Catholic midwives lose abortion case

The right to respect for religious and philosophical beliefs often turns on the question of where to draw the line, whether it concerns the wearing of religious symbols or what, in fact, constitutes a philosophical belief capable of protection.

Although not directly triggered by the relevant provisions of the Equality Act 2010, in the judgment of the Supreme Court in Greater Glasgow Health Board v Doogan and another, delivered on 17 December, the question of where to draw the line was again to the fore.

Mary Doogan and Concepta Wood are experienced midwives who worked as labour ward co-ordinators. They are both practising Roman Catholics who notified their employer of their conscientious objection to taking part in the termination of pregnancies. Pursuant to section 4 of the Abortion Act 1967 (entitled “Conscientious objection to participation in treatment”):
“(1) Subject to subsection (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:

Provided that in any legal proceedings the burden of proof of conscientious objection shall rest on the person claiming to rely on it.

(2) Nothing in subsection (1) of this section shall affect any duty to participate in treatment which is necessary to save the life or to prevent grave permanent injury to the physical or mental health of a pregnant woman.

(3) In any proceedings before a court in Scotland, a statement on oath by any person to the effect that he has a conscientious objection to participating in any treatment authorised by this Act shall be sufficient evidence for the purpose of discharging the burden of proof imposed upon him by subsection (1) of this section.”
A small proportion of terminations take place in the labour ward rather than the gynaecology ward with a midwife being assigned to give these patients one to one care. The job of the labour ward co-ordinator includes booking in patients, allocating staff in the ward and supervising and supporting midwives. Both respondents believe that human life is sacred from the moment of conception and that termination of pregnancy is a grave offence against human life. They also believed that any involvement in the process of termination rendered them liable as accomplices and therefore culpable for that grave offence. The hospital took the view that delegation, supervision and support did not constitute “participating” in the treatment and therefore rejected their grievances.

Both brought judicial review proceedings which were unsuccessful. They appealed to the Inner House (the Scottish equivalent of the Court of Appeal and succeeded. Lady Dorrian, delivering the lead judgment, stated:
The right is given because it is recognised 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 favour 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.” (emphasis supplied by the Supreme Court)
The Supreme Court unanimously disagreed. Lady Hale, delivering the lead judgment, focused on what was meant by “participating in any treatment authorised by this Act to which he has a conscientious objection”.

conscientious objectors

Termination of pregnancy remains one of the most controversial issues we have in our society. When Parliament legalised it by the Abortion Act 1967, it recognised that, despite all the strict procedural requirements and safeguards it sought to build in, nonetheless this would simply be a step too far for some people in the light of their ethical, moral or religious views.
For this reason, the Abortion Act 1967 contained a “conscientious objection” provision at section 4, whereby nurses and midwifes cannot be required to participate in the termination of a pregnancy.
Fast forward 40 years, and these sorts of concerns are addressed by the Equality Act 2010, which, along with the Regulations that preceded it, offer protection against discrimination on, among other things, grounds of religion of philosophical belief. Yet there has been a swathe of recent cases drawing a distinct line between what is discrimination, and what is simply requiring people to do the job they are employed to do (think about Lillian Ladele, the Registrar who refused to conduct same-sex civil partnership ceremonies, or Mr MacFarlane, refusing to give Relate advice to same-sex couples).
In the light of increasing numbers of terminations, and perhaps spurred on by the mind-set of the Courts, Glasgow Health Board attempted to draw a fine distinction between requiring nurses and midwives to participate directly in the termination of pregnancy (which it would not do), and requiring them to perform duties of delegation, administration and support for those involved in such duties (which it would). The midwives objected that their right of conscientious objection was being eroded, because the performance of any of these duties in connection with a patient admitted to hospital for a termination of pregnancy would give rise to their participation in treatment.
The Outer House of the Scottish Court of Session agreed with the Health Board. Lady Smith – doubtless influenced in a style of interpretation from her extensive sitting in the Employment Appeal Tribunal – considered that the right under the Abortion Act was a limited one, “the word ‘treatment’ being used ‘to denote those activities which directly bring about the termination of the pregnancy'”. Anything else the nurses could legitimately be required to do.
In Doogan & Anor v NHS Greater Glasgow & Clyde Health Board, the Inner House disagreed