The right of health professionals to exercise their conscientious objection to participating in abortion – or indeed to choose on occasion to limit the areas in which they work in order not to be ethically compromised – has been under assault worldwide for some time now. It is increasingly perceived as a major obstacle to unfettered, whole scale reproductive ‘rights’.
Now the right of health professionals to exercise their conscientious objection has been put under even more pressure in the UK after the Supreme Court rejected an appeal for conscientious objection for senior midwives who refused to supervise abortions performed on a labour ward. It has also delivered a controversial ruling on referrals for abortion.
A significant number of doctors already refuse to participate in carrying out abortions, including an increasing number of younger doctors, so the job is increasingly being given to nurses and midwives under the loose direction of doctors.
But many nurses and midwives are also not prepared to participate in abortions, directly or indirectly.
Therefore, two midwives from Glasgow took a case to Court in order to define the scope of conscientious objection under the 1967 Abortion Act.
Midwives Mary Doogan and Concepta Wood were employed as labour ward coordinators at the Southern General Hospital in Glasgow. Theywere concerned that the reorganisation of maternity services would result in an increased number of abortions being carried out on the labour ward, and that their objections to playing any part at all in these procedures would not be respected and accommodated:
‘The outstanding issue was their continued objection to “delegating, supervising and/or supporting staff to participate in and provide care to patients throughout the termination process”’.
However, the health board maintained that the Abortion Act 1967 did not give the midwives any right to refuse to delegate, support or supervise staff providing nursing care for women going through abortions
The first Court ruling said their right of conscientious objection was not unqualified and their duties did not require them to provide treatment to terminate pregnancies directly.
However this was overturned by the Scottish Court of Appeal, who found their Trust to be in the wrong. Instead, it ruled that their right to conscientious objection meant they could refuse to delegate, supervise or support staff involved in abortions:
‘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.’
The Trust duly appealed this, sending the case to the UK Supreme Court, which has now upheld their appeal against the Scottish Court ruling.
In essence, the legal dispute centres on the extent of the 1967 Abortion Act conscientious objection clause, particularly the scope and meaning of the word ‘participate’.
Section 4 of the Abortion Act 1967 allows an individual to refuse to participate in any treatment under the Act to which he/she has a conscientious objection:
(1) Subject to sub-section (2) of this section, 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.
While it is clear that this covers those directly involved in the abortion itself, it has not been clear whether anything that occurs outside the operating theatre falls outside the ambit of s4(1), including referrals for abortion, particularly since Article 9 of the European Convention on Human Rights provides that: ‘Everyone has the right to freedom of thought, conscience and religion; this right includes… freedom …to manifest his religion or belief in worship, teaching, practice and observance.’ However the Supreme Court did not consider that this Article is relevant.
The Scottish Appeal Court judgement had been a significant victory for the midwives and others in their position. It allowed for the conscientious exemption clause to extend not only to the actual medical or surgical termination itself but also to the whole process, covering participation in all aspects of abortion ‘treatment’.
But it has now been decided that the clause does not cover those who are asked to delegate, supervise or support staff carrying out abortions because Lady Hale ruled that:
‘The conscience clause does not cover making bookings or aftercare for patients who have undergone a termination. Nor does it cover fetching the drug before it is administered. “Participating” is limited to direct participation in the treatment involved. It does not cover administrative and managerial tasks.’
This controversial ruling applies to more than ‘just’ midwives. It obviously creates real difficulties for anyone with a moral objection put in this position, many of whom would view delegation, supervision or support as ‘participation’.
Of particular concern is that the Supreme Court ruled (para 40) on another grey area, that any medical professional who refuses to provide an abortion must arrange for a referral to someone else who will do so. This seems to go far beyond the scope of the Abortion Act, and furthermore is not even an issue there was any need for the Court to decide in this case.
This new ruling conflicts with 2013 GMC guidance that doctors are not obliged to refer patients seeking abortion to other doctors who will do it but must ‘make sure that the patient has enough information to arrange to see another doctor who does not hold the same objection’. (12c).
Freedom of conscience is not a minor or peripheral issue. It goes to the heart of medical practice as a moral activity. The right of conscience helps to preserve the moral integrity of the individual clinician, preserves the distinctive characteristics and reputation of nursing and midwifery as a profession, acts as a safeguard against coercive State power, and provides protection from discrimination for those with minority ethical beliefs. There are plenty of notorious examples of the moral corruption of a medical profession where freedom of conscience has been ignored or forbidden.
Imagine if these midwives had been working in another country and been asked to ‘supervise’ activities that were legal there but that most people in Britain would regard as highly unethical? For example, euthanasia of people with dementia, amputation for stealing, female circumcision or the torture of prisoners. Most would agree people should not be forced to participate in such activities. Most Britons (I hope) would back their right to refuse.
And to ‘participate’ should not just involve direct action. Many would consider that a referral is participating in abortion. If I do not physically take part in a robbery, but knowingly provide the thieves with information or equipment to enable them to perform the crime, or provide the get away car or help conceal or dispose of the loot, I should be guilty under the law as if I had been on the premises myself.
It is only because abortion is regarded as mundane and routine in Britain that a case like this does not generate huge public outrage and concern. But that tells as much about the weakened conscience of the British public as it does about morality of abortion.