MICHELLE MANN:
The state, religious freedom, and health
CBC News Viewpoint | May 13, 2005 | More from Michelle Mann
Michelle Mann is a Toronto-based consultant and freelance writer, specializing in social justice, human rights and Aboriginal issues. A lawyer with many years of practice behind her, Michelle now dedicates herself to consulting on and writing about legal, political and policy issues, particularly those with social justice implications.
In post-charter Canada, tensions abound. The constant push and pull between individual freedoms at one end and the interventionist state at the other is a driving force in political and judicial forums. Rarely is the juggling act as complex, however, as when it involves freedom of religion.
Freedom of religion, as protected from the state by Section 2 of the Charter of Rights and Freedoms, is, of course, not immune to state override: Section 1 says rights are subject to "reasonable limits."
Yet governments rightly fear to tread here, as evidenced by the public health response to the recent rubella outbreak in Norwich, Ont., and to forced vaccination in general. Families cannot be compelled to be immunized under current law, and any attempts to do so would surely be subjected to a charter challenge.
Yet, as of May 13, over 120 people have been confirmed as infected with rubella, an outbreak believed to have originated at Rehoboth Christian School, where the majority of students are not vaccinated.
While it is difficult for most outsiders to comprehend, certain religious groups choose not to immunize their children; when they live in a community, they are ripe for an outbreak should a member become infected.
Last year, there were seven reported cases of the disease in Canada, and were it not for such outbreaks, experts theorize that the disease could potentially be wiped out on the continent.
Rubella is of most concern for pregnant women, since the disease can potentially cause miscarriage or serious birth defects. News reports indicate that nine or more pregnant women in the Norwich area have already been exposed.
Immunized women are not considered at risk, so it is logical to assume that these expectant mothers are from the community and likely not immunized for similar religious reasons, much to the chagrin of many outsiders.
Yet state intervention to protect the health of a fetus is a no-brainer since a 1997 Supreme Court of Canada decision wherein the courts refused to allow Winnipeg Child and Family Services to take a pregnant glue sniffing addict into custody to protect her five-month old fetus, concluding the unborn child is not a legal person possessing rights.
I will confess that as a pro-choice feminist, fetal rights are one issue I am not keen to see revisited.
But the courts will intervene to protect a child once it is born, invoking their inherent parens patriae jurisdiction, the power of the state to intervene to protect children whose lives are in jeopardy and to promote their well-being.
This is what the courts did in a recent case involving a 14-year-old Jehovah's Witness who was in an Ontario court trying to have a British Columbia court order overturned. The B.C. court had ordered that she could be forced to receive blood transfusions during chemotherapy if deemed medically necessary by her doctors. She opposes receiving blood products on religious grounds, but was nonetheless ordered sent back to B.C. for treatment, potentially including blood transfusions.
This despite the fact that she was not a health risk to others and was arguably on the cusp of the age of informed medical consent (as compared to simply parroting her parents' views).
How do we distinguish this from a refusal to vaccinate children for potentially dangerous illnesses? Will intervention only be mandated when the threat is considered absolutely life threatening, regardless of whether the child is capable of offering or withholding informed consent to medical treatment?
And how do we reconcile the hands-off approach to vaccination with post-SARS-amended federal and provincial legislation that contains some pretty draconian state powers in case of an epidemic?
Ontario's Health Protection and Promotion Act contains increased provincial powers to quarantine classes of people, rather than just individuals, and the federal Quarantine Act, currently in the works, has increased powers to derail the spread of infectious disease.
Health officials report that just over 90 per cent of people in Ontario (with a population of more than 12 million) have been immunized against rubella. Correspondingly that means almost 10 per cent of Ontarians, or one-million-plus, are unaccounted for.
Undoubtedly, individuals capable of making informed medical choices that do not put others at risk, have the right to refuse treatment, as in the case of an adult Jehovah's Witness who declines blood.
But should religious freedoms trump public health concerns?
Courts have overridden other charter-protected rights, such as liberty and the right not to be arbitrarily detained, in the name of public health. In 2002, an Ontario court approved the detainment and forced treatment of an individual infected with tuberculosis.
Ultimately, where contagion and the best interests of society come into play, state intrusion into individual freedoms, whether rooted in liberty or religion, may well be justified.
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