I ask you to join me in thanking Bernard, I will advise you that the next seminar in our series is Friday, October 12th. Our guest is Rebecca Cook, who happens to be the spouse of Bernard Dickens. And they call right much of their work. And Rebecca will be speaking with us on the discriminatory effects of criminal abortion laws, prejudices, stereotypes, and stigma. Now, I did something unconscionable earlier when I was doing my introductions, and that is that I mentioned Barbara, but neglected to introduce Barbara Carter, who is entirely single-handedly responsible for the smooth functioning of this entire seminar series. And I'm very grateful to Bernard. I had had a little taste in private conversation of what we would be discussing today, and I fully expected from that that it would be intriguing and formative and challenging. And Bernard, you did all of that for us, and thank you very much.