Call the Midwife - I want an Abortion !

The Scottish Court of Session case of Doogan & Wood v Greater Glasgow Health Board [2012] CSOH 32 dealt with two issues regarding the right of Midwives to refuse to participate in Abortion, namely Article 9 (Freedom of Religion) of the European Convention on Human Rights and the "Conscientious Objection" clause in s4(1) of the Abortion Act 1967.

The facts are that Doogan and Wood are experienced senior Midwives who worked in a supervisory capacity in the Labour Ward of their Hospital. Due to changes in Hospital routines etc Abortions began to be performed in the Labour ward supervised by Midwives. (Personally I don't know what kind of sicko in the NHS decided that a Labour Ward is the right place to kill unborn babies and that Midwives are the right people to train to be baby killers but that wasn't an issue in the legal case) The change of policy put the two midwives in the situation that led to the case.

They objected to Abortion on Religious Grounds (they are Roman Catholics and the Catholic position on Abortion is pretty unambiguous) and sought to rely on the Conscientious Objection clause in s4(1) in order to be excused from supervising the "patients" who were in for Abortions. (It is worth noting here that the conscientious objection clause is not restricted to believers in religion, an Atheist who believes, as many do, that the unborn child is human is entitled to rely on s4(1) just as much as a religious person.)

The problem that the two Midwives had was that the Hospital did not accept that s4(1) covered their supervisory functions but insisted that it only applied to direct involvement in the physical act of Abortion. The Midwives referred to s4(1) which says that
"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"
and the legal case revolved around the question of what "participate in any treatment" actually meant.

The main case which had considered this point previously was Salford Health Authority v Janaway [1989] 1AC 537 where a typist had tried to rely on s4(1) when she refused to type a letter referring a patient for an Abortion. Not surprisingly perhaps the House of Lords in that case decided that a secretary typing a letter did not involve participation in treatment. In this case however it was midwives who claimed to be participating and there is no doubt that they were employed because of their skill and training as Midwives.

Despite this the Judge in what is a rather sparsely reasoned decision decided that what they were doing in supervising the Abortion process did not in law amount to participation in Abortion. She mentions and in large part relies on the wording of the Nurses Contract and the guidelines issued by the Nursing and Midwifery Council and the Royal College of Nurses which is somewhat peculiar in view of the clear wording of s4(1) that the right of conscientious objection overrides any "contract or .. any statutory or other legal requirement", that to my mind means that s4(1) should have been considered without any reference to the views of the NMC or the RCN or their guidance. If the Contract had to be considered perhaps more consideration should have been given to a clause mentioned in para 16 of the Judgment "ensuring that women's and babies' needs are assessed, care planned, implemented and evaluated", after all no baby needs an Abortion.

A lot of the legal argument in this case, as in the Janaway case, revolved around the criminal law of accessories or, in the Scottish legal parlance "art and part", but I wonder if more help might have been gained from looking at the Civil Law of negligence and professional liability. If a woman who was in the Labour Ward for an Abortion fell ill or died due to their Abortion "treatment" being incorrect or not properly managed when either of these senior midwives were on duty could they have been professionally disciplined by the NMC. If they could then surely they are "participating" in the treatment because they cannot be held to be professionally liable for an incorrect treatment that they have no involvement with. This does not seem to have been a point considered in this judgment but may perhaps be considered in what is, I suspect, an inevitable appeal.

The case also considered Article 9 but there is little point in dealing with those legal arguments since the Judge followed the previous cases under which the UK Courts have interpreted Article 9 so that it has become virtually meaningless as a form of legal protection. The view of the Courts is that if your job in any respects interferes with your religious belief then you have to get another job and you cannot rely on Article 9 to help you. Of course if you are a murderous terrorist or an illegal immigrant who has committed a crime for which you should be deported then the Human Rights Act will protect you to the end but if you are an ordinary person who wants to wear a crucifix or, in this case, refuse to take the life of an unborn child then the Human Rights Act will do nothing for you.

Oh and as a final point some people have suggested that because this case occurred in Scotland it would have no relevance to the legal position in England and Wales, but that unfortunately is not the case. The Abortion Act 1967 applies in England, Wales and Scotland (but not in Northern Ireland) and the Human Rights Act (and hence article 9) applies throughout the UK. Though Scotland is a separate legal jurisdiction to England and Wales in practice wherever Scottish Courts have adjudicated on such "cross border" legislation their decisions are accepted without question in England and Wales and Visa Versa. The Outer House of the Court of Session is equivalent in status to the High Court of England and Wales and therefore this case will in practice be treated south of the border on exactly the same basis as if it had been a decision of the High Court.