Why ALL Canadian medical doctors should be concerned about what is happening in Alberta

The notwithstanding clause (Section 33) of the Canadian Charter of Rights and Freedoms grants provincial or federal legislatures the power to enact laws that operate notwithstanding certain Charter rights (notably those in sections 2 and 7–15) for a renewable five-year term. Although designed as an extraordinary measure, its invocation in health policy—especially legislation regulating medical care—poses serious risks to the integrity of clinical practice, patient rights and democratic institutions. In Alberta, efforts to use Section 33 to shield gender-affirming care restrictions, among other measures, have sparked deep concern across the medical community and civil liberties circles. I am not a lawyer or politician. I had to do my research to understand the implications of Section 33. Does the premiere of Alberta know more about medicine than the MDs practising in the province? I think not, and I am not alone on this one!Even if you have nothing to do medically with transgender youth or the gender diverse/queer community, what is happening in Alberta right now should be very concerning to you personally and professionally. This is an attack on all of us. For physicians, the stakes are not abstract. The proposed legal strategies challenge foundational principles: the sanctity of clinical judgment, the protection of vulnerable patients, and physicians’ moral and professional integrity. Intrusion into the physician-patient relationship and clinical autonomyOne of the gravest consequences of embedding medical directives in legislation immune from Charter review is the erosion of the physician’s ability to exercise professional judgment. I have a well-developed, nuanced and reasoned opinion based on more than 40 years of clinical practice, including 25 years of transgender medicine consultations. Do any of our current elected representatives passing this legislation have a similar experience to draw from?Clinical guidelines are developed from evolving evidence, expert consensus and individual patient circumstances. A law that mandates or forbids particular treatments, independent of the clinical context, forces physicians to subordinate medical judgment to political dictates. The Canadian Medical Association (CMA) has been unequivocal. In its public statement, the CMA “calls on the Alberta government to refrain from invoking the notwithstanding clause to enact legislation that directly interferes in the clinical care of patients.” It characterizes Alberta’s Bill 26 as an “unprecedented government intrusion into the physician-patient relationship that requires doctors to disregard clinical guidelines, the needs of patients and their own conscience.”By means of Bill 26, the province would dictate exactly which medications may be used, when and under what restrictions in caring for gender-diverse youth. In doing so, “doctors [would] follow the law rather than clinical guidelines, the needs of patients and their own conscience,” the CMA emphasized, regardless of their own clinical experience, which in my case is diverse and extensive.This government intrusion threatens the very essence of medical professionalism. When the law displaces clinical reasoning, the result is protocolized care that may diverge from best practices—and physicians must choose between compliance and professional integrity. I have yet to hear whether prescribing a banned therapy will result in a professional reprimand, monetary penalty, restriction or complete loss of medical licence. Legal insulation and loss of judicial oversightA major danger of invoking the notwithstanding clause is shielding legislation from constitutional scrutiny. Under Section 33, courts cannot strike down laws with respect to certain Charter provisions; the legislation remains valid (so long as renewed), regardless of incompatibility with protected rights.This raises profound implications for physicians seeking to challenge discriminatory or harmful policy mandates. Normally, affected parties (doctors or patients) could appeal to courts to enjoin or invalidate laws that violate Charter protections (for example, Section 7: life, liberty, security of the person; Section 15: equality). But a law entrenched under Section 33 becomes insulated from such challenges. There are legal challenges currently in Alberta courts regarding Bill 26. It must be assumed that the provincial government fears they will lose in court, hence the immediate need to repass the same bills and invoke a notwithstanding clause in tandem. The CMA flagged precisely this risk: “This kind of political interference is unacceptable and risks setting a precedent that affects other national health issues, such as vaccination, reproductive health, medical assistance in dying, or even cancer or surgical care.” If the legislature can override rights in one domain (gender-affirming care) without liability, it emboldens expansion of such overrides into other delicate medical domains.In effect, the law becomes untouchable—placing physicians on shaky footing if it conflicts with accepted standards or professional obligations.Disproportionate harms to vulnerable populations and ethical obligationsHealth laws that limit access to care do not affect all groups equally. In Alberta’s case, the legislation targets gender-diverse youth—a population already facing discrimination, stigma and elevated mental health risks.Amnesty International Canada condemned Premier Smith’s threat to invoke the notwithstanding clause in this context as “cruel and unnecessary.” The Canadian Civil Liberties Association (CCLA) criticized Alberta’s plan as “deliberately undermining the rights and dignity of trans people and sets a dangerous precedent for all Canadians.”From the perspective of physicians, there is a moral and professional obligation not to discriminate or harm. Denying or restricting evidence-based, medically recognized interventions risks violating ethical principles of beneficence, nonmaleficence and justice. The forced denial of treatments known to be effective and accepted internationally is especially concerning when courts have already recognized the potential for “irreparable harm.” In granting a temporary injunction against Bill 26, Justice Allison Kuntz recognized that the law “raises serious issues . . . and the injunction is needed to prevent ‘irreparable harm’.” When patients are denied access to medically appropriate care because of legislative fiat, physicians may face impossible choices—either to abandon patients or to risk legal or regulatory sanction.Moral distress, professional liability and and systemic disruptionPhysicians compelled to practice contrary to medical standards may experience moral distress—a sense that one is complicit in harm. This internal turmoil can contribute to burnout, leave the profession or disengage from sensitive domains of care.Furthermore, even if physicians obey the statute, legal standards (e.g. malpractice law) often refer to clinical guidelines and accepted standards of care as benchmarks. A mandate that conflicts with those benchmarks may expose physicians to liability, professional discipline, or reputational harm.Beyond individual distress, the system-wide consequences can be severe. Medical education, institutional protocols, and continuing professional development rely on freedom to evolve standards based on evidence. Embedding fixed, politically mandated rules can create fragmentation, conflicts between institutions and confusion in care delivery.Democratic and constitutional integrity: precedent and slippery slopeThe Charter of Rights and Freedoms was designed to balance legislative authority with protection of individual rights. The notwithstanding clause is a check on judicial supremacy—but intended to be used sparingly. Its regular use in health policy degrades that balance. Critics warn that the clause was never meant to be “a blunt political tool to override Charter rights.” As Howard Sapers, executive director of the CCLA, put it, “By trying to shield these laws from constitutional scrutiny, the government of Alberta is deliberately undermining the rights and dignity of trans people and sets a dangerous precedent for all Canadians.” In the context of trans health, Aaden Pearson, Trans Rights Legal fellow at the CCLA noted: “These laws are discriminatory and harmful, and only deepen the marginalization of trans and gender-diverse people . . .. Government should be removing those barriers, not trampling fundamental rights and freedoms by cementing them into law.”Indeed, Helen Kennedy, executive director, Egale Canada condemned Alberta’s plan as “an unconscionable attack on 2SLGBTQI people, and a horrific example of state-sponsored transphobia.” “When our governments abuse their power by invoking the notwithstanding clause to limit the protections of the Charter of Rights and Freedoms, it’s not just an attack on queer and trans communities—it is an attack on all Canadians,” she recently told Global News. By applying the clause in one domain, Alberta’s government may normalize its use in others—reproductive rights, end-of-life care, vaccines, mental health. Once the barrier to override rights is lowered, every subsequent legislation becomes more vulnerable to politicization.In practical terms, Alberta’s internal government memo signals appetite to pre-empt judicial intervention: “because the courts may take ‘years and years and years’ to resolve the issue, then we may have to take that measure in order to protect kids.” This raises the spectre of using Section 33 not sparingly, but as default legislative shield whenever courts might find fault.To reiterate, a provincial government invoking the notwithstanding clause to circumvent constitutional protections over medical care should alarm every physician. This is not a theoretical constitutional debate but one with immediate, pragmatic impact on patient well-being, professional integrity and the legitimacy of the medical profession. Invoking Section 33 in health policy makes medical decisions subject to political calculation rather than clinical evidence. It strips away legal recourse, weakens public trust, and places physicians in intolerable ethical binds. As the CMA warns, the precedent “risks setting a precedent that affects other national health issues, such as . . . cancer or surgical care.”For those MDs who struggle with the notion of gender diversity and transgender medicine—just wait. Many other health domains, including your medical speciality, might be next . . . Dr. Ted Jablonski is a performing artist and writer who has retired his family practice to focus on sexual medicine and transgender health in Southern Alberta, all while keeping his feet firmly planted in the front-line trenches of acute primary care.

Why ALL Canadian medical doctors should be concerned about what is happening in Alberta

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