Abortion and conscientious objection

In March 2012, I reported on a case in which a Scottish court rejected a claim by two Roman Catholic nurses that the exemption under the Abortion Act 1967 for conscientious objection was not limited to direct participation in abortion procedures, but entitled them to refuse to delegate to, supervise or support staff on their labour ward who were directly involved in terminations. They also argued that the exemption had to be construed in a manner compatible with their right under European Convention on Human Rights (ECHR) article 9 to protection of freedom of thought, conscience and religion and to manifest their religious beliefs. Neither nurse was required to participate directly in the termination procedures.
The judge ruled that article 9 did not permit individuals to manifest their religious beliefs in any manner of their choosing, as previous UK and other human rights cases have demonstrated. The nurses were already protected by the Abortion Act from having any direct involvement with termination procedures and, hence, none of the duties they discharged required them to effect a termination. Respect for their beliefs had been appropriately accommodated.
The nurses recently appealed to the Inner House of the Scottish Court of Session (Court of Appeal) and won. The case turned upon an interpretation of the extent of the right of conscientious objection under the Abortion Act. The court concluded that it was wide and extended to “any” treatment i.e. not only to the actual medical or surgical termination, but to the whole process of treatment given for that purpose, including pre- and post-termination care, delegation, supervision or support. The Court of Appeal’s view was that abortion was a matter on which many people had strong moral and religious convictions and the right of conscientious objection was given out respect for those convictions and not for any other reason. The only circumstances in which a conscientious objection should not prevail were where the termination was necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman. In those circumstances, the object of the process was not to effect a termination, but to save life or prevent serious permanent injury.
Under the Human Rights Act 1998, courts are required to interpret all law in a manner compatible with the rights guaranteed by the ECHR. The court at the judicial review stage had adopted the narrow construction of the right of conscientious objection and concluded that it was compatible with the right to manifest one’s religious beliefs under ECHR article 9. Interestingly, the Court of Appeal made no reference to art 9, though it stated that legislation such as the Abortion Act should be “interpreted in way which allows [the nurses] to be true to their beliefs while remaining respectful of the law”. That position appears at variance with recent cases in the employment context where employers appear to have broad scope for limiting manifestations of religious beliefs in the workplace, particularly when they come into conflict with others’ rights.
The case referred to the guidance issued by the RCM and the NMC, which adopted a narrow interpretation of the extent of the right of conscientious objection and which the court indicated was wrong. Commentators suggested that the advice would need to be changed in the light of the decision. Any changes would apply also to student nurses and doctors on placement. However, the Glasgow and Clyde Health Board has been granted permission to appeal to the Supreme Court on 25th June so any changes may be a little premature. The story continues.

Geraldine Swanton
Senior Associate Solicitor
Education Team
For and on behalf of SGH Martineau LLP
DD: 0800 763 1455
F: 0800 763 1001
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E: geraldine.swanton@sghmartineau.com
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