Abstract
Abortion is considered by some to be a morally questionable intervention, one which entitles the healthcarer to exercise conscientious objection (CO) so as to opt out of acting. The healthcarer’s right to do so was recently considered by the UK Supreme Court (UKSC) in Greater Glasgow Health Board v. Doogan and Wood, a case which set some boundaries on CO but which failed to engage holistically with the foundation of CO and its position relative to the competing right to adequate healthcare, a failure which must be seen as a lost opportunity given the manifold threats to timely access to abortion. This article fills the lacunae. After noting the weaknesses in the Doogan judgement, it justifies the adoption of a more robust approach by the UKSC, and then analyses the moral and rights foundations of abortion and CO, noticing as it does the growing practical problem that is the expansion and misuse of CO in women’s health (i.e. its deployment as a barrier to women seeking lawful abortion services). It concludes that courts everywhere, but particularly in jurisdictions that are widely persuasive, such as the United Kingdom, when faced with the opportunity to pronounce on the right to abortion and the operation of CO, should take full advantage, and in doing so, should adopt a critical and restrictive approach to its availability in the healthcare context.
Introduction
In a healthcare setting characterized by increasingly powerful interventions capable of both facilitating and interfering with the very early and very late stages of human life – stages that have traditionally been viewed as the bailiwick of Nature or God – a plurality of positions, and so some degree of moral conflict, is perhaps to be expected. Like contraception, enforced sterilization, medically assisted conception, withdrawal of care and assisted suicide, abortion is one such intervention; it has implications for the continued development of embryos and foetuses (potential persons), for the health, well-being, access to safe and effective healthcare, and life possibilities of pregnant women (rights-bearing persons-in-being), and for the personal and professional position of healthcarers (moral agents in a unique calling), and it has been at the centre of political storms around the world for a long time.
Historically, the combination of religious characterizations of abortion as sin, a (male) gendered approach to reproductive rights and entitlements, and ongoing efforts by empowered elites to preserve sociopolitical control over others caused abortion to be managed through the criminal law. In the United Kingdom, abortion became a statutory crime under Lord Ellenborough’s Act 1803. 1 It remained under the criminal law until the adoption of the Abortion Act 1967 (1967 Act), 2 which made lawful the participation in abortion by certain individuals under certain conditions. Another example is Canada, wherein the provision of information about, or the means of securing, contraception was characterized as a ‘crime against morality’ until 1969, and where abortion remained under the Criminal Code of Canada (CCC) 3 until 1988. So situated, the (medical) practice of surgically – and now medicinally – terminating unwanted pregnancies has suffered a long, loud, vociferous and lamentably violent history. 4 And despite waves of modernization in the governance of abortion, largely as a result of the slow recognition of human rights and of women’s reproductive rights, abortion remains within the ambit of the criminal law in many countries, 5 many of which impose quite restrictive abortion practices. 6
In jurisdictions where abortion is authorized, healthcarers often have the potential to opt out of participating in treatment by raising a ‘conscientious objection’ (CO). Such a right is contained in section 4(1) of the 1967 Act, which states that no person is under a duty to participate in any treatment authorized by the Act to which he has a CO, though it is the objector’s responsibility in any legal proceedings to prove the CO. 7 CO was most recently considered in Greater Glasgow Health Board v. Doogan and Wood (Doogan), 8 wherein two Roman Catholic midwives who served as labour ward coordinators at the Southern General Hospital objected to taking part in any aspect of the intervention that resulted in the termination of a pregnancy because they believed, in keeping with current Church dogma, that life begins at conception. 9 The case passed from the Outer House of the Court of Session, to the Inner House of the Court of Session and then to the Supreme Court of the United Kingdom (UKSC), for which Lady Hale, for the Court, Lords Wilson, Reed, Hughes and Hodge concurring, stated that the only question before the Court was the meaning of the term ‘to participate in any treatment authorised by this Act’. 10 She thus approached the case as a straight matter of statutory construction with some minimal reference to the social mischief that the 1967 Act was intended to remedy (i.e. unsafe ‘backstreet’ abortions). 11
Given the range of threats to women’s access to safe and timely reproductive healthcare, and to abortions specifically, both in the United Kingdom and elsewhere (despite the political battles that have won a legal foundation for abortion treatment 12 ), and given the attempts, both in this case and beyond, to widen the scope and use of CO in the abortion setting, the UKSC might have taken this opportunity to explore more robustly the foundations of, and justifications for, abortion and CO, and the proper balance that ought to be struck by the medical profession in the use of the latter at the expense of the former. Their Lordships had clearly been invited to do so, but Lady Hale characterized the invitation as a ‘distraction’. 13 It is with this critically important distraction that this article engages. First, it briefly reviews some of the most pertinent criticisms that have been levelled against Doogan, arguing that the UKSC should have adopted an approach which relied more directly on human rights and morality. Second, it justifies this argument by considering the role and authority of the UKSC. Third, it offers a more holistic social and legal analysis of abortion and CO; taking the baton that the UKSC might have run with, it examines the legal foundation of the right to an abortion, and its support from, and indeed grounding in, international human rights law; it then outlines the foundation and scope of CO, noting how it has become a tool in the ongoing battle to undermine access to abortion; it then grounds the limitation of CO in the professional duties of the healthcarer (i.e. physician, nurse, midwife). Fourth, it offers an alternative approach to the scope of section 4(1). It concludes that courts – particularly in jurisdictions that are widely persuasive, like the United Kingdom – when they are confronted with the opportunity to pronounce on important and controversial social and medical practices like CO within the healthcare context, should take full advantage.
The shortcomings of Doogan
As noted, in Doogan, Lady Hale approached the question of the scope of section 4(1) as a matter of standard statutory construction, drawing to some extent on a speculative understanding of what was in the mind of the legislators when they enacted the provision almost 50 years ago. 14 In doing so, she focused her attention on the meaning of ‘treatment’ and ‘to participate in’, as supported by the wording of the Act, noting in the process the position of the parties. 15
With respect to treatment, Lady Hale held that the 1967 Act took a process position (i.e. understood treatment as including the full course of activities that directly brought about the end of the pregnancy).
16
With respect to ‘participation’, she identified a broad and a narrow reading; the broad reading encompassed both direct and indirect or hands-off involvement (i.e. taking calls, allocating staff, providing food, etc.), and the narrow reading comprised only hands-on involvement in the medical procedure itself. She chose the latter in defining the scope of CO,
17
stating: [T]he course of treatment to which the petitioners may object is the whole course of medical treatment bringing about the termination of the pregnancy. It begins with the administration of the drugs designed to induce labour and normally ends with the ending of the pregnancy by delivery of the foetus, placenta and membrane. It would also, in my view, include the medical and nursing care which is connected with the process of undergoing labour and giving birth – the monitoring of the progress of labour, the administration of pain relief, the giving of advice and support to the patient who is going through it all, the delivery of the foetus, which may require the assistance of forceps or an episiotomy, or in some cases an emergency Caesarian section, and the disposal of the foetus, placenta and membrane. In some cases, there may be specific aftercare which is required as a result of the process of giving birth, such as the repair of an episiotomy.
18
Doogan has already been subject to an incisive and compelling critique which demonstrates the uncertainty associated with the UKSC’s analytical foundation, and so the weaknesses in its analysis and conclusions.
21
In that critique, Neal observes that the mischief which the 1967 Act was meant to alleviate was actually a lack of legal clarity around the position of abortions and when they might be lawfully conducted, an ambiguity highlighted by the very different positions that the parties to the litigation adopted with respect to the term treatment. She argues that the UKSC, in determining the scope of section 4(1), therefore appears to rely on an understanding of what was previously criminal, a faulty approach that led to a number of unfounded conclusions.
22
In the course of her critique, Neal observes that the 1967 Act both decriminalized and medicalized abortion, shifting it to a National Health Service (NHS) setting. In doing so, it established abortion as a treatment process in which a team of healthcarers in a structured and accountable clinical context are active in service delivery. As such, a wider understanding of both treatment and participation was warranted.
23
She continues as follows: [A]pproaching the scope of a conscience-based exemption by acknowledging the nature and purpose of such provisions must be preferable to approaching it in a way that ignores them; and when the issue is viewed through the lens of moral responsibility, it is immediately apparent that someone who authorises a process (for example, the general practitioner who signs the form) has moral responsibility for it, as do those who support the process by arranging practicalities, allocating tasks, and supervising those directly involved.
24
The road not taken in Doogan
The UKSC was invited to consider the dispute from a rights perspective and to interpret the contested provision with reference to Article 9 (freedom of religion) of the European Convention on Human Rights (1950) (ECHR). 25 Lady Hale stated that there had been discussion in the proceedings about the relevance of such rights, 26 but she declined to consider the rights and obligations of the parties with reference to the ECHR or to apply a rights-informed analysis of the provision. Characterizing a rights approach as a distraction, she stated that a consideration of Article 9 would not be helpful because it is a qualified right subject to limitations that would implicate employer restrictions that would themselves be context specific, and so any answers arrived at would point neither to a wide nor a narrow reading of the right to CO within the 1967 Act. 27 She also suggested that the UKSC was not equipped to ‘speculate’ on the broader consequences of enunciating a wide or narrow meaning of section 4(1), saying that it did not have the evidence by which to resolve the competing claims being made in relation thereto. 28
In essence, Lady Hale sidelined the obvious and important moral and human rights aspects of the case and thereby denied the parties, the implicated health services, the public and indeed the participants in international and domestic abortion politics, a usefully contextual and rights-informed interpretation of an important and precarious piece of health legislation and a right enunciated therein. Neal observes that the UKSC should have taken much more seriously its task of articulating and justifying the scope of section 4(1), bearing in mind the moral character of the right and the broader responsibilities of healthcarers. 29 I concur. But Lady Hale declined to take up the role that we might reasonably expect of her as a member of a country’s highest and unifying court.
On the matter of role, one might note that Doogan was an appeal from Scotland, for which the UKSC is the final civil court of appeal. 30 Civil appeals may involve constitutional, public administration or human rights issues (i.e. the UKSC has jurisdiction to hear cases relating to the common law or statutory law, including issues implicating the Human Rights Act 1998 (1998 Act) 31 and the Scotland Act 1998 (SCA 1998) 32 ). 33 The UKSC is also the final court of appeal for purposes of considering the ECHR, and so for appealing cases to the European Court of Human Rights (ECtHR). Though the UKSC cannot raise issues under the ECHR, 34 section 3(1) of the 1998 Act obligates the UKSC to interpret legislation in a manner compatible with the 1998 Act (and the ECHR). 35 So rights should be directly engaged with when they are implicated, as they were in Doogan. A further argument for a more robust and rights-sensitive approach can be found in the stated expectation that the impact of the UKSC’s decisions will extend far beyond the parties involved in any given case; they are expected to shape society more broadly, 36 and so of course would need to acknowledge the social context in which the decision operates.
On the latter point, Aharon Barak, President of the Supreme Court of Israel, states that the primary concern of a supreme court in a democracy is not to correct individual mistakes in lower court judgements, but rather to concern itself with broader, system-wide corrective action, which corrective action should focus on two main issues: bridging the gap between law and society and protecting democracy.
37
On the matter of bridging the gap, Barak has elaborated as follows: The law regulates relationships between people. It prescribes patterns of behavior. It reflects the values of society. The role of the judge is to understand the purpose of law in society and to help the law achieve its purpose. But the law of a society is a living organism. It is based on a given factual and social reality that is constantly changing. Sometimes the change is drastic, sudden, and easily identifiable. Sometimes [it] is minor and gradual, and cannot be noticed without the proper distance and perspective. Law’s connection to this fluid reality implies that it too is always changing. Sometimes change in law precedes societal change and is even intended to stimulate it. In most cases, however, a change in law is the result of a change in social reality. Indeed, when social reality changes, the law must change too. Just as change in social reality is the law of life, responsiveness to change in social reality is the life of the law. It can be said that the history of law is the history of adapting the law to society’s changing needs. A thousand years of common law are a thousand years of changes in the law in order to adapt it to the needs of a changing reality. The judge is the primary actor in effecting this change.
38
The above suggests that the UKSC had the authority – indeed the responsibility – to bring the relevant human rights to bear when interpreting this contested statutory provision. Moreover, when adjudging the provision, it need not have felt constrained from placing both the case and the provision in their broader social contexts; it is empowered and expected to contextualize the case before it and to offer an interpretation that serves society as well as the parties. In Doogan, the UKSC was asked to interpret a statutory right that has obvious human rights foundations and that affects a persistently contested but lawful medical procedure that also has clear human rights implications. The UKSC therefore might have begun its substantive judgement by placing the treatment at issue (abortion), the contested practice (CO) and the roles of healthcarers in their broader moral, social and rights context, and from there reasoned its way to an appropriate scope for section 4(1) that made sense in the 21st century. Had it done so, the UKSC would have rendered a judgement that was richer, more satisfying and more useful in light of the potentially wide availability and increasing use of CO. 40 Its narrow interpretive approach must be viewed as an inappropriately spurned opportunity to reaffirm abortion and to articulate the right to CO relative thereto, making clear that its understanding of CO may well have relevance in other healthcare contexts.
An alternative and better (?) approach
Lady Hale stated at the outset that the case was about the precise scope of the right of CO. 41 Obviously, an interpretation of the provision which grants the right is necessitated. However, rather than acknowledge the need to interpret the provision in a way compatible with ECHR rights but then decline to do so because the exercise of the CO would be undertaken in employment settings that would each have unique circumstances, 42 Lady Hale might have highlighted that what was at issue in this case was both access to, and participation in, a contested but lawful (and indeed critical) medical treatment; that an interpretation of section 4(1) necessarily implicated, and so must be informed by a woman’s right to reasonable reproductive health, choice and healthcare and by a healthcarer’s potentially countervailing right to exercise personal moral choice in a professional context that has special moral and ethical features and imposes special and sometimes onerous and unwelcome obligations. The following is an analysis akin to that which might have been undertaken by the UKSC; it is a moral and human rights-based justification of access to abortion and a rights-based consideration of CO and its position in the caring context having reference to an ethics-conscious elucidation of the healthcarer’s responsibilities.
The right to reproductive health and access to abortion
It is axiomatic that all individuals have moral and legal claims to reasonable healthcare as a function of their being human. Indeed, it has been observed that the well-being, productivity and vibrancy of individuals, communities and societies is linked directly to individual and community health, a fact which gives healthcare a special (moral) character. 43 And such is recognized and fully endorsed by the international human rights framework to which the United Kingdom has subscribed through its adoption of the Human Rights Act 1998 and its ratification of human rights conventions.
For example, the Preamble of the WHO Constitution (1946) 44 recognizes that the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being. Article 25 of the Universal Declaration of Human Rights (1948) (UDHR) 45 states that everyone has the right to a standard of living adequate for their health and well-being, including medical care. Article 12(1) of the International Covenant on Economic, Social and Cultural Rights (1966) (ICESCR) 46 states that everyone has the right to the enjoyment of the highest attainable standard of physical and mental health. Other instruments that acknowledge the right to healthcare include the African Charter on Human and People’s Rights (1982), 47 the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (1988), 48 the Convention on the Rights of the Child (1989), 49 the European Social Charter 1996 (Revised) 50 and the European Convention on Human Rights and Biomedicine (1997). 51 It has also been reported that the right is enshrined in over 100 constitutional provisions around the world. 52 And the right has given rise to, and been vindicated in, important jurisprudence. 53 Ultimately, the right to reasonable healthcare without discrimination has been widely (and rightly) accepted as a juridical right (as opposed to a sociopolitical aspiration), although the practical contours and limitations of the right are subject to multiple social and economic factors.
A second socio-moral truth is that women deserve special attention and protection as a result of their special physiological role as child bearers. In this regard, it must be recognized that reproduction is ‘transformative’ for women; it impacts on physical well-being, individual and family priorities and aspirations, identity and financial security. 54 For example, pregnancy causes massive physical changes (e.g. uterus expansion, organ displacement, hormonal surges, weight gain, nausea, and pain), has common complications (e.g. profound nausea, pre-eclampsia, gestational diabetes, and obstetric fistula) and has permanent side effects (e.g. pelvic floor disorders, periodic urinary incontinence, etc.). Educational possibilities can be delayed or lost, especially for single mothers, and securing employment can be more complicated before and during pregnancy, and difficult to retain after pregnancy. Finally, there are manifold social and emotional consequences. All of this points to the fact that a woman’s dignity and individual flourishing is directly and profoundly influenced (and potentially undermined) by reproduction, with the consequence that her choices associated with reproduction must be facilitated as a matter of moral correctness.
Unfortunately, women’s health has long and persistently (and to devastating effect) been marginalized, 55 and the right to terminate an unwanted pregnancy has long and widely been considered a crime (and is still so considered in some countries). 56 Through persistent social, political and legal action, and facilitated by feminism, the social movements of the 1960s, and the growing power of the human rights paradigm, laws against abortion have slowly and unevenly been liberalized. 57 This process, together with the physiological and social consequences of pregnancy noted above, has made clear that access to abortion treatment is rightly characterized as a moral entitlement. 58 And the long standing and universally held socio-moral values of human dignity, equality (or equity) and autonomy are obviously engaged (to the benefit of the woman) in the reproduction context.
Given the above, Article 25 UDHR stipulates that motherhood and childhood are entitled to special care and assistance. Article 10(2) ICESCR states that special protection should be accorded to mothers during a reasonable period before and after childbirth. Article 12 of the Convention on the Elimination of All Forms of Discrimination against Women (1979) (Women’s Convention), 59 which condemns all discrimination against women and which characterizes the refusal of medical procedures that only women require as sexual discrimination, states:
States Parties shall take all appropriate measures to eliminate discrimination against women in the field of healthcare in order to ensure, on a basis of equality of men and women, access to healthcare services, including those related to family planning.
…States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the postnatal period, granting free services where necessary…
In a similar vein, the 1994 Programme of Action of the International Conference on Population and Development explicitly recognized that reproductive rights are human rights: Reproductive rights embrace certain human rights that are already recognised in national laws, international human rights documents and other relevant UN consensus documents. These rights rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to attain the highest standard of sexual and reproductive health. It also includes the right to make decisions regarding reproduction free of discrimination, coercion and violence…
60
decriminalize abortion within reasonable gestational limits, guarantee women’s effective exercise of their right of access to a safe and legal abortion; allow women freedom of choice and offer the conditions for a free and enlightened choice; and lift restrictions which hinder access to safe abortion, which includes taking practical and financial steps to create conditions for health, medical and psychological care in relation to abortion.
All told, a right to reproductive health (and healthcare) has a strong and explicit foundation in key human rights instruments, and where reproductive health – which obviously encompasses safe and effective termination of an unwanted pregnancy – is not explicitly identified, it nonetheless ‘lives’ within the widely enumerated rights to personal security and liberty. In that regard, the Canadian abortion case, R v. Morgentaler, 66 is an important benchmark. In Morgentaler, section 251 CCC 67 was challenged as infringing security of the person under section 7 of the Canadian Charter of Rights and Freedoms (Charter), 68 which section reflects Article 5 ECHR. On the facts, which included evidence relating to the terrible difficulty encountered by women trying to meet the section 251(4) conditions, a majority of the Supreme Court held that women were exposed to a threat to their physical and psychological security and that section 251 could not be saved under the limiting provision of section 1 of the Charter. 69 In the result, reliance on therapeutic panels (which is a feature of the conditions for securing a lawful abortion under section 1(1) of the 1967 Act) was struck down as unconstitutional. 70
Morgentaler is noteworthy not only for the grounding of access to abortion on international human rights-informed Charter rights but also for some of the broader observations offered. For example, Dickson CJC, in finding a Charter breach, stated: Forcing a woman, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman’s body and thus a violation of security of the person.
71
It is probably impossible for a man to respond, even imaginatively, to such a dilemma not just because it is outside the realm of his personal experience (although this is, of course, the case) but because he can relate to it only by objectifying it, thereby eliminating the subjective elements of the female psyche which are at the heart of the dilemma.…[T]he history of the struggle for human rights from the eighteenth century on has been the history of men struggling to assert their dignity and common humanity against an overbearing state apparatus. The more recent struggle for women’s rights has been a struggle to eliminate discrimination, to achieve a place for women in a man’s world, to develop a set of legislative reforms in order to place women in the same position as men…It has not been a struggle to define the rights of women in relation to their special place in the societal structure and in relation to the biological distinction between the two sexes. Thus, women’s needs and aspirations are only now being translated into protected rights. The right to reproduce or not to reproduce which is in issue in this case is one such right and is properly perceived as an integral part of modern woman’s struggle to assert her dignity and worth as a human being.
72
availability (services must be available in sufficient quantity); accessibility (services, including information, must be physically and economically accessible to everyone without discrimination); acceptability (services must be culturally appropriate and sensitive to gender and life cycle requirements); and adequacy (services must be scientifically appropriate and of sufficient quality).
Several important moral and legal propositions are supported. First, equitable access to adequate healthcare is a universally accepted human right, and that right includes a right to reproductive healthcare. Second, women’s health, which has long been marginalized as a result of sexual, gender and reproductive discrimination, has special status and demands special protection. Third, abortion, as a critical element of reproductive healthcare, is morally justified as a condition of respecting women’s dignity, autonomy, equality and citizenship (women should not be forced to incubate and feed another against their will). 74 Fourth, conscious political and legal efforts have been undertaken to legalize abortion and to include it in the public health system; this has sometimes been done explicitly and positively, and sometimes less positively.
For example, note South Africa’s Choice on Termination of Pregnancy Act 1997, which explicitly states in para 4 of the Preamble that the decision to have children is fundamental to a woman’s physical, psychological and social health, and that universal access to reproductive healthcare includes access to family planning and contraception, termination of pregnancy and sexual education and counselling. For a negative approach, we have the 1967 Act, which, without explicitly placing abortion in the broader treatment setting, makes abortion ‘lawful’ in certain circumstances; section 1(1) states that a person shall not be guilty of an offence when a pregnancy is terminated by a registered medical practitioner so long as two registered medical practitioners are of the opinion, formed in good faith, that: the pregnancy has not exceeded its 24th week and its continuance would involve greater risk of injury to the physical or mental health of the pregnant woman or any existing children of her family than its terminated; or the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or the continuance of the pregnancy would involve greater risk to the life of the pregnant woman than if it were terminated; or there is a substantial risk that the child, if born, would suffer from such physical or mental abnormalities as to be seriously handicapped.
In forming their opinion, the medical practitioners are permitted to take into account the pregnant woman’s actual or reasonably foreseeable environment. 75 Ultimately, the 1967 Act legislatively enshrines access to an abortion, though it does so in a negative way. More precisely, it makes abortion treatment lawful under certain conditions, and in doing so, it brings abortion within the highly structured system of the NHS, involving hospitals, health teams and accountability. 76 In other words, the UK acted early to recognize the importance of abortion and to establish access, though its approach is not entirely inspired nor particularly inspiring.
A built-in limitation: CO
Of course, the rights on which abortion is grounded are not absolute, and conditions on access to abortion might be justified on a number of grounds, the most compelling of which is probably the controversial nature of the practice in light of divergent but (arguably) defensible moral positions. Another might be resource allocation, though it must be observed that abortions are typically quick and inexpensive day surgeries; certainly less resource-intensive than birth-related services such as prenatal care, birthing attendance, neonatal intensive care and so on. 77 A further factor which impinges on the right to have an abortion, though it is not meant to actually serve as a limitation on access, is CO. As noted, section 4(1) states that no person is under a duty to participate in any treatment authorized by the 1967 Act to which he has a CO. 78
The right to CO that is acknowledged in the 1967 Act is notionally founded on Article 18 UDHR, which is reproduced in Article 18(1) of the International Covenant on Civil and Political Rights (1966) (ICCPR),
79
which states: Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
Of course, after erecting the right to freedom of conscience and religion, Article 18(3) ICCPR states that: Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
Of course, in Doogan, the UKSC did not address the broader rights foundation of CO, and so did not offer any insight into its proper balancing as against the right to an abortion from a broader conceptual perspective. This was unfortunate because the failure to preserve legal prohibitions against abortion, or alternatively to impose restrictive conditions on access to abortions, has prompted anti-choice advocates to employ CO and other tactics to undermine the provision of timely and safe abortion services.
With respect to ‘other tactics’, it has been reported that, in the United Kingdom, access to abortion is threatened because the number of physicians trained in abortion treatment is falling. 83 This phenomenon is also discernible in other jurisdictions; in Canada, medical schools are neglecting to train physicians in this field, 84 while some physicians choose not to study in this specialty because they face harassment and violence out in practice. 85 While it might be improper to claim that this is a conscious programme of marginalization on the part of medical schools, it is troubling to learn that less than an hour is spent teaching abortion in a 4-year curriculum, while magnitudes more time is spent discussing Viagra. 86 Other actions which undermine access to an abortion include a low and falling number of hospitals providing abortion services, and management and administration decisions which require women to travel to find another provider, which can endanger their confidentiality, their well-being or their life. 87
With respect to CO more specifically, McHale has noted a slow growth of ‘opt-out’ across healthcare provision, 88 a finding in keeping with Cantor’s warning about ‘conscience creep’ in the United States. 89 It has been reported that some 20% of British general practitioners (GPs) are against abortion on the basis of their religious beliefs, and that some of them actively work to delay or prevent women from securing abortion services. 90 In at least one case, this has led to a claim of medical negligence against the physician. 91 It has also been reported that these GPs routinely impose their views about morality and conscientiousness on young women, who are one of the most vulnerable groups in this setting (at risk in no small part because they tend to be less aware of their rights). 92 And there have been efforts to expand the use of CO to more healthcarers and to more peripheral elements of abortion treatment, a case in point being Doogan, where the midwives objected to delegating, supervising and/or supporting staff to participate in, and provide care to, patients throughout the termination process.
Of course, the undermining of access to abortion and the misuse of CO is not just a UK problem. It is a global problem that is driven at least in part by conservative religious institutions intent on undermining women’s reproductive rights.
93
The uneven enjoyment of adequate reproductive healthcare across Europe has long been recognized,
94
and a range of bodies tasked with monitoring human rights and women’s health have repeatedly cited countries for their failure to comply with their obligations. For example, the Committee on the Elimination of Discrimination against Women (CEDAW), which monitors compliance with the Women’s Convention, has issued reports against Italy,
95
Croatia,
96
Poland
97
and Slovakia.
98
Further examples include the following: Norway: CO was available to physicians, nurses and midwives, but it came to light that a growing number of GPs were refusing to refer patients to non-objectors. This led to a 2011 Regulation which banned CO.
99
France: In Pichon and Sajous v. France,
100
two pharmacists were convicted when they refused to serve female customers. They claimed that their freedom to manifest their religion under the ECHR had been violated as a result of their conviction, but the ECtHR concluded that their refusal to sell contraceptives did not fall within the scope of the right to manifest a religious belief. It also emphasized that the pharmacists could not give priority to their personal beliefs over their professional obligations where the sale of such medicine was legal and could only occur by prescription at a pharmacy.
101
Poland: In RR v. Poland,
102
a woman was denied a prenatal genetic examination in part as a result of the physician’s CO. The ECtHR observed that her access to care was marred by procrastination and confusion, and that she was treated shabbily, resulting in acute anguish. It concluded that States are obliged to organize healthcare systems so that freedom of conscience does not prevent patients from securing services. In P and S v. Poland,
103
the ECtHR reiterated that physician rights to object must be balanced with patient rights to access abortion. In fact, both the UN Human Rights Committee, which monitors compliance with the ICCPR, and the UN Committee on Economic, Social and Cultural Rights, which monitors compliance with the ICESCR, have expressed concern about Poland’s measures to achieve quality, affordable reproductive health services.
104
Canada: It has been reported that anti-choice GPs have refused to provide referrals for abortions, and indeed have been known to give women misinformation about eligibility and timing, sometimes stalling in the provision of information until after the statutory gestational limits are passed.
105
United States: The misuse of CO is particularly acute.
106
State Legislatures have drafted statutory provisions permitting hospital administrators, ambulance attendants and others to object on the basis of religion. For example, the Mississippi Health Care Rights of Conscience Act 2004 opens the possibility of objecting to providers of any phase of patient care, including but not limited to referral, counselling, therapy, testing, diagnosis, research, instruction, prescribing, dispensing or administering devices, drugs or medication, surgery or any other care.
107
Anti-choice advocates have since drafted a similar model statute and associated policy guidance for use in political lobbying and legal actions against abortion.
108
Also note the US foreign aid policy which restricts overseas NGOs that receive US aid from using any money (including their own private funds) to provide abortion services, to advocate for a liberalization of their own abortion laws or to offer full and accurate abortion information to patients.
109
All told, the politico-legal environment routinely inhibits women from exercising their autonomy and determining their own course of medical treatment, and the exercise of CO has compounded this problem. 110 This interference with their ability to set their own conditions of existence, it has been argued, represents an unjust state of ‘domination’ which should not be tolerated. 111
Because CO has been inordinately directed at interventions in women’s health, CEDAW issued General Recommendation No. 24.
112
Paragraph 6 states that special attention should be given to the health needs and rights of women belonging to vulnerable and disadvantaged groups. Paragraph 11 adds that: …It is discriminatory for a State party to refuse to provide legally for the performance of certain reproductive health services for women. For instance, if health service providers refuse to perform such services based on conscientious objection, measures should be introduced to ensure that women are referred to alternative health providers.
The professional healthcarer and CO
It is important to first recognize that physicians must be both scientifically and ethically grounded (and educated) in order to perform their functions, which are undeniably public functions. 114 In other words, conscience and conscientiousness runs through all of their professional duties and judgements, and those duties include forming both ethically and scientifically sound clinical judgements, and thereby serving as (moral and trustworthy) gatekeepers to the NHS’s healthcare services. Indeed, Montgomery argues that cases such as Re J, 115 R (Burke) v. GMC, 116 AVS (by his litigation friend CS) v. An NHS Foundation Trust, 117 Aintree NHS Trust v. James 118 and others demonstrate both the integration of conscientiousness in health professionalism and the belief that the exercise of professional judgement is informed by moral considerations (i.e. that healthcare is a ‘morally suffused activity’). 119 That being so, healthcarers must be viewed as moral agents who are particularly sensitized to morality, or rather to ethically balanced assessments.
The morality or conscientiousness to which healthcarers must conform is informed at least in part by general and long-standing notions of medical ethics. The concept of ‘medical etiquette’ first appeared in Greece around 500 BCE and eventually coalesced into the Hippocratic Oath, which clearly states that a physician is there for the benefit of his patients, and must, to the best of her ability, do good, and additionally do nothing that will cause harm (thereby foreshadowing the contemporary principles of beneficence and non-maleficence).
120
Under the modern version of the Hippocratic Oath, which has global reach, physicians declare the following:
121
I will apply, for the benefit of the sick, all measures which are required, avoiding those twin traps of overtreatment and therapeutic nihilism. I will remember that I remain a member of society, with special obligations to all my fellow human beings, those sound of mind and body as well as the infirm.
The World Medical Association has issued a Code which states that physicians shall maintain the highest standards of professional conduct; respect a competent patient’s right to accept or refuse treatment; not allow his judgement to be influenced by personal profit or unfair discrimination; provide competent medical service in full professional and moral independence, with compassion and respect for human dignity; deal honestly with patients; and respect the rights and preferences of patients. 122
The following examples go some way to demonstrating the moral/ethical character of the healthcare professions and how conscientiousness is intended to inform their day-to-day professional activities. The General Medical Council (GMC), which sets standards for students and physicians, instructs its members to, inter alia:
123
make the care of their patient their first concern; protect and promote the health of patients and the public; treat patients as individuals and respect their dignity, working with them and responding to their concerns and preferences; give patients the information they want or need in a way they can understand so they can realize their right to reach decisions about their treatment; and never discriminate unfairly against patients or colleagues, or abuse their trust.
The International Council of Midwifery recognizes that pregnancy is a profound experience which carries significant meaning for the woman, and it articulates its philosophy in the following propositions:
124
Midwifery care promotes, protects and supports women’s human, reproductive and sexual health and rights and is based on the ethical principles of justice, equity and respect for human dignity. Midwifery care is emancipatory as it protects and enhances the health and social status of women and builds women’s self-confidence in their ability to cope with childbirth. Midwifery care takes place in partnership with women, recognizing the right to self-determination, and is respectful, personalized, continuous and non-authoritarian.
The Royal College of Nursing, which oversees nurses and works in cooperation with the Nursing and Midwifery Council, instructs nurses and staff to treat patients with dignity and humanity, showing compassion and sensitivity, to engage and communicate with patients and put them first and to lead by example. 125 A similar collection of virtue-grounded professional duties are espoused by other important professional bodies around the world. 126 Compliance with these duties has contributed to healthcarers constructing, by-and-large, a series of competent, public-serving professions the most virtuous members of which have placed patients above themselves and modelled high degrees of self-sacrifice. 127
Subsection 4(1) of the 1967 Act relieves physicians (and other healthcarers) from having to justify their decision according to the above professional standards and values; it allows them to impose their personal sensibilities unclothed by clinical judgement or jargon (i.e. to expose and impose their personal values and views in the clinical setting in which they have professional and statutory obligations to serve steadfastly and without discrimination). In short, it allows them to retreat in some way from the value of beneficence, which is meant to shape their interactions with patients. Because section 4(1) allows the exercise of personal rather than professional conscience, Montgomery claims as follows: …[CO] as set out in s 4 of the Abortion Act 1967 needs to be understood as an act of heresy, a departure from the orthodox professional identity. It therefore needs to be justified by reference to the possibility of accommodating heterodox positions without undermining the identity of the profession.
128
With respect to exercising CO (and so departing from professional identity), the British Medical Association, a union which represents over 170,000 physicians, states that physicians should have a right to CO to participation in certain treatments, including abortion, but should not allow their religious or cultural beliefs to impact negatively on the doctor–patient relationship. 130 However, it notes that this right is not absolute and must not impact on the patient’s right to care, and it cautions against discriminatory practices. 131 The GMC and the General Pharmaceutical Council also allow CO, though both indicate that their members must inform employers, partners, colleagues and relevant authorities about their views so that patient care is not compromised. 132 The Royal College of General Practitioners allows for wide-ranging opt-outs, 133 and it has been argued that there now exists a lack of clarity about which treatments healthcarers may validly opt out of using CO. 134
The above suggests that healthcarers are expected to be reasonable and circumspect in their approach to CO; too ready a reliance on it would undermine the values and standards which they are expected, as a self-regulating public-serving profession, to meet. Recognition of such would have been useful in Doogan; the UKSC might have stipulated that, while religious belief may well be a private matter, the exercise of CO in healthcare is not; it is a professional privilege that impacts on the timely availability of lawful treatments, and so its exercise is of great concern to the public.
135
It might have added that its invocation might therefore be limited to quite narrow circumstances, for healthcarers surely know (and accept) that they have an ethical duty to provide treatment that may not sit well with them (i.e. their sensibilities are often and rightly secondary to the needs of their patients).
136
Here, one might recall the admonition of Pope John Paul II: …[F]reedom of conscience does not confer a right to indiscriminate recourse to conscientious objection. When an asserted freedom turns into a licence or becomes an excuse for limiting the rights of others, the State is obliged to protect, also by legal means, the inalienable rights of its citizens against such abuses.
137
Treatment and objection: A proper balance
The above offered a rights foundation for abortion and for CO, and a contextualizing view of the healthcare profession, all of which supports a relatively limited availability of CO in the abortion (and other healthcare) context.
138
Had UKSC considered this foundation when interpreting the scope of section 4(1), it might have found as follows: By operation of the 1967 Act, abortion has been brought into the NHS system, which relies on healthcare teams providing treatment which is often (and in this case) viewed as a process involving a range of medical and non-medical actions and staff. CO is justifiably available to any of those individuals, but, bearing in mind the competing rights and the professional duties and identity implicated, the conditions for exercising CO are strict and the availability of its invocation is narrow.
The UKSC might then have articulated those conditions with respect to the 1967 Act and beyond and offered some insight into the range of measures that might be adopted (by health authorities) to ensure timely access to abortion treatment and the appropriate exercise of CO (so that all UK stakeholders might be unquestionably aware of their responsibilities when it comes to abortion services and the scope of CO in relation thereto). The measures that might be adopted to ensure access to abortion and justifiable use of CO implicate training, healthcare administration and personal action.
With respect to training and administration, the government and health authorities might have been encouraged to scrutinize and work with medical and healthcare educators to ensure that they are training sufficient numbers of healthcarers to provide quality reproduction services. Related to this, medical schools, health authorities and hospital administrators might have been reminded that they need to ensure that NHS and hospital management policies are such that sufficient numbers of healthcarers trained and prepared to undertake a full range of care, including abortions, are on staff. 139 They must also ensure that a sufficient number and spread of hospitals with quality abortion services exists and that clinics are appropriately folded into the healthcare architecture. Related to this, it might have been strongly emphasized that institutions cannot invoke CO, and must not contractually limit their employees from participating in reproductive healthcare, including abortion.
With respect to training and personal action, the UKSC might have noted that medical schools and health authorities need to ensure that medical and healthcare education equips practitioners to comprehend the basis of the abortion debate from multiple perspectives (i.e. their profession, society and individual women affected).
140
This will not only allow healthcarers to think proactively about their own values and duties but also to fashion comprehensible COs when they have them and to evaluate COs that have been made. With respect to shaping personal action, the UKSC might have encouraged health authorities to ensure that clear policies and mechanisms for the exercise of CO are in place.
141
Fovargue and Neal offer a defensible list:
142
A CO can be invoked in response only to those treatments whose status as ‘proper medical treatment’ is contested or liminal.
143
When invoked, CO must meet certain criteria to wit the position held must be: sincere; tolerable and respectful of the conscientious conclusions of others; capable of articulation and externalization; and fundamental such that its violation poses a serious risk to one’s moral integrity. As a condition of exercise, CO must be contingent upon satisfying duties to: behave respectfully, sensitively, empathically and non-confrontationally to the (possibly vulnerable) patient
144
; avoid imposing unnecessary or unreasonable burdens on patients and colleagues; act despite one’s CO in emergency situations; account if called upon to do so; and immediately refer the patient to another physician within the institution or as close as possible so that the treatment can be obtained.
145
A few words on criterion 2.c. and duty 3.d. is warranted. The criterion suggests a need for the objector to articulate and make public (at least to some extent) the CO. While the details would certainly be left to the employer, it has been argued that COs should be made in writing, which form must advance a sensible position rationally connected to one’s moral integrity and which form must additionally be reviewed. 146 Given the ideological positions that have occupied abortion politics, some form of review seems appropriate.
On the matter of criteria and duties, the UKSC might have profitably noticed a number of significant authorities and precedents. For example, the WHO has stated the following: Health-carers who [CO] must refer the woman to another willing and trained provider in the same, or another easily accessible healthcare facility. Where referral is not possible, the health-care professional who objects must provide abortion to save the woman’s life or to prevent damage to her health. Health services should be organised in such a way as to ensure that an effective exercise of the freedom of conscience…does not prevent patients from obtaining access to services to which they are entitled.
147
CO can only be exercised by an individual with direct participation in the procedure (e.g. surgical nurses, surgeons, anaesthetists, not admitting staff, post-operative nurses, office personnel, ambulance attendants, dispensing pharmacists, etc.).
152
The healthcarer must state his objection in writing, indicating reasons, and with reference to the facts of the case, but without general language offered by other institutions such as religious authorities, and objections must be reviewed by another medical professional or government committee (to test for religious or moral foundation, consistency, etc.).
153
The healthcarer must refer the patient to a willing colleague, and hospitals can recover liability costs from physicians who fail to meet their obligations to refer.
154
The healthcare service must ensure the presence of a sufficient number of healthcarers to protect the rights of women to medically indicated abortions.
155
Institutions such as health facilities cannot exercise the right of CO because they are not natural persons with a conscience or soul, nor can institutions enter into agreements to refuse to provide abortions, nor direct their physicians to refuse to perform abortions.
156
Obviously, the UKSC cannot impose all of the above obligations on all of the relevant actors (in all of the potential CO scenarios) in the context of a single case. But highlighting them in Doogan would have been salutary; it would have brought the significance of the precedent more in line with the more comprehensive and socially situated Decision T-388/2009, which is much celebrated, 157 and it would have made the decision more relevant beyond the facts of this case, an outcome to which the UKSC should aspire.
Conclusion
Access to safe and legal abortion, where it has been achieved, is under threat, not least from healthcarers who would decline to advise patients about, or to perform, abortions based on their religious or ideological beliefs. Given the growing prevalence of questionable deployments of CO, a robust discussion of its foundation and limits is warranted so that it is clear to all interested parties that the right of CO is grounded in the human right of freedom of conscience and religion, that its use by healthcarers is justified, but that the right of CO is subject to limits, and that the restrictions on its use are properly broad and strictly enforced in the abortion context because of what is at stake, namely the physical and emotional well-being of women (and families) and their right, long undermined, to dignity and autonomy in reproductive health. Other supreme courts have offered much more holistic examinations of CO and its proper limits, and so have better reminded healthcarers and other public officials that they must respect the conscience of the women to whom they owe duties of care. Doogan could and should have been an equally holistic examination, affirming the obligation to use CO sparingly, and with clear and rational justifications and supported by acceptably moral behaviour, but it was not. The UKSC’s failure to grasp the nettle of CO in its broader context must be seen as a lost opportunity to provide much-needed clarity in the caregiving landscape. Perhaps next time.
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship and/or publication of this article.