Mary Doogan, 58, and Concepta Wood, 52, (pictured) lost a previous case against NHS Greater Glasgow and Clyde (GGC) when the court ruled that their human rights had not been violated as they were not directly involved in terminations.
However appeal judges have now ruled their right to conscientious objection means they can refuse to delegate, supervise or support staff involved in abortions.
The Guardian, BBC and Scottish TV have all reported on today’s ruling and I have previously blogged more extensively on the case here and here. The midwives have understandably welcomed today’s verdict.
The judgment is hugely significant and means that official guidance from both the Royal College of Midwives (RCM) and the General Medical Council (GMC) will almost certainly now need revision.
The Abortion Act 1967 gives healthcare professionals the right to conscientiously object to ‘participate’ in abortion but the scope of the word ‘participate’ has been the matter of some legal dispute.
But Lady Dorrian, who heard the challenge with Lord Mackay of Drumadoon and Lord McEwan, said: ‘In our view 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.’
She said the conscientious objection in the legislation is given ‘not because the acts in question were previously, or may have been, illegal’ but ‘because it is recognised that the process of abortion is felt by many people to be morally repugnant’.
Lady Dorrian added: ‘It is in keeping with the reason for the exemption that the wide interpretation which we favour should be given to it. It is consistent with the reasoning which allowed such an objection in the first place that it should extend to any involvement in the process of treatment, the object of which is to terminate a pregnancy.’
In the earlier judgement Lady Smith had said that since the midwives were not covered by the conscience clause as ‘they (were) not being asked to play any direct role in bringing about terminations of pregnancy’.
But this has now been overturned.
If this latest ruling is not overturned by a higher court (and it is not yet clear if an appeal will be made by the Greater Glasgow and Clyde Health Board) then the current RCM guidance will almost certainly need to be revised. It currently reads as follows:
‘The RCM believes that the interpretation of the conscientious objection clause should only include direct involvement in the procedure of terminating pregnancy. Thus all midwives should be prepared to care for women before, during and after a termination in a maternity unit under obstetric care.’
In addition, the latest GMC guidance, which ironically came into force only two days ago, will similarly need to be rewritten. It currently reads:
‘In England, Wales and Scotland the right to refuse to participate in terminations of pregnancy (other than where the termination is necessary to save the life of, or prevent grave injury to, the pregnant woman), is protected by law under section 4(1) of the Act. This right is limited to refusal to participate in the procedure(s) itself and not to pre- or post-treatment care, advice or management, see the Janaway case: Janaway v Salford Area Health Authority  1AC 537’
As Neil Addison points out in para 33 of the Judgment the court makes clear that professional guidelines can be legally wrong and cannot overrule statute, it says:
‘Great respect should be given to the advice provided hitherto by the professional bodies, but prior practice does not necessarily dictate interpretation. Moreover, when the subject of the advice concerns a matter of law, there is always the possibility that the advice from the professional body is incorrect’.
Because this Judgment is from a Scottish Court (and Scotland is a different jurisdiction to England and Wales) it is not strictly binding on an English Court. However it will have nonetheless have significant persuasive force in England. The Abortion Act 1967 applies in England, Wales and Scotland (but not in Northern Ireland) and when Scottish Courts have adjudicated on such ‘cross border’ legislation in the past their decisions have been taken very seriously in England and Wales and vice versa.
I have previously argued that the GMC was over-interpreting the law in a grey area in issuing its guidance. But this latest judgement clarifies the law in a way that now makes that virtually certain.
I trust that the RCM and GMC will move swiftly to review and revise their guidance so that midwives and doctors with a conscientious objection to abortion are clear where they now stand.