Update: As this was being readied for posting, the standing committee on private bills and private members’ public bills voted to recommend that Bill 207 not move forward in its current form, meaning that the bill will not be proceeding to the floor. I have elected to post this anyway, given the possibility that the proposal might be resurrected and amended at a later date.
At a first casual glance, the stated premise of Alberta’s Bill 207, Conscience Rights (Health Care Providers) Protection Act, might sound reasonable: most people wouldn’t expect medical professionals who object to procedures like abortion to be required to perform them.
In practice, Alberta’s College of Physicians and Surgeons already allows medical professionals to opt out of medical procedures that they have a religious objection to (a status quo that is at times problematic), so long as they provide any referral or direction to comprehensive information needed, ensuring that their patient still receives care in a timely manner. Bill 207 removes the obligation to refer and/or ensure patient care — using the reasoning that providing a referral is sort of like participating in the procedure. Regardless of any urgency or medical appropriateness of care in any given situation, this change allows refusals to increase the time delay to accessing care (regardless of any urgency), put the burden of medical care back on the patient, and be a kind of barrier and discouragement, if not more. Indeed, it can be like making someone start over from scratch. Proponents of the bill say that because medical care is still available elsewhere, it isn’t really being denied, which is technically true… but the time, emotional and informational barriers cannot be discounted.
But while those advancing the bill claim it is only codifying that status quo in law, there are more things that Bill 207 does, many of which have received little attention by media.
The bill extends conscience rights to health-care organizations, as well. While religious care organizations have already asserted conscience objections in many ways already, this codifies it in law. It also allows organizations to assert their conscience-based decisions over those of their facilities, staff and resources. By way of example, Covenant Health (Canada’s largest Catholic health-care provider) owns 16 health-care facilities throughout the province, including two major hospitals in Edmonton; its affiliate Covenant Care owns another seven assisted living and long-term care facilities. In some rural areas of Alberta, all or most facilities are religious-owned.
In short, this moves Alberta down a landscape in which anyone in the chain of service provision — from facility administration to lab technician and pharmacist — can create a roadblock to services, without consequence. This becomes even more concerning when one realizes the potential for administrative staff, clergy or even outside groups to apply pressure to doctors and clinics to deny services that they might not otherwise have initially had objections to.
In fact, by the text of the law, it is left entirely up to the health-care provider or religious health-care organization to determine if their conscientious beliefs would be infringed, and there really is no appeal process to see if there is some agreeable compromise. No record is kept, leaving no way to follow up to ascertain if the patient has ever received the care they needed or sought. Gathering statistics about patients denied care in order to inspect what consequences the law has had becomes impossible, as demonstrated elsewhere.
By the text of the law, if a regulatory body receives a complaint about denial of care having to do with conscience, the complaint must be discarded (there is a caveat that complaints or portions thereof that are not conscience-related are not discarded). They are not allowed to investigate or question the decision:
5(1) On receiving a complaint in accordance with section 55(1) of the Health Professions Act, the subject matter of which is a health-care provider’s decision not to provide a health-care service based on their conscientious beliefs, the complaints director for the regulatory body that received the complaint must immediately
(a) dismiss the complaint, and
(b) provide notice of the dismissal to the complainant.
It also specifies that by law, “a health-care provider’s decision to not provide a health-care service based on their conscientious beliefs is not to be considered as unprofessional conduct,” and providers and/or organizations are immediately shielded from legal liability.
There is also an amendment to Section 7(1) of the Alberta Human Rights Act, to immediately shield any employee from termination or discrimination based on their conscientious beliefs. This amendment is not restricted in any way to the medical profession, and could conceivably provide a shield for harassment and abuse of one’s co-workers or customers because of one’s religious or conscientious beliefs.
The bill’s proponent, MLA Dan Williams, has promised a number of amendments to Bill 207, but in those proposed changes, none of these points is substantively changed. One of his proposals — to restore a duty to assist “if not providing the health-care service would result in an imminent risk of death” — isn’t altogether reassuring about the thought that was put into the bill in the first place… but even with that change, there is no clarification on whether or how the legal shield and barriers to reporting and investigation might be changed in the event of a patient’s death (especially in cases in which it was not thought that there would be an “imminent risk”).
There are many hypothetical situations that one can suggest could arise as a result of this legislation. But this is not uncharted territory. It is very easy to look at places where “conscience” exemptions have been implemented or attempted — or where medical personnel or organizations have attempted to assert their conscience rights — and see how it has affected medical care for patients.
“I was nervous and excited about the consult for my first intrauterine device (IUD) at MedStar Georgetown University Hospital. After a brief conversation, Dr. Case (a pseudonym) asked me to get off the exam table and follow her to her office for a ‘chat.’ But in her office, when the door was safely shut, my excitement slowly started to fade. ‘Well, first things first, this is a Catholic hospital,’ she said in a mock whisper…”
Evann Normandin, writing at Rewire this past May, described what happened to her when hospital policy prevented her from getting an IUD. She left with a referral… and shaming. Although referrals don’t come with the added expense of multiple visits in Alberta, like south of the border, the expense of time and transportation remain, and can pale in comparison to the emotional cost of the refusal itself:
“… On my way out of the labyrinthian building, I scrunched up the unofficial paper in my hand. The ripped edges felt sharp against my skin. In the Uber ride home, after paying transportation to and from my apartment to a world-class hospital and forking over a $50 copay for unsolicited advice about my vagina, I cried…”
At Huffington Post, Ace Ratcliff described her fight with doctors over her need for a hysterectomy:
“My illness’ severity [hypermobile Ehlers-Danlos syndrome] led me to the conclusion early on that childbirth would irreparably damage my already broken body and would never be the right choice for me. My joints dislocate painfully and at random. I have difficulty swallowing food. I bruise like an overripe peach. I faint if I have to stand for too long. Wounds take much longer to heal on me than on a normal human.
“… Somehow, my personal autonomy, my health and my comfort didn’t rate high enough to outrank the desires of my future, then-nonexistent partner. And nothing I said could change my doctors’ minds [about a surgical hysterectomy], not the stories about my frequently dislocating hips, my mom’s complicated pregnancies or the increased rate of miscarriage and preterm labor for EDS patients…”
In another instance, the hospital’s policies would have allowed the removal of a dislodged IUD, but the doctor thought the policies wouldn’t, and refused care. The patient was sent home, limited in her options by her insurance company (not applicable in Alberta, but limits on options can occur because of other factors, such as rural accessibility), and she ultimately had to file suit:
“Her doctor confirmed the IUD was dislodged and had to be removed. But the doctor said she would be unable to remove the IUD, citing Catholic restrictions followed by Mercy Hospital and Medical Center and providers within its system.
“… It felt heartbreaking,” Jones told Rewire. “It felt like they were telling me that I had done something wrong, that I had made a mistake and therefore they were not going to help me; that they stigmatized me, saying that I was doing something wrong, when I’m not doing anything wrong. I’m doing something that’s well within my legal rights…”
Something that Bill 207 does not address at all is any duty of physicians to discuss every option available to a patient. If referring is equated to participating in an objected-to procedure or medication, then one might tacitly assume that providing comprehensive information on that procedure or medication can be denied. Withholding medical information can have serious consequences:
“… a woman was traveling across the Midwest when she developed abdominal pain. She and her husband went to the nearest hospital, where she was diagnosed with a potentially fatal ectopic pregnancy. The doctors recommended immediate surgery to remove the fallopian tube containing the misplaced embryo, a procedure that would reduce by half her future chances of conceiving a child. They failed to mention that a simple injection of Methotrexate could solve the problem, leaving her fertility intact. (In fact, at a secular hospital she found on her smart phone, it subsequently did.) Why the omission? The Catholic hospital where she got diagnosed was subject to the “Ethical and Religious Directives” of the Catholic bishops, which state, “In case of extrauterine pregnancy, no intervention is morally licit which constitutes a direct abortion…'”
In fact, denial of comprehensive information is a recurring issue when medical conscience exemptions are asserted.
Of course, some of these examples focus on the emotional impact, but that doesn’t mean that there aren’t serious physical consequences potentially at stake:
“After about 10 hours, the patient’s temperature soared to 102 or 103 degrees, Ralph recalled in an interview with Rewire in June, a few months after the incident. Ralph and her team gave the patient medication to induce labour. But Ralph could not administer mifepristone, which the American College of Obstetricians and Gynecologists (ACOG) considers part of the most effective drug regimen for such cases. The Catholic hospital didn’t carry the drug, which is commonly used for medication abortions — a failure Ralph believes was religiously motivated and needlessly prolonged her patient’s labour.
“… For more than 24 hours, the patient laboured through painful contractions. She bled heavily, requiring at least one blood transfusion. Her lips and face lost their colour. Finally, she delivered a fetus that had no hope of survival…”
The full extent of Bill 207’s reach isn’t understood either, until you realize that “medical provider” covers a wide range, as noted in an Edmonton Journal editorial:
“The list is long and includes emergency, primary and critical care paramedics; midwives, chiropractors, podiatrists, psychologists and psychiatrists; lab, respiratory, ultrasound and X-ray technologists; pharmacists, physiotherapists and physical therapists; opticians and optometrists; dieticians and nutritionists; anesthesiologists, surgeons, and social workers; audiologists, dental professionals and speech-language pathologists…”
“Joan Chand’oiseau of Calgary recently posted a photo on Facebook of a sign on her physician’s office door that read, ‘Please be informed that the physician on duty today will not prescribe the birth control pill…'”
It also raises questions about access to hormone therapy for trans patients, or the possibility of throwing in a bit of public humiliation for good measure:
“‘Sir, we canceled your prescription because we couldn’t figure out why a man would need female hormones,’ said the voice. ‘You’ll have to have your doctor call us to confirm this is correct because it doesn’t make any sense…'”
Indeed, trans health is just as likely to be impacted as reproductive health, and doesn’t even have to be about transition-related medical concerns. Trans people regularly report what they’ve nicknamed “Trans Broken Arm Syndrome” — that is, the refusal of care for basic health services just because they’re trans. And it does indeed happen in Canada:
“According to the College of Physicians and Surgeons of Saskatchewan’s charge of unprofessional conduct and the penalty presentation, the incident took place on Jan. 5, 2016, when Anderson saw a patient for ‘reasons related to bronchitis’ — something completely unrelated to the patient’s transition to male from female.” According to the documents, the disciplinary hearing committee found it ‘probable’ that Anderson ‘launched into an unsolicited running commentary’ regarding transitioning. Anderson made statements ‘which were insensitive and unrelated to the reasons for which the patient requested your medical services,’ according to the charges against Anderson…”
It should also be asked what conscience protections might do to protect the still-persistent practices of reparative therapy in Alberta (albeit with coded language). But that aside, denial of basic care is something that all LGBTQ+ people have had to worry about, sometimes even with lethal effect in situations that didn’t initially seem to pose an “imminent risk”:
“Refusing to treat patients can be be deadly, as was the case in 1995, when Tyra Hunter, a transgender woman, lost her life after emergency medical technicians refused to assist her at the scene of a car accident. According to the Center for American Progress, had Hunter received care, her chances of surviving were 86 per cent — she should have lived…”
Medical assistance in dying is another area in which medical access is an issue, and in this instance, access is even more seriously limited. It is estimated that the aforementioned Covenant Health (and affiliates) oversee up to 90 per cent of the long-term care beds in parts of Alberta, and regardless of whether long-term care patients are healthy enough to be moved, doing so is sometimes necessary just to have questions answered, because of facility policies:
“Covenant Health stated in May of 2016 that it has an ‘ethical and moral opposition to medical assistance in dying’ and that the organization’s ‘unequivocal position to not provide or explicitly refer’ must be recognized. Functionally, this means that any assessment of capacity, any answering of technical questions, and the act of assistance in dying itself would require a transfer away from a Covenant facility.
“… The case of Ian Shearer, an 84-year-old Calgary man living in Vancouver with palliative heart and kidney disease and severe chronic pain, brought attention to how transfers can do harm. Shearer was denied a request for medical assistance in dying from St. Paul’s Hospital, a Catholic facility near where he lived and where he’d been admitted for care. On the day he chose to die, his ambulance was delayed three hours and his medications were withheld to allow him to confirm consent. The ordeal, last August, was described by his daughter as ‘unnecessary… excruciating suffering…'”
Obviously, the out-of-province and out-of-country examples won’t exactly mirror what would happen in Alberta, because of circumstantial differences in things like medical coverage, but what this demonstrates is the extent to which individuals might be willing to abuse a conscience protection, and the twists of logic involved. From the firing of doctors for not adhering to an organization’s conscience policies, to the chilling effect on medical care caused by activism from anti-abortion groups against clinics just for hiring doctors who’ve performed abortions elsewhere in the past, to medical residents who openly vowed to give the wrong medications to specific groups of people, to some some truly backwards beliefs about medical interventions…
“Throughout the conference’s diverse and highly academic presentations, one discernible theme emerged, namely, that ‘brain death’ has been invented to harvest viable organs from still-living people. Only when a person’s heart stops beating and their breathing ceases for a determinate amount of time can it be said that death has truly occurred…”
… the politics surrounding medical conscience exemptions raises a broad range of concerns.
It is likely that Alberta’s Bill 207 would not survive a legal challenge. Indeed, the same day that the bill was introduced in the Alberta legislature, a similar policy was overturned in the U.S. Likewise, a ruling in Ontario last May affirmed patients’ rights to referrals when care is denied.
But getting there could be another long, legally costly process, with very real human collateral damage caused along the way.
Mercedes Allen is a graphic designer and advocate for transsexual and transgender communities in Alberta. She writes on equality, human rights, LGBT and sexual minority issues in Canada, and the cross-border pollination of far-right spin. This blog also appears on DentedBlueMercedes.
Image: Adobe Stock