The Problem of Conscience
Both the Doogan case and the Janaway case before it illustrate a long-standing problem in abortion ethics and regulation. When a state allows for broadly permissive abortion laws, what provisions ought to be made for medical practitioners who conscientiously object to participating in abortion treatment? Most people believe that some exemptions for conscience ought to be provided for. There is a general interest in not compelling individuals to do things which will sear their conscience. Moreover, it might be thought that the particular nature of the wrong of abortion, as perceived by the conscientious objector, creates a particularly powerful reason to excuse her from participation in it. It would be extremely onerous indeed to compel an individual to assist in an act which, by her lights, entails the unjustified killing of a rights-holding human being.
But ought there to be any limitations on the right to conscientious objection, and where ought those boundaries to be drawn? We might all agree that there is a strong case for allowing objectors to avoid performing the abortion procedures themselves. But what about less direct forms of participation? Should the doctor’s secretary who wishes to avoid typing a letter connected with an abortion be able to avail herself of a conscience exemption? Should the midwives in Doogan have been able to excuse themselves from any involvement whatsoever in abortion treatment, including booking terminations and allocating beds? We might well ask whether an objecting nurse sent to fetch abortifacient medicines should be exempt from that task. What of an objecting hospital caterer who does not wish to service abortion patients? It is obvious that concern for keeping a clean conscience might provoke objections to evermore far removed contributions to abortion treatment.
Even those who are strongly supportive of abortion rights might nevertheless feel some measure of sympathy for the midwives in Doogan, in light of the predicament in which they found themselves. It is certainly understandable that someone who considers abortion akin to murder would feel conscientiously bound to avoid many forms of complicity in it which do not amount to direct participation. It may be cold comfort to such an objector to remind her that she did not perform the terminating act herself if she carried out tasks which were a necessary part of the process. Is it adequate protection of such a person’s conscience if she is compelled to allocate beds for abortion treatment, or delegate staff to perform them, or provide those staff with advice?
A similar point might be made in relation to the controversial duty to refer. The section 4 exemption in the Abortion Act 1967 does not impose a duty on objecting doctors who invoke conscience protections to refer patients seeking abortion to alternative, non-objecting doctors. However, National Health Service contracts require anyone exercising their right to refusal under that section to make ‘prompt referral to another provider of primary medical services who does not have such conscientious objections’. According to the British Medical Association and General Medical Council guidelines, objectors should even, in some instances, arrange the appointment for the patient with a non-objecting doctor. While there is plenty of support for the duty of referral, a conscientious objector could reasonably claim that even this act amounts to a level of cooperation in abortion that is more than her conscience can comfortably bear. Imagine, for instance, that a doctor who morally objects to a common practice of terminating unwanted infants were told that she need not help carry out the terminations herself, but must display a sign directing parents seeking the termination service to a willing agent. If we are to believe opponents of abortion that their objection is rooted in the equation of abortion with infanticide, then this is surely what the duty to refer amounts to on their outlook.
Considering all of this, the Supreme Court’s decision to exclude the midwives’ supervisory tasks from the coverage of section 4 may appear out of line with a serious commitment to protecting conscience. If protecting the moral integrity of objectors was the interest at issue, surely the midwives’ wish to be exempt from indirect participation was the central consideration for interpreting the conscience clause. This, at any rate, had been the view of the Scottish Court of Appeal when reaching the contrary decision that the tasks of ‘supervision, delegation and support’ did in fact amount to participation in abortion treatment under section 4.10 Lady Dorrian (delivering the judgment) placed great emphasis on the grounding rationale for the exemption, which, as she pointed out, was there to protect those morally opposed to abortion from having to perform actions which sully their conscience. This rationale, it was thought, clearly endorsed a wide interpretation of section 4. As Lady Dorrian contended in her judgment:
The right is given because it is recognised that the process of abortion is felt by many people to be morally repugnant ... it is a matter on which many people have strong moral and religious convictions, and the right of conscientious objection is given out of respect for those convictions and not for any other reason. 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.n
There is certainly something appealing about the Scottish Court’s approach. If the very point of section 4 is to spare healthcare workers the moral anxiety of being a part of what was, as they saw it, a morally heinous activity, then surely it was for the workers themselves, for whose benefit the clause was inserted, to specify what level of involvement put them ill at ease and, indeed, what in their eyes counted as participation. Put differently, if someone feels that writing a letter of referral or delegating staff for abortion treatment compromises her moral integrity, well, that is exactly what conscience protections are there to prevent.
But it is easy to see how far this reasoning could be taken. If conscientious objectors are at liberty to determine for themselves what sorts of activities invoke the exemption, it seems there will be no limits whatsoever on what kinds of activities or tasks could count as ‘participation’ in abortion under the 1967 Act. Following the Scottish Court’s principle of interpretation, the ordinary tasks of the hospital cleaners and caterers, and even the delivery van drivers, could constitute such tasks if an objector only attests that they compromise her good conscience. This leads us to ask whether any limits on the right to conscientious objection ought to be imposed.
Any discussion about the right of conscientious objection to abortion and its limits must begin with the assumption that legal abortion is a morally justified
io Doogan and Wood (n 2).
practice. Writing about rights of conscientious objection in general, Joseph Raz suggests that the main problem with justifying conscience exemptions is that it involves showing that a person ‘is entitled not to do what would otherwise be his moral duty to do simply because he believes that it is wrong for him to do so’.!2 Using the standard example of a pacifist’s objection to military service, Raz explains that ‘[the] only way to base such a right on moral principles is to concede that because somebody wrongly believes that military service is prohibited for him he should be allowed to opt out’.  Likewise, with abortion, we might say that the problem of conscience must assume that a permissive legal stance is correct. If the law is simply wrong to hold abortion to be permissible in many circumstances, the correct response to this would not be to provide for conscience exemptions, but to change the law. The question of conscientious objection therefore only becomes live when we accept, even if only for the sake of argument, that the duties from which objectors wish to be exempt are in fact morally justified. As Raz writes:
[T]he argument must proceed on the assumption that the law is morally valid. The conscientious objector, it will be assumed, proposes to act wrongly. Should he have the right to do the wrong thing because he sincerely holds mistaken or wrong moral views?i4
Raz goes on to explain that the right not to have one’s conscience coerced can only ever be a prima facie right—one which ‘can be overridden to protect other values and ideals’.i5 This, he says, ‘is inevitable, given that it is a right to do what is morally wrong which is given to people who will use it for that very purpose. To give it absolute importance is to prefer the morally wrong to the morally right whenever the agent has misconceived moral ideas, however wicked’.^ This alone may alert us to the possible necessity of placing some limits on rights of conscientious objection to abortion practice if and when the exercise of that right threatens the values and ideals to which the law is committed.
As we see with Raz’s main example, the issue of conscientious objection is most often discussed in relation to military conscription and the pacifist’s right to opt out. Yet conscientious objection to participation in abortion differs from the case of military conscription in some key ways. For one, abortion provision is different in that, insofar as it is a duty, it is not a duty which falls on anyone in particular to provide unless and until they place themselves in a certain position. Most opponents of abortion will never need to deploy the right to conscientious objection so as to avoid involvement in abortion treatment, since they will not be so positioned in the first place that they are otherwise duty-bound to participate in it. No one is plucked at random and required by law to help deliver abortions. It is only once someone has positioned herself so that participation is required of her as part of her duties of employment that the right to conscientiously object is of any relevance. And being so positioned is largely a matter of choice—the choice to be a medical practitioner, or an obstetrician-gynaecologist, or a labour ward co-ordinator.
These features of the abortion context yield salient differences from the case of military conscription. Ordinarily, avoiding any duty to participate in abortion treatment is extremely easy. The greatest protection for conscience here lies in the fact that there is no law requiring anyone to perform abortions. Military conscription is different. Here, pacifist objectors require protection from a law which directly compels them to serve in the military, the imposition of the legal duty being wholly outwith their control. It is clear that these differences affect exactly how the conscience right is deployed in each case and against whom or what. With military conscription, the right to conscientiously object is asserted against the state, which commands compliance. In contrast, section 4 of the Abortion Act is intended not to protect an objector from the consequences of disobeying the state, but from the consequences of refusing to partake in duties of employment associated with abortion. In effect, it shields the objector from the ordinary implications of refusing to perform tasks that arise in her chosen line of work, consequences which may range from legal action for breach of contractual duty, to disciplinary action, to dismissal. Section 4 protects objectors by stepping in to bar employers from penalizing them for refusing to participate in abortion treatment, and is thus only operative once an objector so has placed herself that abortion treatment could be part of her job.
Conscientious refusal to participate in abortion treatment is not, therefore, wholly analogous with a pacifist’s objection to military service. Nor is the nature of the conscience protection the same. The main question I wish to address in what follows here is how conscience exemptions for abortion practice ought to be framed within the context of permissive abortion regulation and what sorts of factors ought to inform the boundaries of conscience protection. I suggest that there must be some limits on the right to conscientious objection to abortion, and that those limits ought to be determined by a few key considerations pertinent to conscience exemptions in general. One is the imperative that conscientious refusals do not undermine the purpose of abortion regulation and the values and ideals furthered by it. Another is the degree to which the contested activity implicates the objector in giving abortion treatment. A third and final pair of considerations are the cost to individual objectors of shouldering the burden of their objections themselves, and, symmetrically, the cost to others of shouldering the burdens of (presumed) morally erroneous conscientious objections. Relevant to this final question will be the avoidability, for the objector, of the disputed activity, and what avoiding it entails in the way of burdens.
-  See National Health Service (General Medical Services Contracts) Regulations 2004 (S.I. 2004/291), Sched 2(3)(e) and clause 9.3.1(e) of the NHS England Standard Medical Services Contract (citedin: Sara Fovargue and Mary Neal, ‘ “In Good Conscience”: Conscience-based Exemptions and ProperMedical Treatment’ (2015) 23 Medical Law Review 1, 5).
-  See Fovargue and Neal (n 8) 5.
-  Joseph Raz, The Authority of Law (Oxford University Press 1979) 277.
-  14 ibid 278. 15 ibid 281. 16 ibid.