By Dave Andrusko
When senior midwives Mary Doogan and Connie Wood won a pivotal right of conscience case on appeal in 2013 after having lost at trial, everyone knew the legal proceedings would not end there. This week Doogan and Wood—indeed pro-lifers throughout medicine—suffered a crushing blow at the hands of the United Kingdom’s Supreme Court.
The decision was not limited to midwives.The five-member court unanimously held that the conscience exemption in the 1967 Abortion Act applied only to medical personnel directly involved in abortions.
At the urging of the Royal College of Midwives and the British Pregnancy Advisory Service (the country’s leading abortion provider), the Supreme Court expanded the categories of medical personnel whose conscience rights would be diminished. The pro-life Society for the Protection of Unborn Children (SPUC) noted
“Furthermore, the court has used the opportunity of this case to decide that the conscience clause in the Abortion Act does not apply to General Practitioners and that hospital doctors asked to prescribe abortion drugs will not be covered by the conscience clause. We anticipate that this will lead to renewed efforts by health officials to force doctors who have a conscientious objection to abortion either to compromise their respect for human life or to leave the profession. SPUC will support and encourage doctors to resist any such bullying approach.”
This was the third court decision and, unfortunately, likely the last. In 2012 a Scottish judge ruled against Doogan and Wood. In 2013, the Court of Session ruled 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.”
That decision was appealed to the nation’s highest court by the midwives’ employers, NHS Greater Glasgow and Clyde. They “argued conscientious objection is a right only to refuse to take part in activities that directly bring about the termination of a pregnancy,” the Daily Record reported.
The dispute arose when Doogan’s and Wood’s employers reorganized abortion services in 2007. Mid-term and late-term abortions would be performed on the labor ward rather than on the gynecology ward and the midwives were told they had to oversee abortion procedures.
Central to Doogan’s and Wood’s defense was that previously they were not called on to delegate, supervise or support staff engaged in the care of patients undergoing abortions.
The Abortion Act of 1967 states that no one with a conscientious objection can be obliged to participate in abortion procedures. “However, the hospital management insisted that a conscientious objection clause in the 1967 Abortion Act applied only to active participation in a termination and did not cover the women’s duties to delegate, supervise and support staff,” The Scotsman reported.
However referring to the midwives’ right to object, the Court of Session concluded, “The right is given because it is recognised that the process of abortion is felt by many people to be morally repugnant. It is in keeping with the reason for the exemption that the wide interpretation which we favour should be given to it.”
Not so, according to the UK Supreme Court. According to the Daily Record
[Writing for the court] Lady Hale said the only question for the court was of “pure statutory construction” – the meaning of the words “to participate in any treatment authorised by this Act to which he has a conscientious objection.” She said it meant in her view taking part in a “hands-on capacity.”
In their statement Doogan and Wood highlighted how devastating the fallout will be and how little accommodation was necessary:
“We are both saddened and extremely disappointed with today’s verdict from the Supreme Court 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 recognised that the number of abortions on the labour 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 labour ward.
But the fallout goes even further—the insistence that pro-life medical personnel refer for abortions. As Paul Tully, general secretary for SPUC, explained
“The pro-abortion lobby has long argued that conscientious objectors should be required to refer women seeking legal abortion to other practitioners. Bodies such as the Department of Health have qualified this by saying that this only applies when the statutory grounds for a legal abortion apply, but the Supreme Court has said that any medical professional who refuses to provide an abortion should arrange for a referral to someone else who will do so. This seems to go far beyond the scope of the Abortion Act, and furthermore is not even an issue there was any need for the Court to decide in this case.
“The Court has nevertheless said that midwives and doctors with conscientious objections are obliged to refer abortion patients to colleagues who don’t object to abortion. This goes further than the General Medical Council, for instance, whose current guidance Personal Belief and Medical Practice says that doctors should refer patients to another doctor, but does not require them to check their colleague’s pro-abortion credentials.”
Anthony McCarthy, educational director for SPUC, put the decision’s impact in black and white:
“The abortion industry has been whittling away at the conscience clause since it was put in,” said McCarthy. “Now the Supreme Court is telling every ordinary general practitioner he must refer someone seeking an abortion to another doctor who is known to have no problem with abortions.”