Britain’s Supreme Court has rejected the case of two Scottish midwives who refused to be involved with abortion procedures, following an appeal from National Health Service Greater Glasgow and Clyde against last year’s Court of Session ruling that the “right of conscientious objection extends not only to the actual medical or surgical termination but to the whole process of treatment given for that purpose.”
Concepta Wood and Mary Doogan were experienced midwives working as labor ward coordinators at Glasgow’s Southern General Hospital, which since 2010 has seen about 6,000 births each year. There have been just under 60 abortions in the hospital’s labor wards each year since 2010, following changes introduced in 2007 and 2010. The two midwives’ unwillingness to supervise and coordinate the performance of such abortions set in motion the series of court cases that led to Wednesday’s decision.
The Catholic Herald reports that Wood and Doogan have said they are “both saddened and extremely disappointed” by the Supreme Court decision, and “can only imagine the subsequent detrimental consequences that will result from today’s decision on staff of conscience throughout the UK.”
“Despite it having been recognized,” they continued, “that the number of abortions on the labor ward at our hospital is in fact a tiny percentage of the workload, which in turn could allow the accommodation of conscientious objection with minimal effort, this judgment, with its constraints and narrow interpretation, has resulted in the provision of a conscience clause which now in practice is meaningless for senior midwives on a labor ward.”
Paul Tully, general secretary of the Society for the Protection of Unborn Children, which has paid Wood and Doogan’s legal expenses, told Aleteia that, “Connie and Mary are deeply disappointed with the outcome, and they feel that it’s a result which fails to acknowledge the fundamental importance of the right of conscientious objection and the protection of that right which is afforded by the British Statute — the 1967 Abortion Act.”
Under the terms of section 4(1) of the Abortion Act, “no person shall be under any duty whether by contract or by any statutory or other legal requirement to participate in any treatment authorized by this Act to which he has a conscientious objection.” Wood and Doogan have consistently maintained that the coordination and support of abortions constitute participation in treatment, and last year the Court of Session agreed.
“With immediate relevance to Connie and Mary’s situation,” says Tully, the Supreme Court’s decision means “that they are not entitled to the protection of their employment status if they refuse to supervise abortion procedures being undertaken by other people on the labor ward where they work.”
Tully says that until recently the hospital had recognized that Wood and Doogan were entitled to opt out of any abortions that took place in their hospital’s labor ward. As senior midwives who have the role of labor ward coordinator, their job had entailed making bookings, designating other more junior midwives to look after specific women, and engaging during the care of women on the ward in supporting, advising, and standing in for colleagues for periods during the care of women in the ward.
“In abortion cases,” he explained, “that would mean having extensive hands on involvement with those patients as well as being involved extensively in ways that would morally compromise them. And what the ruling does is to say that Mary and Connie can only opt out of the actual hands-on involvement in the abortion itself.”
Peter D. Williams, executive officer of Right to Life, says that by interpreting the "participation" referred to in section 4 of the Abortion Act as simply being the surgical or medical procedure of abortion, the Supreme Court has chosen to violate the conscience rights of Catholic midwives.
“This ignores the whole moral concept of ‘material cooperation’, which involves someone cooperating in an action by participating in the circumstances that are essential to its being committed,” he told Aleteia, continuing, “so, a midwife overseeing and managing staff that are themselves directly involved in an abortion is still materially cooperating in abortion, and to remove protections from having to commit such actions violates the conscience of any informed person who morally objects to abortion.”
Tully told Aleteia that the judgment is not clear on what exactly is meant by “the abortion itself,” such that “it leaves a certain amount unclear in terms of what they would have to do, and it leaves it to an arrangement between the midwives themselves and their managers to precisely which tasks in a given case they would have the right to object to, and which ones they wouldn’t. “
The judgment is unambiguous, however, in establishing that Wood and Doogan will evidently not be able to continue in their jobs. “In practice,” Tully says, “because Connie and Mary would not undertake the hands-off managerial roles like making appointments for women to come into the ward to have late term abortions, they would not be able to work on the ward — that’s clear.”
Williams points out that “The consequences of this go further than the midwives themselves, as now anyone who is not directly committing an abortion can fall outside the protections of the Abortion Act. I really hope that the midwives appeal this decision in the European Courts, and succeed in re-securing the right to conscience and manifest belief that should be enshrined in law.”
Tully says that the midwives and SPUC are taking legal advice on what course of action might best be taken next, but says that a challenge in the European Court of Human rights is “probably unlikely because the ECHR protection of employment rights for conscientious objectors in other scenarios is fairly weak — not as strong as that in the Abortion Act, in fact — so that it’s unlikely that they would have anything to gain from an ECHR challenge.”
In relation to Wood and Doogan themselves, Tully says that there may be negotiation with the hospital. “They might be offered roles other than working in the labor ward,” he said, “for example as community midwives, where there isn’t an abortion element.”
“But there’s also the wider question of the impact of this decision on midwives more widely and on other healthcare staff — nurse and doctors — who are also affected by aspects of the judgment. For example, general practitioners or family doctors previously had been in general afforded a right of conscientious objection, are not, according to this judgment covered by the conscience clause in the abortion act.”
Neil Addison, national director of the Thomas More Legal Center, has described it as ironic that Lady Hale delivered the Supreme Court’s decision, given how in June she told the Law Society of Ireland that she was unconvinced that the law had “yet found a reasonable accommodation” for religious freedom and conscientious objection. She would not have been alone in such a view: in 2012, the parliamentary report Clearing the Ground had found that contrary to legislative intent, Britain’s courts have been establishing a hierarchy of rights in which religious freedom and conscience rights are less important than other rights, and the UK’s Equality and Human Rights Commission is currently undertaking a major consultation into this issue.
Addison expressed particular concern about the judgment addressing issues that were not before the court, describing these elements of the judgment as “frankly disgraceful,” with “Lady Hale and her fellow Judges stepping completely and unjustifiably outside their legitimate role and function as Judges and making judgments on issues which are not before them and on which the persons affected have not been allowed to make any representations.“
Caroline Farrow of Catholic Voices said that the case was yet another instance of the United Kingdom’s “demonstrably incoherent attitude towards the unborn child.” That midwives can be “charged with the terminating of the lives of the unborn as part of their job requirements," is, she told Aleteia, a sign that “the profession has not merely ‘evolved’ but has undergone a disturbing revolution.”
Paisley’s Bishop John Keenan told the Scottish Catholic Observer that Wood and Doogan had dedicated years of their lives to being there “for mums giving birth to their children,” and that the ease with which their managers could have accommodated their needs showed quite clearly that “this case was not about depriving women of abortion services. It was about forcing nurses who had trained to deliver babies to become involved in medically killing them."
“We should be in no doubt,” he said, “that this was a battle between competing proposals of the kind of country we want: a project propping up a culture of death by means of oppressing any legitimate opposition to it or a vision promoting respect for the life and freedom of all peoples.”
Nonetheless, he said, even if the battle had been lost, Wood and Doogan had emerged as heroes for those “who refuse to be silenced as a voice for the voiceless and who will stand up for human life and freedom, whatever it takes, against any reactionary forces peddling their worn out logic of meanness and fear.”
Greg Daly covers the U.K. and Ireland for Aleteia.
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