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Matters of Conscience

The Case of the Catholic Midwives

Mary Doogan and Concepta Wood were two experienced midwives employed as ‘labour ward co-ordinators’ at the Southern General Hospital in Glasgow in 2010. Both women were also practising Roman Catholics firmly holding the view that all life is sacred and that the termination of pregnancy is therefore seriously immoral. They also believed that any involvement in the process of termination would make them accomplices to what was, in their view, a grave moral crime. As ‘labour ward co-ordinators’, Doogan’s and Wood’s job description encompassed the management and leadership of the labour ward, which included responsibilities of delegating patient care to individual nurses and providing overarching supervision and support. Eager to ensure that they would not ever find themselves having to participate in abortion treatment on the ward, both midwives registered their conscientious objection to abortion at the beginning of their employment.

Foreseeing that the passage of the 1967 Abortion Act would make a morally controversial procedure commonplace in medical settings, the British Parliament enacting the legislation inserted a conscientious objection clause under section 4, which provided that no person shall fall under any legal duty, contractual or otherwise, to ‘participate in any treatment’ authorized by the Act to which he harbours a conscientious objection.1 Pursuant to section 4(2), there is an exception to the protection for conscience where an abortion is ‘necessary to save the life or to prevent grave permanent injury to the physical or mental health of a pregnant woman’. The clear purpose of the section 4 exemption is to allow healthcare professionals who morally object to abortion practice to nevertheless serve in contexts in which abortion treatment may be given, without compromising their moral convictions. The Glasgow case concerned the precise scope of that exemption which, quite evidently, rested on the interpretation of the term ‘participate in any treatment’.

After some restructuring of services at the hospital, Doogan and Wood became concerned that more terminations were likely to be performed on the labour ward on which they worked. Their roles as labour ward co-ordinators meant that although they were unlikely to be called upon to provide one to one treatment for abortion patients, their host of general managerial responsibilities over the ward were such

i Abortion Act 1967, s 4(1).

Arguments about Abortion: Personhood, Morality, and Law. First Edition. Kate Greasley. © K. Greasley 2017. Published 2017 by Oxford University Press.

that could potentially entail delegating, supervising, and supporting staff giving front-line abortion treatment. Among other things, it was possible they would be required, in the ordinary course of their duties, to book in terminations and allocate beds for that purpose; to oversee handover of abortion patients to fresh staff at the beginning of a new shift, and to provide guidance and support to the midwives involved in abortion procedures.

Believing that the performance of even these managerial tasks conflicted with their convictions about abortion, Doogan and Wood sought assurance from the health authority that they would be exempted from such supervisory duties in relation to abortion treatment. When their employer refused that assurance, they instigated judicial review proceedings, where the issue became the scope of section 4 of the Abortion Act and whether ‘supervising, delegating and supporting’ staff giving abortion treatment fell within the definition of ‘participate in any treatment’ under that section. The midwives argued that the term was to be given a wide reading, which included all of the supportive tasks associated with their roles as labour ward co-ordinators, where those tasks pertained to abortion treatment. The health authority counter-argued that section 4 ought to be more narrowly construed, and that the supervisory and supportive tasks the midwives were required to perform did not amount to ‘participation in treatment’ for abortion.

The case eventually went before the Scottish Court ofAppeal. The key legal question being what kinds of actions amounted to participation in abortion treatment for the purposes of the conscience-based exemption. Did they include only the kinds of activities which directly bring about the termination of pregnancy, such as the administration of pills, or the performance of a surgical abortion? Or did they also extend to the satellite tasks of supervision, delegation, and support, of booking in abortions and allocating beds, and being on standby for more junior staff who needed to seek advice in the process of carrying out terminations? The Scottish Court of Appeal sided with the midwives.2 Favouring the wider interpretation of ‘participate in treatment’, it held that the right of conscientious objection in section 4 extends to the ‘whole process of treatment’ for the purpose of effecting a termination. That whole process encompassed everything that formed part of the ‘team effort’ involved in bringing about an abortion, including the supervision, delegation, and staff support for which Doogan and Wood were responsible.3

The Health Authority appealed to the British Supreme Court, which gave a different answer. The scope of section 4 of the 1967 Act had been considered once before by the Supreme Court (then the House of Lords) in R v Salford Health Authority Ex p Janawayd In that case, the question concerned whether a doctor’s secretary who objected to typing a referral letter for an abortion would, by doing so, be participating in abortion treatment under section 4. The Court in Janaway decided that the conscientious objection exemption in section 4 applied only to the process of treatment for termination carried out in hospital or clinic, and to

  • 2 Doogan and Wood v Greater Glasgow Health Board [2013] CSIH 36. 3 ibid [12].
  • 4 Janaway v Salford Area Health Authority [1989] AC 537.

treatment in which the conscientious objector is required to actually partake. The Doogan case effectively asked the Court to refine its interpretation of the scope of section 4 even further. Once in the hospital setting, which specific kinds of acts qualified as participating in abortion treatment? Did section 4 apply to any act connected with abortion treatment or the conditions required to administer it, or only certain kinds of acts?

In the case of Doogan and Wood, the Supreme Court again opted for the narrower interpretation of section 4 placed before it.[1] Delivering the unanimous judgment, Lady Hale determined that to ‘participate’ in abortion treatment meant ‘taking part in a hands on capacity’.[2] On this reading, the section 4 exemption might apply to particular supervisory tasks that required a ward manager to become personally involved in giving abortion care, for instance covering break relief for a midwife caring for an abortion patient by providing the care herself, or assisting in a medical intervention which is part of the course of treatment (like the delivery of the fetus with forceps). However, the general managerial duties of ‘supervision, delegation and support’ that did not involve direct assistance in abortion treatment were out- with the scope of section 4. These managerial tasks the Court regarded as closer to the roles of hospital caterers and cleaners insofar as they facilitated the actual carrying out of abortion treatment.7 As Lady Hale reasoned, employees whose only job was to provide hospital catering and cleaning services were also ‘participating’ in abortion treatment insofar as they helped to facilitate the conditions in which abortions are carried out. However, this peripheral kind of involvement clearly would not amount to ‘participation’ for the purposes of section 4. In the Court’s view, many of the tasks from which the midwives claimed exemption were analogous to this. Consequently, it was held that the midwives could not claim the right of conscientious objection in respect of most of the disputed tasks. Since only ‘hands on’ involvement in abortion treatment would suffice to invoke section 4, the midwives could not rely on the conscientious objection provision to excuse themselves from those duties.

  • [1] Greater Glasgow Health Board v Doogan and Another [2014] UKSC 68.
  • [2] ibid [38]. 7 ibid.
 
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