Freedom of Conscience and Abortion

The Parliamentary Assembly of the Council of Europe has recently been considering the issue of Conscientious Objection in relation to participation in Abortion. Originally the proposals before the Assembly regarded Conscientious Objection not as a fundamental right but as a problem indeed the original title of the proposals before the Assembly was "Women’s access to lawful medical care: the problem of unregulated use of conscientious objection"

but this was amended to read "The right to conscientious objection in lawful medical care" and Para 1 of the Resolution as eventually passed by the Assembly reads
"1. No person, hospital or institution shall be coerced, held liable or discriminated against in any manner because of a refusal to perform, accommodate, assist or submit to an abortion, the performance of a human miscarriage, or euthanasia or any act which could cause the death of a human foetus or embryo, for any reason."

The amendments to the original proposals were initiated by two Parliamentarians Senator Ronan Mullen of the Irish Oireachtas (Parliament) and Mr Luca Volonte of the Italian Parliament. I had the good fortune to meet Senator Ronan during my recent visit to Dublin and I was enormously impressed by him.

The Resolution does not of itself have any direct legal force since the Council of Europe is not the European Union and does not make law. However the Council does have the role of defending the European Convention on Human Rights and it administers the European Court of Human Rights. Because of this resolutions by the Council of Europe are considered by the Human Right Court when making decisions concerning the Convention As an example look at the Judgment in the case of Layla Sahin v Turkey paras 66, 68, 69, 136 and para 18 of the dissenting judgment by Judge Tulkens.

Similarly when making arguments in UK Courts it is possible to refer to Resolutions by the Council of Europe or indeed any other other International organisation where those resolutions are relevant to a question before the Court.

I would see this Resolution defending Conscientious Objection as being valuable in protecting Medical staff who may be pressurised to participate in or indirectly assist in Abortion. The resolution specifically refers to the fact that "No person, hospital or institution shall be coerced, held liable or discriminated against"
because of their refusal to "accommodate, assist" with abortion. The fact that the Resolution specifically refers to discrimination could be quite significant in terms of the Anti-Discrimination provisions in The Equality Act 2010

At present most Doctors and Nurses in Great Britain who object to Abortion rely for their protection on section 4 of the Abortion Act 1967 which says
"no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection"

The leading case concerning s4 is Janaway v Salford HA [1988], 3 All ER 1079 HL where a doctor's secretary (Janaway) refused to type a referral letter for an abortion and was unsuccessful when she claimed that she was protected by s4. The House of Lords, in interpreting the word "participate" decided to give the word its "ordinary and natural meaning" which meant that s4 only applied to those who were being required to take part in an Abortion (e.g. the gynaecologist, the anaesthetist, or the assisting nurses) and did not cover ancillary involvement such as signing an Abortion Certificate or referring a patient to another Doctor who would carry out an Abortion. The general effect of the Janaway case has been an assumption that Doctors in particular only have very limited legal rights to object to involvement in the Abortion process. However though Janaway is still good law it is no longer the last word on the subject of conscientious objection.

Sections 10 and 19 of the Equality Act combine to make it unlawful for an employer to
apply a provision, criterion or practice which puts, or would put, persons [ie with a religious or philosophical objection to abortion] at a particular disadvantage when compared with persons [who do not have any religious or philosophical objection to abortion]

The defence to an allegation of indirect discrimination is that the "provision, criterion or practice" is a " proportionate means of achieving a legitimate aim"

It is when Courts are applying the test of proportionality that Resolutions such as that by the Council of Europe come into play to protect Doctors, Nurses, Pharmacists or even Health Service Typists who do not want to assist in Abortion in any capacity. Similarly Religious Hospitals or Organisations which may find themselves being pressurised to agree to Abortion services as a condition for receiving NHS contracts could use the resolution to allege that they were being Discriminated against.

Certainly the resolution will not provide a magic bullet defence to any person or organisation who finds themselves being pressurised with regard to Abortion but it certainly provides a moral and potentially a legal support to those people who recognise that unborn children are human beings too. After all everyone who is reading this Blog was a foetus once.