Let Thy Conscience Be Thy Guide (but not My Guide): Physicians and the Duty to Refer

Daphne Gilbert

Abstract

Since the Supreme Court of Canada struck down the ban on providing and obtaining abortions in its seminal decision R v Morgentaler, abortions have been a legal medical service in Canada. Accessing abortion (and contraception) remains a challenge for millions of women in Canada as the service is unevenly provided and funded. This article considers a recent challenge launched by physicians and physician advocacy groups in Ontario to policy updates by the provincial College of Physicians and Surgeons, the regulatory authority. The amended Policy on Professional Obligations and Human Rights clarified the requirements for effective referrals and the provision of urgent care in the context of religious or conscience-based objections by physicians. Those challenging the Policy argue it violates their Charter-protected rights to freedom of religion, freedom of conscience, and equality. This article assesses both sides of the legal battle: a woman’s rights under the Canadian Charter of Rights and Freedoms to reproductive autonomy and a physician’s right to shape care in line with his or her beliefs. It assesses the Charter‘s application to the delivery and accessibility of abortion services and contraception in Canada. This article argues that, after years of protracted debate, courts should uphold the Policy as being a strong and balanced statement on the need to protect access to reproductive services that are legal and medically necessary abortion.

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