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bhLast term, and early this term, the Scottish cases were of largely local interest. However the Scottish appeal in the case of Doogan v Greater Glasgow Health Board, which is being heard today, raises the controversial issue of the scope of the Abortion Act 1967, s 4.

S 4 allows those with a conscientious objection to abortion to decline to “participate in any treatment authorised” by the 1967 Act. It is invoked by nurses, midwives, doctors, pharmacists and others. The objection is to be respected unless the treatment “is necessary to save the life or to prevent grave permanent injury to the physical or mental health of a pregnant woman”.

The appeal will be heard by Lady Hale, Lord Wilson, Lord Reed, Lord Hughes and Lord Hodge.

Background

The petitioners, Mary Teresa Doogan and Concepta Wood, held promoted posts as midwives with Greater Glasgow Health Board. They supervised labour wards. A change of arrangements meant that an increasing number of terminations of pregnancies were being carried out in their wards. They felt that they had a conscientious objection to abortion: they found that they could not, in good conscience and in accordance with their Roman Catholic faith, delegate, supervise and support staff in the treatment of patients undergoing termination of pregnancy.

The petitioners complained to their employer using its grievance procedure. In response to this, the Health Board insisted that the management responsibilities did not fall within the scope of s 4 because they were not being asked to “participate in any treatment authorised” under the 1967 Act. They applied to the Court of Session for judicial review.

The Outer House and Inner House judges disagreed on the scope of the objection

In the Outer House the case was heard by Lady Smith (Doogan v Greater Glasgow Health Board [2012] CSOH 32, 2012 SLT 1041). Lady Smith said the issue was one of statutory interpretation: how far back in the chain of causation of the abortion could a person be said to “participate in any treatment authorised under . . .  [the 1967] Act”? Lady Smith interpreted the statute narrowly, and concluded that it did not include the performance of the midwives’ functions.

An Extra Division of the Inner House (Lord MacKay of Drumadoon, Lady Dorrian and Lord McEwan) reversed the decision of Lady Smith (Doogan v Greater Glasgow and Clyde Health Board [2013] CSIH 36, 2013 SC 496, 2013 SLT 517). In a single Opinion, the Division said that the exception for conscientious objection to abortion in s 4 should be broadly interpreted and that it covered much more than participation in the actual termination itself. The court found that it applied to the “whole process of treatment” including the 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.

The Health Board appealed to the Supreme Court.

The competing arguments that might be made to the Supreme Court can be seen by comparing Lady Smith’s reasons for giving a narrow scope to the provision with those of the Division favouring a wider scope. A summary of these arguments is set out below.

The scope of the 1967 Act and the pre-existing criminal law

As a starting point in interpreting the 1967 Act Lady Smith looked to see how it had changed the law. She held that before 1967 criminal liability would not have attached to everyone who had, in a broad sense, facilitated an abortion. For instance, a person who provided the name of the abortionist would not have committed a crime. The chain of criminal responsibility ended fairly close to the act of inducing the miscarriage. The 1967 Act made lawful what had been unlawful before. The activities made lawful by the 1967 Act were those in relation to which the s 4 objection could be invoked. The s 4 objection could not be invoked in relation to activities that would have been lawful before the 1967 Act was brought into force. The midwives were not being asked to commit what, before 1967, would have been a crime so there was no scope for invoking he objection.

This argument was rejected by the Inner House. The 1967 Act was exhaustive and the s 4 objection was not to be defined by the scope of the pre-existing criminal law.

The House of Lords decision in R v Salford HA Ex p Janaway

Lady Smith found support for her interpretation in the case of R v Salford HA Ex p Janaway [1989] 1 AC 537. In that case the House of Lords decided that the right of conscientious objection was not open to a general practitioner’s secretary who objected to typing a letter referring a patient who was seeking to terminate her pregnancy to a consultant. Lady Smith considered that the decision indicated that a narrow rather than broad interpretation was appropriate.

The Division’s reading of Janaway was different. It said that the petitioners’ duties were far removed from those of a secretary typing a letter of referral. It also found support in Janaway for a broad interpretation of the words “participate” and “treatment”.

What was the ordinary meaning of the words?

Lady Smith decided that if the word “treatment” was given its ordinary meaning it did not extend to the petitioners’ coordination and management roles. The treatment under the 1967 Act began with the authorisation by the medical practitioner, who did not have to thereafter authorise ordinary nursing or administrative activities because they would not have been unlawful under the pre-1967 law.

Lady Smith decided that the steps which amounted to treatment, and could be objected to, were fetching the drug Mifepristone, giving it to the woman when she attended as an outpatient, administering the Misprostol pessaries, checking the woman’s physical progress thereafter on a one to one basis, administering further pessaries if required, and receiving and disposing of the products of termination. The petitioners were not participating in the treatment.

In favour of a narrow scope, Lady Smith also accepted an argument that, if the petitioners were right, the right to conscientious objection would extend from the ward cleaners to the obstetricians. There was, she said, no indication that Parliament intended a wide approach that would cover all those who could in any way be said to have facilitated the giving of the treatment.

Disagreeing with Lady Smith on the definitions of “participation” and “treatment” the Division returned to Janaway. It placed emphasis on the speech of Lord Keith who approved the judgments of Nolan J and Balcombe LJ in the Court’s below. In his judgment Balcombe LJ had stated that “participation” was to be given its natural meaning rather than a meaning by reference to the criminal law. Nolan J, for his part, had said: “The treatment is not simply abortion. It includes pre and post-operative care. It covers the case where, for one reason or another, no abortion in fact takes place.” Accordingly, said the Division, the right of conscientious objection extended not only to the actual medical or surgical termination but to the whole process of treatment the object of which was to terminate a pregnancy.

Human Rights and Article 9 of ECHR

In the Outer House the petitioners submitted that the Human Rights Act 1998, s 3 meant that s 4 of the Act had, if possible, to be read compatibly with Article 9 of the European Convention on Human Rights—the right to freedom of thought, conscience and religion—and therefore the broader reading had to be preferred. Lady Smith rejected the argument. The Strasbourg court gave Article 9 a restricted scope. It had rejected cases in where workers said their rights had been infringed because their work was not made compatible with their religious practices.

The petitioners didn’t make the Human Rights Act argument in the Inner House but they did refer to the judgment of Sachs J—the eminent South African judge and human rights champion— in Christian Education South Africa v Minister of Education (2001) 9 BHRC 53. It was a case that concerned the balance to be struck between the application of religious principles and the general law. Sachs J said: “The state should, wherever reasonably possible, seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law.” The Division found this dictum helpful. It held that the petitioners had been provided with the protection by s 4 so that they could work in their chosen vocations as midwives and the better interpretation of the statute was one that did not constantly place them in a position where they had to make difficult decisions in stressful situations.

Accordingly, the statute should be interpreted to avoid a situation where the midwives had to decide, day by day and case by case, what tasks would be directly involved an abortion—which they could elect not to perform—and those which indirectly brought about an abortion—which they had to carry out on pain of disciplinary action. The management of the conscientious objection was a matter for the employer, not the employee.

The case is now in the hands of the Supreme Court.

Interveners: The Royal College of Midwives and the British Pregnancy Advisory Service

The Supreme Court has allowed interventions by the Royal College of Midwives and the British Pregnancy Advisory Service.

The Division criticised the RCM guidance to midwives. The guidance, unsurprisingly, favoured the narrow approach, proceeding on the bien pensant basis that a midwife had a duty to be non-judgmental and that to be selective was unacceptable. It will be interesting to see what stances the interveners take and, in particular, how they will deal with the submission that the operation of the system that permits abortions is more efficient and humane if those, like the petitioners, with conscientious objections, can stand well-back from it whilst keeping their jobs.

An excellent article that provides useful background to the appeal is the commentary by Mary Neal at (2014) 22 Med Law Rev 409.