…or why rights are never clear cut.
This is one of two pieces written on UKSC Judgements handed down on 17th December 2014. The other, on Moohan (and Another) v The Lord Advocate  UKSC 67, can be found here.
The Supreme Court of the United Kingdom (UKSC) handed down two judgements this morning that had been heard in the last few months. One was the tale of two Catholic Midwives, who were seeking to ensure their workplace duties did not interfere with their religious beliefs, as they felt they were entitled to under the Abortion Act 1967.
Greater Glasgow Health Board v Doogan and Another  UKSC 68
The second judgement was that in what has become known as the “Catholic Midwives” case. It centred on two Labour Ward co-ordinators from Glasgow’s Southern General whose duties had recently been changed. Previously, most (c.98%) of the abortions carried out in the Southern General took place in the Gynaecology Ward. However, due to restructuring, the Labour Ward was likely to seem more, and the co-ordinators would likely have more responsibility for them. The two woman, both practising Catholics, felt that this would require them to carry out actions contrary to their beliefs, and so wanted to invoke their right to refuse under the ‘conscientious objection’ (CO) provision of the Abortion Act 1967.
Whether or not they were able to was highly contentious. The Health Board (GGHB) said that since they weren’t going to be playing an active part in the procedures, they couldn’t opt-out. The Outer House disagreed with GGHB. The Inner house of the Court of Session disagreed with the Outer House. And now it was up to the United Kingdom Supreme Court (UKSC) to decide what was what. Lady Hale (who else) delivered the court’s unanimous judgement, which held that the Midwives could not simply opt-out of what was deemed an ordinary part of their job.
The Issue at hand
It’s important to understand what this case was not. This case was not about Catholics (or any other religious people) being forced to act against their religious beliefs – the right to conscientious objection in s.4 of the 1967 Act is not contingent on religious belief. This case was not about the Midwives being actively involved the the actual termination – both sides agreed that the midwives would not have to do anything directly involved in the abortion process. This case was not about whether the midwives’ ECHR rights (article 9: Freedom of Thought, Conscience and Religion) were affected by the new regime – the answer would be too specific to mean anything of importance.
What this case was about was what it meant to “participate” in an abortion. Section 4 specifically states “no person shall be under any duty…to participate in any treatment authorised by this Act”, so it’s therefore important to understand 1) What the Act authorises; and 2) what it means to ‘participate’ in that treatment.
No-one can disagree with the statement that the Abortion Act 1967 legalised abortion in Britain. It was illegal to ‘kill’ a foetus before then it wasn’t. But what was the ‘treatment’ the Act authorised? Opinions offered in the case differed:
- The Royal College of Midwives thought it included only “the treatment which actually causes the
termination, that is, the administration of the drugs which induce premature labour.” For them is didn’t include, “the care of the woman during labour, or the delivery of the foetus”.
- GGHB understood the treatment as beginning with the administration of the drugs that terminate the pregnancy and ends with the expulsion of the lovingly titled “products of conception”
- The Midwives took a very expansive view that the treatment included ” any involvement with patients in connection with the termination of pregnancy to which they personally have a conscientious objection”. This could include arranging appointments, fetching drugs or making notes.
It was noted that the UKSC’s predecessor, the House of Lords, had previously held that the treatment included “the whole
course of medical treatment bringing about the ending of the pregnancy”. Lady Hale interpreted this is meaning, broadly, what GGHB felt it did, but also included
“…the medical and nursing care which is connected with the process of undergoing labour and giving birth, – the monitoring of the progress of labour, the administration of pain relief, the giving of advice and support to the patient who is going through it all, the delivery of the foetus, which may require the assistance of forceps or an episiotomy, or in some cases an emergency Caesarian section, and the disposal of the foetus, placenta and membrane.”
This is a rather broad view, but seems to fit well with the terms of the 1967 Act. Abortion is about inducing the unnatural end of pregnancy, so everything contained about seems to fit well. Lady Hale did accept that this definition did not, therefore, include a Doctor signing a certificate to allow the abortion treatment to begin which must, by definition, happen BEFORE the process begins. This may appear as legally inconsistent, but as was noted, often practical arrangements are put in place to avoid unpleasant conflicts.
Participation in the Treatment
So what does it mean to ‘participate’ in the treatment? This was the crux of the problem. It was agreed that there are is a narrow meaning (i.e you are involved in the actual process of carrying out the abortion) or a broad one (not carrying out the treatment, but arranging the staff to carry it out or keeping a general eye on patients). It was held that the narrow vision was most likely intended by Parliament (which is using the purposive approach, as I think I mentioned before).
And on a practical level it works. The women involved are, in the end, midwives. They have responsibilities and duties even if the Abortion Act didn’t exist. They have to organise staff for medical procedures, maintain a good and orderly ward and supervise the condition of patients under their care. Abortion is a (albeit controversial) medical procedure, which requires organisation and the people who undergo it are still patients. There are not parts of the treatment under the Abortion Act, this is just the day to day running of the ward. To be able to opt-out of these aspects would be to opt out of a fundamental part of the job, and that , surely, was never the intention. As Lady Hale herself put it “‘Taking part’ means taking part in a hands-on capacity”.
In the final paragraph of the judgement, after all the action had taken place Lady Hale said one more thing of importance:
But when conscientious objection is the reason [a health care worker refuses to take part in an abortion], another health care professional should be found who does not share the objection.
This is not a requirement of the CO section of the 1967 Act. It’s not in the statute, but is a logical implication of it. Abortion is legal, so access to it should not be restricted. The fact that someone does not want to take part in the procedure should not mean that the procedure should not be carried out. There exists, Lady Hale has opined, an obligation on a conscientious objector to refer the person seeking a termination to a medical professional who will carry it out. Legally, as has been established, this cannot be opted-out of under a CO (since it happens before the procedure begins), but morally, how will this objectors be able to square this with their beliefs, religiously-founded or otherwise? As long as the CO opt-out exists, this will be a question.
This was always going to be a contentious decision. The Scottish Catholic church has already ‘voiced its concerns’. But, today’s decision is certainly the right on in terms of the law. The position as it now stands can be summed up as: Midwives from Glasgow can refuse to take part in any treatment directly related to the termination of a pregnancy; but cannot refuse to do anything that would be their duty if the Abortion Act were not in place (eg. arrange co-ordination and support of patient care). The argument will now come down to what constitutes a “hands-on capacity”.
On a final note, it would be interesting to see the religious make-up of those who enter into the midwifery profession given today’s judgement. Lady Hale noted that the evidence was not available to judge what effect the decision would have on midwife numbers whichever way it went. I suppose, over the coming years, we will see.