Ryan Tonkens discusses the impact of ‘willing physician clauses’ on physician-assisted dying and abortion in Canada

___________________________________________________________________________________________

While ideally bioethicists and physicians see eye-to-eye, this is not always the case.

In certain contexts, the impact of sound bioethical conclusions depends on physicians knowing and accepting those conclusions, and being guided by them in their practice on the front line. Otherwise, those legitimate ethical insights, which deserve to be adopted in practice, would fail to have any real impact on medical practice. If there is such a thing as moral progress in bioethics, it has the ability to be halted and snuffed out by those physicians that want to maintain the moral status quo, even in the face of genuine bioethical progress.

One example of this at play is with respect to physician-assisted dying in Canada. For example, if Quebec is successful in its recent bid to have physician-assisted dying included under provincial health care services, it does not necessarily mean that the practice will become a common one in Quebec, or that physicians will agree to perform it in practice, and it certainly does not mean that physicians would be forced to help their patients to die. Indeed, the draft of the proposal in Quebec included what we might term a “willing physician clause”, reminiscent of Dworkin et al.’s Philosopher’s Brief in the United States. Even if requesting physician-assisted dying is within a patient’s rights, being able to exercise that right would all along depend on receiving that service from a willing physician, which may or may not be available.

While this remains to be seen in the case of physician-assisted dying in Quebec, it is already occurring in the case of abortion. While abortion is legal in Canada, and it is widely recognized that outlawing abortion is in direct conflict with certain rights that women have, clinical abortion is still not available in all provinces and territories in Canada—the notable exception being the province of Prince Edward Island. Residents of PEI that need to have a surgical abortion are forced to leave the island and travel to another province in order to receive the care that they need.

To some extent, the willing physician clause is satisfied in this case, because women living in PEI can have their abortion and the necessary travel funded by the PEI government, to visit a hospital in Halifax (for example). Some are not satisfied with this compromise, however, and suggest that it is not ideal for women, and unfairly hinders their medical care.

One reason why surgical abortion is not available in PEI, despite its being legal in Canada, is that there are no willing physicians in PEI to accommodate such (legal) requests. Thus, for practical intents and purposes, it is as if abortion is not allowed in PEI.

This does not mean that there are no physicians practicing in PEI that believe that abortion is morally permissible, or that there are no qualified physicians in that province that could serve as abortionists, or that there are no female residents of PEI that require safe abortive services. (In recent years, an average of 120 residents of PEI seek an abortion annually). Rather, the reasons for why these physicians refuse to offer surgical abortion seem to come down to threats of social stigma, community exile, and resulting personal financial loss, rather than (exclusively) religious or moral beliefs and values. To some extent, this is understandable. Yet, at the same time, if every province and territory in Canada were like PEI, then, for all practical intents and purposes, it would be as if abortion is illegal in Canada, even though it is not (and ought not to be).

The willing physician clause is a potent challenge to bioethics in practice, and overcoming it (i.e. finding a way to respect physicians without compromising law or morality) will require sustained discussion and partnership between bioethicists and medical professionals.

In the meantime, despite bioethicists and physicians not always seeing eye-to-eye, perhaps over time an alignment between the law/morality of abortion and medical practice will be achieved—it is just a matter of being patient. This, however, will be of no solace to current residents of PEI that require surgical abortive services, especially those that are unable or unwilling to use out of province service for whatever reason. Nevertheless, perhaps someday there will be an abortion clinic in PEI. But this will happen only if a willing physician emerges from the abyss. (According to a recent CBC news article, since the legalization of abortion in Canada in 1988, no qualified physician has ever applied to Health PEI or the PEI Medical Society for privileges to perform surgical abortions and been denied such privileges. This means that no physician has ever applied for such privileges in PEI).

According to a recent article in PEI’s The Guardian, there is at least one physician in PEI that is currently willing to perform chemically induced abortions (and not surgical abortions). This is a step in the right direction. However, that this physician is unwilling to reveal his or her identity out of fear of public backlash is as discouraging as it is typical, and puts obvious limits on his or her availability to help women in need.

Perhaps the best solution to this problem is to put a call out for a new wave of medical martyrs, physicians willing to provide morally acceptable yet controversial services—like surgical abortion—and make their identities known to potential patients, even in the face of personal and social hardship. I have in mind here people like Ben Reitman and Henry Morgentaler. Otherwise, it seems likely that it will continue to be as if surgical abortion is illegal in PEI, even though it is not (and ought not to be).

____________________________________________________________________________________________
Ryan Tonkens, Postdoctoral Research Fellow at Novel Tech Ethics, Faculty of Medicine, Dalhousie University