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:
The conscientious objection…is given because it is recognised that the process of abortion is felt by many people to be morally repugnant… 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.
Provided that, as is the case, the nurses and midwives were willing to become involved in an emergency when the patient’s life was at risk, then they were entitled to be excused from the entire range of duties connected with terminations.
Perhaps the fact that this case involves interpretation of a right specifically enshrined in statute makes this situation a little different to the broader religious discrimination cases. Nonetheless the approaches taken do seem to differ, and it will be interesting to see whether this has any bearing on future, as yet unspecified, complaints when an employee’s duties clash with their moral, ethical, religious or philosophical beliefs.