Catholic midwives lose abortion conscientious objection case
Two Roman Catholic midwives has lost their claim to be allowed to exercise their right of conscientious objection to abortion by refusing to supervise abortions performed on a labour ward.
In a judgment issued today, the UK Supreme Court upheld an appeal by Greater Glasgow Health Board against a decision of the Inner House of the Court of Session that section 4(1) of the Abortion Act 1967 allowed Mary Doogan and Connie Wood, in their role as labour ward co-ordinators, to refuse to book in patients, allocate staff in the ward, and supervise and support midwives where a termination of pregnancy was to be carried out.
Management at the Southern General Hospital, where the two were employed, took the view that delegation, supervision and support did not constitute "participating" in the treatment within section 4(1) and rejected a grievance lodged by the midwives, who sought judicial review of the decision. The Lord Ordinary ruled against them but an Extra Division allowed their appeal.
Giving today's judgment Lady Hale, Deputy President of the Supreme Court, with whom Lord Wilson, Lord Reed, Lord Hughes and Lord Hodge agreed, said it was common ground between the parties that "treatment" in the Act meant the process of treatment in hospital for the termination of pregnancy, and "participating" meant actually taking part in that process, rather than the extended meaning given to participation by the criminal law.
Questions of whether the midwives’ rights to respect for their religious beliefs, protected by article 9 of the European Convention on Human Rights, had been unlawfully restricted, or whether their employers had a duty to make reasonable adjustments to the requirements of their job to take account of their religious beliefs did not fall to be decided in this case, but were better suited to resolution in proceedings which the midwives had also brought in the employment tribunal. Lady Hale added that the dourt did not have the evidence from which the impact on a safe and accessible abortion service of a wide or narrow interpretation of section 4(1) could be assessed. The better course was for the court to decide what the section meant according to the ordinary principles of statutory construction.
She pointed out that the course of treatment to which conscientious objection was permitted was the whole
course of medical treatment bringing about the termination of the pregnancy, beginning with the administration of the drugs designed to induce labour and normally ending with delivery and disposal of the foetus, placenta and membrane, and any specific aftercare required. But the ordinary nursing and pastoral care of a patient who had just given birth was not unlawful before the 1967 Act, and was thus not made lawful by it, and a narrow meaning of the words "to participate in" was more likely to have been in the
contemplation of Parliament when the Act was passed, rather than the host of ancillary, administrative and managerial tasks associated with the acts being made lawful.
Lady Hale observed that a necessary corollary of the duty of care owed to patients by members of the health care profession was that any conscientious objector was under an obligation to refer the case to a
professional who did not share the objection. By comparison, the current guidance of the General Medical Council simply says that doctors should refer patients to another doctor, without requiring them to check that doctor's position on abortion.
She went through the midwives' list of tasks and discussed whether each fell within the conscience clause, or whether it would depend on the circumstances. The court invited further submissions on what order should replace that granted by the Inner House.
Speaking following the judgment, Ms Doogan and Ms Wood said they were "both saddened and extremely disappointed with today's verdict from the Supreme Court and can only imagine the subsequent detrimental consequences that will result from today's decision on staff of conscience throughout the UK".
They added: “Despite it having been recognised that the number of abortions on the labour ward at our hospital is in fact a tiny percentage of the workload, which in turn could allow the accommodation of conscientious objection with minimal effort, this judgment, with its constraints and narrow interpretation, has resulted in the provision of a conscience clause which now in practice is meaningless for senior midwives on a labour ward.”