In the U.K., two Catholic midwives, Mary Teresa Doogan and Concepta Wood , have just won an important court case regarding the conscience clause in the Abortion Act 1967 . Although this is a Scottish case, the Act applies to England and Wales, too, so the decision has implications for the whole of Great Britain.
The conscience clause in the Abortion Act 1967 provides that “no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection.”
The two midwives were employed by the Greater Glasgow and Clyde Health Board in a supervisory position as labor ward coordinators at the Southern General Hospital, the principal maternity hospital in Glasgow.
Early abortions take place in the gynecological unit; abortions after eighteen weeks are carried out in the labor ward. Following reorganization of maternity services in Glasgow, the Foetal Medicine Service, which provided centralized specialist diagnostic facilities, including the diagnosis of fetal abnormality, were transferred to the labor ward at the Southern General Hospital. Thus, the number of abortions carried out in the labor ward increased.
As a result of concerns over the increase in terminations, the two midwives initiated a formal grievance procedure in September 2009 in which they sought confirmation that, having expressed a conscientious objection to the termination of pregnancy, they would not be required to delegate, supervise, or support other staff in the participation and provision of care to patients undergoing medical termination of pregnancy, at any stage in the process.
Their employer ruled that “delegating to, supervising, and/or supporting staff who are providing care to patients throughout the termination process does not constitute providing direct 1:1 care.” (“1:1 care” refers to the medical termination of pregnancy under Section 1:1 of the Abortion Act 1967.) This ruling reflected in the guidance given for many years by the Royal College of Midwives and the Royal College of Nursing that the conscience clause only applied to direct participation in the termination of a pregnancy.
The midwives petitioned the Court of Session for judicial review and, in the Outer House on February 29, 2012, the Lord Ordinary, Lady Smith, accepted the distinction between direct and indirect care and upheld the ruling of the employers. Construing the word “treatment” in the conscience clause, she said, “It seems to me that the ordinary meaning is that the word refers to that which is capable of bringing about and has as its purpose, the termination of the pregnancy—in present practice, giving the abortifacient drugs.”
The Petitioners appealed and in the Inner House on April 24, Lady Dorrian, giving the opinion of the court , quoted an English case:
The treatment in question, as Nolan J. observed in Janaway , is: ” . . . not begun or, I imagine, finally decided upon before the patient arrives at the hospital. The treatment is not simply abortion. It includes pre- and post-operative care. It covers the case where, for one reason or another, no abortion in fact takes place.”
She went on to say that “In our view the right of conscientious objection extends not only to the actual medical or surgical termination but to the whole process of treatment given for that purpose.”
She concluded that “The conscientious objection in section 4 is given, not because the acts in question were previously, or may have been, illegal. The right is given because it is recognized that the process of abortion is felt by many people to be morally repugnant. As Lord Diplock observed in the RCN case, it is a matter on which many people have strong moral and religious convictions, and the right of conscientious objection is given out of respect for those convictions and not for any other reason. It is in keeping with the reason for the exemption that the wide interpretation which we favor should be given to it. It is consistent with the reasoning which allowed such an objection in the first place that it should extend to any involvement in the process of treatment, the object of which is to terminate a pregnancy.”
The court appears to have been influenced by the consideration that “The effect of the interpretation contended for by the respondents [the employers] would be that whether one of the reclaimers was able to exercise their right to conscientious objection would require to be assessed on a task by task basis. That in itself might not be easy to manage. Moreover, it is debatable whether safety would be compromised more by what the reclaimers [the midwives] propose than by a system which places on those who may already be struggling with their conscience the additional burden of having to assess whether each task comes within the scope of their conscientious objection and of having to re-state that objection, possibly on a daily basis. On the reclaimers’ interpretation, the matter would be clear from the outset and management structures and protocols could be devised (as seem to have been possible to some extent previously) to deal with the situation, in respect of procedures which are, for the most part, elective ones.” It is difficult to disagree with that.
An appeal could be taken to the U.K. Supreme Court.
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