Comment | Abortion and conscientious objection: what about human rights? – Elizabeth Prochaska
22 May 2013
Doogan and Wood v. NHS Greater Glasgow & Clyde Health Board [2013] CSIH 36 – read judgment here and Alasdair Henderson’s commentary here
It is easy to become complacent about women’s reproductive rights in mainland Britain. Compared to our Irish neighbours, women here are able to access their chosen contraceptive, abortion and maternity services with relative ease. When Savita Halappanavar died after she was refused an abortion in Galway, commentators lamented a system where a woman could be told by healthcare staff that she couldn’t have an abortion because Ireland is a Catholic country. We imagined that such events could not happen here. A recent judgment of the Scottish Inner House of the Court of Session (the Scottish Court of Appeal) shakes that belief. Of most concern is that the court failed to engage with the human rights implications of its decision.
Our abortion law is found in the Abortion Act 1967. Section 1 makes abortion lawful only when it has been authorised by two doctors who attest that continuing the pregnancy poses a risk to a woman’s physical or mental health, or where the child would ‘suffer from such physical or mental abnormalities as to be seriously handicapped’. In effect, all abortions, save those for fetal abnormality, are performed on the basis that there is a threat to the woman’s physical or mental integrity as a result of pregnancy. Section 4 excuses a person from ‘participating in any treatment’ under the Act if they express a conscientious objection to abortion. As the Abortion Rights campaign points out, the law gives doctors control over women’s informed choices about their pregnancy that can lead to damaging delays in accessing abortion services.
Into this context stepped the Inner House. Alasdair Henderson reported the decision in Doogan and Wood for this blog here. To recap, two labour ward coordinators – midwives in charge of the supervision and administration of the maternity ward – complained that they were forced to participate in abortion treatment contrary to their religious beliefs. The court found that the exception for conscientious objection to abortion in section 4 should be broadly interpreted. It covered much more than participation in the actual termination itself and applied to the ‘whole process of treatment’. It included performance of the midwives’ usual functions where they related to terminations, such as managing ward resources, supervising other midwives and providing post-operative care to women on the ward.
Remarkably, the Inner House reached this conclusion without any reference to section 3 of the Human Rights Act 1998, which requires courts to interpret legislation compatibly with rights under the European Convention on Human Rights (‘ECHR’). The court assumed, without any analysis or citation of case law, that a broad construction of section 4 was appropriate in order to enable the midwives to be “true to their beliefs’ (para 37). Such an expansive approach to conscientious objection in the workplace is arguably at odds with the recent decision of the European Court of Human Rights in Eweida and others v UK [2013] 48420/10 , which makes it clear that the state has a great deal of leeway to curb manifestations of religion under Article 9 ECHR, particularly where they impinge on others’ rights. As the Outer House found at first instance, a limited interpretation of section 4 would have been compatible with Article 9.
In failing to conduct any section 3 analysis, the Inner House took no account of women’s right to private life under Article 8 of the ECHR. While the European Court has held that there is not a specific right to abortion (A, B, C v Ireland [2010] ECHR 25579/05), the Abortion Act only sanctions abortion where the pregnancy poses a threat to the woman’s health or life. As the European Court has recognised repeatedly, women’s right to physical integrity, protected by Article 8, is engaged in the abortion context (A, B, C v Ireland [2010] ECHR 25579/05, Tysiac v Poland [2007] ECHR 5410/03). This principle ought to weigh heavily in any judicial interpretation of the provisions of the Abortion Act.
There are worrying practical consequences of permitting senior midwives to refuse to engage in any activity connected with terminations. Women admitted to a maternity ward may need quick access to an abortion that would be impeded by senior staff members’ refusal to become involved on conscientious grounds. While the Abortion Act does not enable a conscientious objection to be raised where the mother is in danger of grave permanent injury or death (section 4(2)), that is a difficult assessment to make and a woman’s condition can deteriorate rapidly. Savita Halappanavar’s death shows how a system which ostensibly permitted abortion to save the mother’s life failed to protect her from the conscientious objection of her caregivers. The practical consequences of the judgment may put women at risk.
A decision of the Scottish courts does not formally bind the healthcare authorities in England and Wales. However, the national guidance on conscientious objection and abortion issued by the regulatory bodies, the General Medical Council and Nursing and Midwifery Council, is applicable nationwide. It will be amended to take the judgment into account and the effect will therefore be far-reaching. The time limit for an appeal to the Supreme Court has not yet passed and it must be hoped that the issue receives further judicial scrutiny that takes account of the human rights implications. In the meantime, this decision raises the danger that a law making abortion contingent on the permission of professionals, rather than on the informed decision of the woman, will render women’s rights precarious.
Elizabeth Prochaska is a barrister and founder of Birthrights, www.birthrights.org.uk
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It is trite to observe that the abortion debate, together with assisted suicide, raises stronger feeling than any other clash between respective rights or, if you prefer, the right of someone not to undertake an otherwise unlawful employment duty because of their religious conscience. To some religious believers, abortion is murder plain and simple. There is no way they are going to accept being told that the general law is entitled to require them to be involved in any part of that procedure, be it the operation itself or any post-operative care procedure. It is like telling them to dryclean a murderer’s clothes in order to dispose of the evidence. Similarly, for some devout believers, asking them to preside over a same-sex marriage is like asking them to reclassify aeroplanes as submarines – non-sensical, in other words. (Neither reflects my personal view, incidentally, which is not relevant anyway.)
Hence when Elizabeth observes:
_”The Strasbourg abortion cases are relevant because they find that women’s right to physical/psychological integrity is at stake in decisions about abortion by healthcare providers. It is this integrity right – rather than a right to access abortion per se – that is threatened by taking an expansive approach to conscientious objection”_
The conscientious objector would simply respond that no such right exists, and there is nothing to balance against their right to follow their religious beliefs.
This is not to say that Elizabeth’s argument is wrong, nor that the concerns highlighted are not valid and require addressing, but let us be clear that a number of otherwise blameless good citizens will feel very persecuted indeed if they are forced to go against their beliefs on something as fundamental as life and death.
My thought on this sort of case is if human rights support for broad “conscientious objections” in the work place could lead to some sort of brouhaha regarding the cab-rank rule at some point down the track …
Can I ask if any of he deceased’s team considered the fact that CEDAW – The COnvention for the Elimination of Discrimination Against Women expressly gives women full rights over her body and reproduction and the Convention is superior to all other traditional, national laws?
Women need to take up CEDAW as it was signed into effect quite a while back.
Thanks for your comment. The s.3 obligation to consider the compatibility of legislation with the ECHR is an obligation that falls on the court. While the parties didn’t pursue human rights issues before the Inner House, I’d have expected the court to address the points on their own initiative, particularly because, as you say, the Outer House decision was based in part on Article 9. While it is possible for domestic legislation to provide greater protection to human rights than that afforded by the European Convention, when interpreting legislation that is ambiguous (as s.4 is) I’d have thought that the court’s interpretative obligation is to keep pace with Strasbourg (Ullah v Special Adjudicator [2004] UKHL 26).
The Strasbourg abortion cases are relevant because they find that women’s right to physical/psychological integrity is at stake in decisions about abortion by healthcare providers. It is this integrity right – rather than a right to access abortion per se – that is threatened by taking an expansive approach to conscientious objection.
Many thanks for the post, Elizabeth. However, I’m not sure I agree with your comments on the apparent lack of section 3 analysis. The case history does not bear this out. Moreover, the cases you refer to are not on point and would not have assisted the Inner House in arriving at its decision. A, B, C v Ireland related to the failure to provide abortion in Ireland. Tysiac v Poland turned on retrospective criminal procedures regarding the refusal to provide an abortion that failed to protect the claimant’s physical integrity. In contrast, abortion is readily available in Scotland within the parameters defined by the Abortion Act 1967. Had those parameters been the subject of judicial scrutiny, then a direct analysis of Article 8 would certainly have been appropriate. However, the issue in Doogan and Wood v. NHS Greater Glasgow & Clyde Health Board was whether the Nurses’ duties (delegating to, supporting or supervising labour ward staff) were sufficiently proximate to the process of abortion to trigger the right to conscientious objection under s 4(1) of the Act. Therefore, the relevant Convention right in Doogan and Wood was Article 9, namely the right of freedom of thought, conscience and religion. At first instance, having taken account of Article 9 and related case law, the Lord Ordinary nonetheless construed s 4(1) narrowly and held they weren’t participating in abortion. Lady Smith specifically considered s 3 HRA and Ghaidan v Gordon Mendoza [2004] 2 AC 557. On appeal, the Article 9 argument was dropped, which is perhaps why there is so little mention of it in the Inner House’s judgement. Nonetheless, whilst the Court did not explicitly refer to Article 9, their Lordships noted that Parliament added s 4(1) to protect people with strong moral or religious objections to abortion. Both the Inner and Outer House considered the possible impact on patients, so arguably Article 8 did feature in their thinking, albeit obliquely.
In asserting that “the law gives doctors control over women’s informed choices about their pregnancy”,
you seem to be proposing that section one of the Abortion Act 1967, which reads,
“a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith [etc]”
ought to be amended to read
“a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated when that is the informed choice of the mother whose child is aborted”.
Have I understood this correctly to be your position? With reference to the Convention rights that need to be balanced, of the humans concerned, namely the doctors and other medical professionals, the informedly choosing mother, and (last but not least, other than in size and maturity) the human to be aborted, do you have an argument to commend that position of yours?
“that can lead to damaging delays in accessing abortion services”
Whom, amongst three classes of the humans involved, do you think that these potential “delays” might damage, and how, any more than those humans are being damaged already?
“Savita Halappanavar’s death shows how a system which ostensibly permitted abortion to save the mother’s life failed to protect her from the conscientious objection of her caregivers.”
Where does the official report “show” anything of the kind?
A similar analysis is needed before the Assisted Suicide/Dying Bill is passed…