Comment | Abortion and conscientious objection: what about human rights? – Elizabeth Prochaska
22 May 2013
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  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  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  ECHR 25579/05, Tysiac v Poland  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.
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