UK Supreme Court Blog

EDITORS: Dan Tench, Emma Cross, Zainab Hodgson, Francesca Knight, James Warshaw and Natalie Haefner (CMS)
Hugh Tomlinson KC, Matthew Ryder KC, Dévante Gravesande-Smith and Rebecca Khan (Matrix)

Introduction

The Abortion Act 1967 sets out the circumstances in which termination of pregnancy is lawful. The object and effect of the 1967 Act was to carve out from the common law, and from the Offences against the Person Act, a zone in which the termination of pregnancy would be lawful under a defined set of circumstances. These circumstances, and the preconditions for a lawful abortion, are set out in s 1. The termination procedure was brought within the NHS and certain authorised clinics in the private and voluntary sectors.

The drafters of the legislation recognised that a proportion of individuals employed by the health services would have religious and/or moral objections to the termination of pregnancy, even within the particular circumstances defined in the Act. That acknowledgement is embodied in s 4 of the Act, which gives individuals employed by the health services the right to object on grounds of conscience to the treatment authorised by s1 of the Act. In Greater Glasgow Health Board v Doogan & Anor [2014] UKSC 68, the Supreme Court considered the ambit of the right under s 4.

The facts and background to the case are outlined in the Case Preview, in which the judgments below are discussed. These are not repeated in any detail here. In summary, Miss Doogan and Mrs Wood were two experienced midwives employed as Labour Ward Co-ordinators at the Southern General Hospital in Glasgow. Both were practising Roman Catholics who had religious and moral objections to having any involvement at all in the process of termination of pregnancy. Of this they each informed their employer, the Greater Glasgow Health Board, when they began to work in the Labour Ward. A small proportion of the terminations performed at Southern General Hospital were allocated to the Labour Ward. Both Miss Doogan and Mrs Wood were able to “work around” their conscientious objections by asking others to perform tasks to which would otherwise have been allocated to them, if such tasks were in any way related to the termination of pregnancy.

Miss Doogan and Mrs Wood became concerned that a reorganisation in maternity services in Glasgow would increase the number of abortions to be carried out in the Labour Ward. They asked their employers for assurances that their objections would nevertheless continue to be respected and accommodated. A dispute ensued, the ultimate issue being their objection to “delegating, supervising and/or supporting staff to participate in and provide care to patients throughout the termination process”. The hospital considered that this did not involve providing one-to-one care to patients undergoing a termination procedure, and did not fall within the ambit of s 4. As discussed in the case preview, the petitioners’ challenge to the hospital’s decision to this effect failed before the Lord Ordinary, Lady Smith, but succeeded before an Extra Division of the Inner House. The latter held that a wide interpretation of the s 4 right to object was consistent with the reasoning behind its inclusion in the Act, and hence that it extended “to any involvement in the process of treatment, the object of which is to terminate a pregnancy” [emphasis added].

This decision was in turn reversed by the Supreme Court on 17 December 2014. Lady Hale, with the concurrence of Lord Wilson, Lord Reed, Lord Hughes and Lord Hodge, gave a decision based squarely on the language of the statute, of which the Court adopted a precise and tailored reading.

The statutory language

The long title of the Act is “An Act to amend and clarify the law relating to termination of pregnancy by registered medical practitioners.” S 1, headed “Medical termination of pregnancy”, sets out the circumstances in which termination of pregnancy will be lawful. S1(3) provides that “any treatment for the termination of pregnancy” must be carried out in an NHS hospital or other approved place. The relevant provisions of s 4, which deals with “conscientious objection to participation in treatment” are:

“(1)      Subject to subsection (2) of this section, 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;

Provided that in any legal proceedings the burden of proof of conscientious objection shall rest on the person claiming to rely on it.

(2)        Nothing in subsection (1) of this section shall affect any duty to participate in the treatment which is necessary to save the life or to prevent permanent grave injury to the physical or mental health of a pregnant woman.”

Lady Hale’s characterisation of the matter before the Court placed the issue firmly on the ground of statutory construction.

“It will immediately be apparent that the question in this case, and the only question, is the meaning of the words “to participate in any treatment authorised by this Act to which he has a conscientious objection”.

When it considered the very same phrase in R v Salford Health Authority; Ex p Janaway [1989] AC 537, the House of Lords decided that “treatment” meant “the process of treatment in hospital for the termination of pregnancy” and “participate” meant “actually taking part in that process”. It did not have the extended meaning given to participation in the criminal law. In that case, Mrs Janaway, a secretary and receptionist to a G.P., unsuccessfully objected to typing a letter referring a patient to a consultant for a possible termination. The question of what the words meant in the context of hospital treatment did not arise. That, and that alone, according to the Supreme Court, was the question to be decided in the present case (paragraphs 11 and 33).

The meaning of “treatment”

Although s 1 of the Act does not use the word “treatment”, it is clear that the treatment to which s 4 refers is the termination of pregnancy under s 1. (See paragraph 28, referring to Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800 (HL)). In the Royal College of Nursing case, the House of Lords decided that the Act authorised the whole course of medical treatment bringing about the ending of a pregnancy. From that starting point, Lady Hale accepted that the course of treatment to which the petitioners may object is the whole course of medical treatment bringing about the termination of the pregnancy. This would begin with the administration of drugs designed to induce labour, and normally ends with the delivery of the foetus, placenta and membrane. It would include the medical and nursing care directly connected with each stage of that process, including labour and giving birth, and ultimately disposing of the foetus, placenta and membrane, as well as direct aftercare resulting from the delivery process. It would not include the ordinary nursing an pastoral care following delivery, which care was not unlawful before the 1967 Act and hence did not fall within the ambit of s 1 (paragraph 34).

As Lady Hale pointed out, this interpretation of s 1 was supported by the terms of s 4(2), which made it clear that the right to object embodied in s 4(1) did not override the duty to participate in treatment required to save the life of a pregnant woman, or to prevent grave and permanent injury to her physical or mental health.

Consistently with Janaway [1989] AC 537 at 572,   the Supreme Court held that the s 4(1) conscience clause does not cover doctors forming the opinions required by s 1 and signing the necessary certificates to that effect. Such opinions, and the necessary certificates, are not part of the treatment process, although they are a necessary precondition to it. The Court noted, however, that in practice the contractual arrangements between the NHS and G.P.s and hospitals doctors do in practice allow them to avoid involvement in this necessary pre-condition to the termination of pregnancy. (This is manifestly sensible. Were the practice otherwise, a challenge based directly on the Equality Act 2010 and the guarantee of freedom of thought, conscience and religion under the ECHR, art 9, would be likely to eventuate.)

The meaning of “to participate in”

The words “to participate in” could in principle be broadly or narrowly construed, but the Court held at paragraph 39 that the narrow meaning accorded more closely with the intention behind the legislation, and that participate meant “taking part in a ‘hands-on’ capacity”:

“The focus of s 4 is on the acts made lawful by s 1. It is unlikely that, in enacting the conscience clause, Parliament had in mind the host of ancillary administrative and managerial tasks that might be associated with those acts…. “

In the Court’s view, the managerial and supervisory tasks required of a Labour Ward Co-ordinator were of such an administrative nature, and did not amount to taking part directly in the treatment bringing about the termination of pregnancy. Lady Hale pointed out that it is a corollary of a medical professional’s duty of care to a patient that when a medical professional declines to give lawful care to a patient on grounds of conscience, she or he must refer the patient to another professional who does not share the objection.

The rejected “distractions”

The Court declined to be diverted from its focus on the wording of the statute by a discussion of the petitioner’s rights under the ECHR, art 9 (freedom of thought, conscience and religion). With reference to Eweida v United Kingdom (2013) 57 EHRR 213, Lady Hale accepted that refusing for religious reasons to perform some aspects of a job was likely to be held to be a manifestation of religious belief. This would raise the question as to whether the restriction of this right was a proportionate means of pursuing a legitimate aim in accordance with art 9(2). The answer would be context specific, and would not necessarily point to a wider or narrower reading of the s 4. The better course, the Court considered, was “for this court to decide what the section means according to the ordinary principles of statutory construction. This will then set a limit to what an employer may lawfully require of his employees.”   A state employer would also need to respect the Convention rights of employees, as well as the Equality Act 2010, which laws might require reasonable adjustments to accommodate the religious beliefs of employees. Such issues were better suited to resolution in an employment tribunal rather than in judicial review proceedings (paragraphs 23-24).

By the same token, the Court refused to be distracted by a discussion of the broader consequences of adopting a wider or narrower reading of s 4, although it had accepted submissions on the issue from the interveners (the Royal College of Midwives and the British Pregnancy Advisory Service) and from the petitioners. With reference to the Royal College of Nursing case (at 827D), the Court accepted the policy of the Abortion Act was “to broaden the grounds upon which an abortion might lawfully be obtained and to ensure that abortion was carried out with all proper skill and in hygienic conditions.” Lady Hale accepted further that a further object of the Act was “to provide such a service within the National Health Service, as well as in approved clinics in the private or voluntary sectors”. As Lady Hale put it: “The conscience clause was the quid pro quo for a law designed to enable the health care profession to offer a lawful, safe and accessible service to women who would previously have had to go elsewhere.” The Court was not equipped, however, to gauge the effect on that service of a broader or narrower construction of the conscience clause…”, and declined to be drawn into speculation. The “only safe course”, said Lady Hale, “is to make the best sense we can of what the conscience clause actually says” [paragraphs 25-27].

The decision of the Supreme Court in Doogan is indeed designed to steer a safe course. But the danger it surely seeks to avoid is not simply that of pre-judging questions on which it has insufficient evidence. The unspoken risk is far graver. The risk is that legal questions about access to abortion, and the rights of medical professionals to object to participation on grounds of conscience, will be politicised; and that the politics of the debate will infiltrate judicial discussion of the ambit of the 1967 Act. The potential dangers of such a course are amply illustrated by the merest glance across to the United States. The Doogan judgment quietly keeps the law of this jurisdiction in calmer waters.