Conservative Party leader Erin O’Toole recently found herself at the center of the abortion debate as she hit the campaign trail ahead of the September 20 federal election.
Controversy arose when he said he was supportive, as well as claiming that he supported the rights of physicians to refuse abortions on grounds of conscience.
He has since withdrew from that position, claiming that physicians should still provide referrals even if they themselves objected to providing abortions.
However, while referral is often called upon to strike a fair balance between physician and women’s rights, it is unclear whether this is actually true.
infringement of rights
The abortion debate in Canada is old, and the sides are well connected. Part of the debate is the argument that if a physician truly believes that abortion equals murder, then asking that physician to engage in such an action would be a gross violation of conscience and religion. But allowing a physician to refuse an abortion is an equally profound violation of women’s freedom, safety and autonomy rights.
O’Toole suggests that physicians should provide referrals in cases where they object to abortions themselves, which, however, is not new. Some provinces, such as Ontario, already require physicians to make “effective referrals” when they are unwilling to perform medical procedures themselves. However, many provinces do not do this.
One of the defining moments in the abortion debate in Canada was 1988. R vs Morgenteller Case – A landmark decision by the Supreme Court of Canada that decriminalized abortion.
One of the major arguments raised within the case, and in particular by the majority of judges, was that delaying access to abortion can have enormous physical, emotional and psychological effects on women in need or wanting an abortion. The court argued that timely access to abortion was important to protect the safety interests of women.
O’Toole’s stance doesn’t work
These same accessibility concerns remain an issue today. In particular, the question of whether physician referrals are sufficient to protect the rights of both women and physicians is an important one.
Despite O’Toole’s claims that he can both be supportive and protect physicians’ discretion rights, his solution to the need for referrals ultimately serves neither physicians nor women.
On the one hand, if a physician truly believes that abortion is homicide, outsourcing it to someone else will not reduce the burden of physician discretion. In fact, these concerns about continued collusion formed the basis of the appellant’s arguments in the 2019 Ontario Court of Appeal abortion case. The court ruled that referral struck a fair balance between the rights of women and physicians.
On the other hand, allowing doctors to make referrals places an undue burden on women seeking abortions. This is especially true in rural or remote communities, where access to health care is already limited.
Seeking to annul a pregnancy is not a decision that most women take lightly. In fact, they are a highly vulnerable group, and many exist in a precarious position – whether due to age, abuse, financial struggles or health concerns. In some cases, abortion may be time-sensitive.
Women in neither of these situations can go from doctor to doctor – potentially being sent outside their communities to seek help.
In this sense, the delay in access due to denial of services or allowing referrals would have the same serious physical, emotional and psychological effects as the Supreme Court in itself. Morgentaler ruling.
Abortion problem remains in 2021
Access concerns were at the heart of the Supreme Court Morgentaler Decision. And unfortunately, even three decades later, women in Canada still face significant obstacles. The issue of access and rights needs to be considered in any policy regarding abortion.
Of course, this is a balance that is not easily struck. But perhaps the first step is to recognize the real right to abortion. NS Morgentaler Declaring the access to abortion as a right under the Charter of Rights and Freedoms fell short. This left a policy vacuum around abortion that has led to inconsistent access across the country – a condition that negatively affects both women and physicians.
However, legislating a woman’s right to timely access to an abortion, rather than ensuring that she is not punished for having one, is the first step towards striking a balance between the rights of women and physicians. .
The only way to truly protect the discretion of physicians to refuse abortion is to make abortion more readily accessible to women who need and want it across Canada, so that abortions depend on those doctors. Don’t be those who don’t want to.
It’s easy for O’Toole to say that physician referral is the answer to the abortion debate. But if he is serious about protecting the rights of both women and physicians, he must expand abortion rights and access when he is elected prime minister on September 20.