Brought to you by Andrew Tickell
Mary Teresa Doogan & Concepta Wood [2012] CSOH 32 – Read judgment
“For the want of a nail, the shoe was lost, for the want of a shoe the horse was lost, for the want of a horse, the rider was lost, for the want of a rider, the message was lost, for the want of the message, the battle was lost, for the want of the battle, the kingdom was lost, and all for the want of a horse shoe nail”.
A proverbial lesson in causation, and one pressed into service by Lady Smith in the Court of Session in Scotland last week, in a judgment rejecting the judicial review petition of two Catholic midwives employed at a major Glasgow hospital.
Seeking review of Greater Glasgow and Clyde Health Board’s rejection of their grievances, the pair contended that the conscientious objection provisions of the Abortion Act 1967 – which provides 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” – was not limited to ‘direct’ participation in abortions, but entitled them to refuse to delegate to, supervise or support staff on their labour ward who were directly involved in medical terminations. Horse shoe nail.
Buttressing this contention, the midwives also argued that the court should have regard to the Human Rights Act’s interpretative provisions, specifically section 3 which requires courts “so far as it is possible to do so, primary legislation must be read and given effect to in a way which is compatible with Convention Rights”. The conscientious objection clauses in the Abortion Act should, they said, be read in the light of Article 9 of the European Convention’s protection of “freedom of thought, conscience and religion” and right “to manifest” their “religion or belief in worship, teaching, practice and observance”. Lady Smith’s reasoning essentially turned on the statutory construction of the Abortion Act. Just how broadly or narrowly should the concept of “participation in “treatment” resulting in medical terminations be understood?
The facts and circumstances
From 2005, Doogan and Wood were employed as “Labour ward coordinators” at the Southern General hospital, senior midwives responsible for “providing clinical leadership and operation management for delivery of the midwifery service within labour ward and obstetric theatre”. Day to day, this entailed a management and leadership role of the ward – supporting more junior staff, effective deployment of resources and so on – while the direct work of patient care was undertaken by midwives who they “line managed”.
Neither Doogan or Wood took an active hand in the medical procedure by which pregnancies are terminated. Medical terminations had, for many years, taken place their labour ward. Before 2007 abortions only took place there where the foetus was older than eighteen weeks, otherwise occurring gynaecological ward. From 2007 onwards, all terminations began to took place in the labour ward. From 2010 onwards, due to factors which needn’t detain us, the number of abortions taking place in the petitioners’ ward increased.
Lady Smith summarised their religious objections:
[8] The petitioners are both Roman Catholics and object, on religious groups, to participating in abortions. They are opposed to abortion. They believe that every foetus has a right to life. They believe that a disabled foetus has the right to live. They consider it abhorrent to be instructed to assist in or facilitate any action that will lead to a termination of a woman’s pregnancy.
Was it to “participate in treatment” to delegate, supervise or support staff on the labour ward who were directly involved in abortions?
The respondents argued not and Lady Smith agreed. Developing their own ad absurdam resort to the logic of horse shoe nail, counsel for the Health Board argued that the broad interpretation of “participating” in abortions advanced by the petitioners would lead to a ludicrous regress of responsibility. For example, in order effectively to function, a modern labour ward requires cleaners, deliverers of supplies quotidian and medical, porters and so on – some of whom would doubtless share the petitioners’ beliefs about the immorality of abortion. By the midwives’ logic, said the Health Board, ward cleaners would be within their rights under the Abortion Act to refuse to mop any labour ward where abortions took, as they would be, in a very broad sense, “facilitating” abortion.
Preferring a narrower construction, Lady Smith held that:
[79] It does not seem to me appropriate, in all the circumstances, to adopt a “horse shoe nail” approach to interpretation of the word “participation”. Its ordinary meaning connotes “taking part in”. It would not cover those who, though casually connected, do not take part in the objectionable activity (administering the treatment which terminates the pregnancy).
Accordingly, she held that the delegation, supervision and support of staff engaged in abortions was not “participating in treatment” authorised by the Abortion Act, activating a right of conscientious objection.
Article 9: Freedom of Religion
And what of Article 9? Lady Smith dispensed with the argument in a single paragraph:
[80] Moving to the question of whether or not Article 9 of the Convention requires a broader meaning to be adopted, I am not satisfied that it does. Article 9(1) does not require that people should be allowed to manifest their religion in any manner of their choosing, as the authorities to which I have referred demonstrate. What constitutes interference with the manifestation of religious belief depends on all the circumstances of the case, including the extent to which the individual could reasonably expect to be at liberty to manifest those beliefs in practice. Here, the petitioners are being protected from having any direct involvement with the procedure to which they object. Nothing they have to do as part of their duties terminates a woman’s pregnancy. They are sufficiently removed from direct involvement as, it seems to me, to afford appropriate respect for and accommodation of their beliefs. Further, they knowingly accepted that these duties were to be part of their job. They can be taken to have known that their professional body, the RCN, takes the view that the right of conscientious objection is limited and extends only to active participation in the termination (see 7/2 of process). Whilst the implication into their contracts of employment of the section 4(1) right of conscientious objection means that the position is not as clear cut as in Kalac or Ahmad, I do not conclude that the existence of their section 4(1) rights is, in all the circumstances, a special feature of such weight as to show that their Article 9 rights are being interfered with. I say so for three reasons. The first is that their right of conscientious objection is not unqualified – they could not, accordingly, have thought that in accepting the job description which they accepted, their statutory rights would prevent them from having to provide treatment to terminate pregnancy – sometimes by having direct involvement with the procedure – in all circumstances. The second is that they did in fact agree to take up the roles of Labour Ward Co-ordinators, the job content of which they now take objection to. The third is that, in any event, the nature of their duties does not in fact require them to provide treatment to terminate pregnancies directly. It follows, accordingly, that I am not persuaded that section 3 of the Human Rights Act 1998 requires me to afford to the words of section 4(1) anything other than their ordinary meaning.
This guest post is by Andrew Tickell, a doctoral Researcher at the Centre for Socio-Legal Studies, University of Oxford. You can find him on Twitter as @peatworrier and on his blog here.
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