1) What is the law on conscientious objection?
The right of medical staff to refuse participation in abortion because they have a conscientious objection to the procedure is enshrined within the 1967 Abortion Act:
4. (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.
4. (2) Nothing in subsection (1) of this section shall affect any duty to participate in treatment which is necessary to save the life or to prevent grave permanent injury to the physical or mental health of a pregnant woman.
4. (3) In any proceedings before a court in Scotland, a statement on oath by any person to the effect that he has a conscientious objection to participating in any treatment authorised by this Act shall be sufficient evidence for the purpose of discharging the burden of proof imposed upon him by subsection (1) of this section.
2) What are the limits of conscientious objection?
The scope of conscientious objection is very clearly limited to medical staff participating in the abortion procedure. It contains within it a right to opt out of providing abortion care on an individual level, with an obligation to ensure that the woman is still able to access that care.
Professional guidance, such as the General Medical Council's (GMC) guidance on 'Personal beliefs and medical practice', clearly respects an individual's objection to active participation in abortion, while also trying to ensure that women can access treatment. Thus the GMC's guidance is clear that, when a practitioner objects to performing a procedure, he/she must refer the patient to a doctor who can meet the patient's needs.
The limits of conscientious objection were clarified by the UK's Supreme Court in December 2014. This case upheld an appeal against a Scottish court ruling which would have enabled healthcare staff to refuse to carry out any duties related to abortion care, however far removed from the procedure itself.
The case centred on two midwives from Glasgow, who were at no point asked to participate in an abortion or provide any care for the woman undergoing a procedure, but who believed their right to conscientious objection was breached by being asked to answer telephone calls to book women in for care, and delegate to or supervise staff providing that care to women.
The midwives, Mary Doogan and Concepta Wood, were supported in their legal case by the Society for the Protection of Unborn Children (SPUC). Both Doogan and Wood hold extreme beliefs about abortion, with one stating that answering the phone to book a patient into the ward was comparable with being a 'prison guard in a concentration camp who was opening gates to admit prisoners'.
Scotland's Inner House of the Court of Session ruled in 2013 that they should indeed have legal protection from such tasks. Greater Glasgow health board appealed the ruling, which was held at the Supreme Court in London in December 2014. The Royal College of Midwives and bpas intervened in the appeal, arguing that the original ruling allowed for a widely expanded interpretation of conscientious objection that could have seriously jeopardised women's care in hospitals around the UK.
The Supreme Court upheld Greater Glasgow health board's appeal on the grounds that delegating, supporting and supervising staff participating in abortion is not covered by the conscientious objection clause in the 1967 Abortion Act. Explaining their decision, the Supreme Court judges said Parliament in 1967 was likely to have envisaged that right to conscientious objection as being restricted to 'actually taking part, that is actually performing that tasks involved in the course of treatment.' Lady Hale, Deputy President of the court, said:
'Parliament will not have had in mind the hospital managers who decide to offer an abortion service, the administrators who decide how best that service can be organised within the hospital, the caterers who provide the patients with food and the cleaners who provide them with a safe and hygienic environment. Yet all may be said in some way to be facilitating the carrying out of the treatment involved. The managerial and supervisory tasks carried out by the labour ward co-ordinators are closer to these roles than they are to the role of providing the treatment which brings about the termination of the pregnancy. “Participate” in my view means taking part in a "hands-on" capacity.'
3) What is BPAS' position on conscientious objection?
BPAS supports the right to refuse to work in abortion care, not least because women deserve better than being treated by those who object to their choice. But the law as it stands already provides healthcare workers with these protections. Extending this protection to tasks not directly related to the abortion would be to the detriment of women needing to end a pregnancy and the healthcare staff committed to providing that care. There are enough barriers in the way of women who need an abortion without further obstacles being thrown in their way.
While abortion is a complex moral issue for some, and retains a specific provision in law to allow healthcare professionals to remove themselves from participating in the abortion itself, it is also an essential part of women's healthcare that 1 in 3 British women will need in her lifetime. The vast majority of the British public support women's access to abortion and a YouGov poll for Westminster Faith Debates in 2013 showed fewer than one in 10 people wanted to see abortion banned - including those who identify with a religion.
In the Doogan and Wood case, the aim was an attempt to widen the definition of conscientious objection to include any interaction at all with a patient undergoing an abortion. This would have effectively given a minority of anti-choice healthcare staff the power to bring services to a halt because of their personal religious beliefs.
Medical practitioners should have their personal beliefs respected. At the same time, political campaigns to widen the scope of conscientious objection in order to undermine other professionals' ability to provide abortion services, and women's ability to access services, should be exposed for what they are.