Updated: Jun 18, 2022
The Baby Boomers strike again.
This week, the Ontario Court of Appeal—the highest-level court in the country to consider a case of physicians’ freedom of religion—endorsed a lower court’s ruling that all physicians must enable their patients to engage in abortion, assisted-death, or several other ethically questionable procedures.
Physicians must either provide such procedures or give a direct referral to a physician or agency who will.
The Ontario Court recognized that the Charter of Rights and Freedoms acknowledges physicians’ right to refuse to serve as an accessory to what they view as a moral crime. But the three justices ruled that other principles took precedence over those rights.
Equal access to legal medical procedures—which sounds fair enough, but more about that below. And also patients’ avoidance of “shame and stigma,” which sounds, well, oddly disproportionate when measured against physicians’ sincere concern not to assist in the killing of people under their care.
The legal experts have offered their arguments, and I found useful material here, provided by the Evangelical Fellowship of Canada, an intervener in the case. Let’s look at the decision here in the broad terms of cultural history.
Since the 1960s, Baby Boomers have enjoyed a kind of perpetual adolescence, and particularly a quest for maximal personal freedom and the extension of justice to those the Boomers deemed worthy of it. Genuine good has come from the resulting half-century’s campaign. In many respects, Canadian society cares for the poor, the disabled, the non-white, the female, the sexually different, and other marginalized groups better than we did before.
Along with that agenda, however, has come the adolescent tendency toward simple, even binary, views. That trait is perfectly understandable in young people just getting acquainted with the adult world. But so many Boomers, well into their senior years now, seem never to have jettisoned such an outlook.
Thus the Ontario Court’s decision is phrased in terms of the most pitiable cases: patients who don’t speak English, who have little education, who lack mental health, or who otherwise cannot easily navigate the complexities of our current medical systems. This all sounds commendably compassionate—except when one pauses to consider that it isn’t the physicians’ fault that health care is being delivered in such a complicated fashion.
It isn’t the physicians’ fault that people who want a single, clear thing done—terminate the life of one’s fetus, terminate one’s own life—apparently need the help of a person with years of university education just to find someone who will do it.
Indeed, in the internet age, how hard can it be to locate a list of people to do a particular thing—particularly if, as the Court heard from those who want to coerce physicians into compliance, it is so very important that people get what they want as quickly as possible? Why can’t there be a single website and phone number?
As it turns out, there are such things. Other provinces provide them—in part to accommodate the conscience rights of physicians who don’t want to refer. But no, this court ruled, it is at least possible that some Ontarians might still be confused, or might take a while to figure things out and thus not immediately get what they want, or might just feel stigmatized when their physicians don’t readily agree with them that killing their unborn child, or themselves, perhaps isn’t the optimal solution to their problems.
(Does this list of undesirable situations, which the Court held to be more important than accommodating the fundamental sense of the sanctity of human life held by the religious physicians, sound like a list of grievances a petulant teenager might generate?)
To accommodate every possible patient’s feelings and to get each one into the hands of purveyors of these procedures as quickly as possible, conscientious physicians, in the unimaginative and unsympathetic wisdom of the Court, should be compelled to participate in a broken bureaucracy toward what they deeply feel are wicked ends.
The Court could have taken a different route. The Court could have placed the responsibility for fixing a bad system on…the bad system. The Court could have mandated that government ministries of health improve the way patients access such legal procedures as abortion and medically assisted dying so that they can indeed “self-refer” without confusion, delay, or other hassle.
If, that is, governments wish to legislate new policies that are obviously abhorrent to the religious values of many of their constituents, the courts should require those governments to take responsibility for obliging those values. If they don’t, then religious freedom in Canada means nothing.
This week, however, yet another court, like so many courts and legislatures across the country in our time, has found it easier to just abrogate the rights of dissenters—they’re wrong, anyway—and force them to do the state’s bidding.
The Ontario Court recognizes that conscientious physicians will have to change specialties or even leave the practice of medicine entirely. Clearly, however, the Court doesn’t care. Not everyone matters in such situations. The people who matter are those who cannot fully participate in the regime of maximal individual freedom and convenience because it is that regime that matters supremely, and those people who won’t conform to that regime can and will be dismissed.
The Supreme Court recently decided something similar regarding Trinity Western University. Now those promised new law school places won’t exist—for anyone—but so what? The values of the Righteous Regime were upheld, even if precisely no actual person was advantaged and the interests of many actual people were summarily swept off the table.
Too bad that there won’t be as many doctors with the conscience to resist whatever the state happens to hand down this week, or next. The Ontario Court of Appeal, speaking for the citizens of Ontario, apparently doesn’t want medical professionals to decide according to their extensive training and deeply held moral convictions what is in the best interests of their patients. Ontarians apparently do want government functionaries who will execute policy without making their patients even slightly uncomfortable in the process.
(Be careful what you wish for. You demand robots? You’ll get robots.)
This is the mentality of the mob, the tyranny of the majority feared by wise political thinkers back through Tocqueville to Madison to Locke. It’s the insistence that everyone behave the same way or get out. And totalitarianism doesn’t sound any better whether it comes from a cool kid like Justin Trudeau or a bully like Doug Ford—or nerds like those on the bench of the Ontario Court of Appeal. Indeed, it all sounds, come to think of it, just like high school.
Deciding how to reasonably accommodate legitimate religious beliefs takes poise, imagination, courage, patience, forbearance, and a mature sense of what matters most. It requires a certain humility about oneself and one’s convictions, and a certain regard for others and theirs.
It requires thinking—and legislating—like adults.