Supreme Court ruling on conscientious objection and abortion
Yesterday, the Supreme Court made an important ruling on the issue of the scope of conscientious objection for healthcare professionals. The case (Greater Glasgow Health Board v Doogan and Wood) was taken by two Labour Ward co-ordinators in the Southern General Hospital in Glasgow who challenged whether their employer could require them to delegate, supervise and support staff who were involved in caring for women undergoing abortions. They invoked the conscientious objection clause contained within the 1967 Abortion Act, which before this case had always limited the right to conscientious objection to ‘hands on’ participation in the actual act of carrying out an abortion.
The two midwives initially pursued the case using their employer’s internal processes, then took it to an Employment Tribunal and the Scottish Court of Session (the equivalent of the High Court) losing their case at every stage. The women then appealed to the Inner Court of Session (equivalent to the Court of Appeal) in April 2013 where it was agreed that a very wide interpretation could be taken of the meaning of the word ‘treatment’ as described in the 1967 Abortion Act.
This meant that the midwives would no longer be required to take phone calls booking women into the Labour Ward for abortions, would not have to provide a handover at shift changes, would not have to allocate staff to care for women undergoing abortions, would not have to provide guidance, support or advice to midwives caring for women having an abortion, would not have to accompany the consultant obstetrician on ward rounds, respond to requests for assistance or provide relief at breaks for midwives caring for these women.
As Lady Hale, the Deputy President of the Supreme Court, explained:
“Parliament will not have had in mind the hospital managers who decide to offer an abortion service, the administrators who decide how best that service can be organised within the hospital, the caterers who provide the patients with food and the cleaners who provide them with a safe and hygienic environment. Yet, all may be said in some way to be facilitating the carrying out of the treatment involved. The managerial and supervisory tasks carried out by the labour ward co-ordinators are closer to these roles than they are to the role of providing the treatment which brings about the termination of the pregnancy. ‘Participate’ in my view means taking part in a ‘hands-on’ capacity.”
This ruling was appealed by the Health Board to the Supreme Court and the appeal was backed by both the Royal College of Midwives (RCM) and the British Pregnancy Advisory Service (BPAS).
The RCM is pleased that today’s ruling will provide extensive definition to complex clinical and other situations, in regard to whether conscientious objection applies or not. Midwives and other clinicians will benefit from this ruling’s clarity and women will be able to continue to exercise their choice over their reproductive rights.
It is interesting to note that neither woman was supported or represented throughout the case by a trade union. They are not members of the RCM, nor indeed as far as we are aware of any other trade union. Their legal costs have been met by SPUC (the Society for the Protection of the Unborn Child).
In another interesting development in Northern Ireland, Bernie Smith, the director of Precious Life (an anti-choice organisation) was today sentenced to 100 hours community service, served with a restraining order excluding her from approaching within 20 yards of the Marie Stopes clinic in Belfast, issued with an order restraining her from pestering or harassing the Clinic Director, Dawn Purvis or any other woman entering or leaving the clinic and ordered to pay £2,000 compensation to Ms Purvis. This is the first case in the UK where a sanction has been imposed on anyone protesting outside a healthcare facility (whether a statutory or any other provider) where abortions may be carried out. The case was a criminal case taken by the Public Prosecution Service and highlights the need for protection to be afforded both to those working in abortion clinics and those attempting to access abortion services.
A petition has been launched on Change.org appealing to Theresa May, the Home Secretary, to introduce a ‘buffer zone’ around abortion clinics elsewhere in the UK and it will be interesting to see what impact the Northern Ireland ruling will have on this debate.
It is timely that these two rulings have been issued just as the Northern Ireland Department of Justice is consulting as to whether abortion should be permitted in Northern Ireland in cases of lethal foetal anomaly or when a woman or girl has become pregnant as a result of rape or incest. The Abortion Act does not apply in Northern Ireland and both Amnesty International and the Northern Ireland Human Rights Commission are challenging the UK’s failure to implement the CEDAW recommendations with regard to women’s access to safe, legal abortion in Northern Ireland.
These two cases demonstrate that there is no room for complacency and that access to safe, legal abortion should be seen as a fundamental healthcare right for women everywhere. Protection needs to be provided therefore for women accessing abortion services and those providing the service and a balance must be maintained between the right of women to access abortion and the right to conscientious objection for those working in this complicated area.