UK ruling: Indirect participants cannot invoke Conscientious Objection

Many thanks to Michelle Hayman, a second-year law student at the University of Toronto’s Faculty of Law, for summarizing this new important new decision from the Supreme Court of the United Kingdom.

Greater Glasgow Health Board v Doogan & Anor
decision of December 17, 2014.
[2014] UKSC 68, [2015] SLT 25.  17-page judgment online.

This case concerns the scope of the right to conscientious objection to providing treatment to terminate a pregnancy under s. 4(1) of The Abortion Act 1967. Doogan and Wood are practicing Roman Catholics and experienced midwives who were employed as Labour Ward Co-ordinators. They raised a labour grievance regarding the lack of accommodations for their religious objections at the Southern General Hospital in Glasgow.

The UK Supreme Court rejected the claims of Doogan and Wood and reversed the expansive scope of the Scottish appeal court’s decision, ruling instead that s.4(1) should be interpreted narrowly, to allow conscientious objection only to direct participation in procedures. As Lady Hale explained, “Parliament will not have had in mind the hospital managers who decide to offer an abortion service [.] 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” (para 38). Lady Hale did identify specific elements of the Labour Ward Co-ordinator’s work that would be covered by the clause, such as providing break relief personally for midwives assisting with a termination (para 39).  However, the Court stipulated that in those cases, any conscientious objector is under an obligation to refer the issue to a professional who does not share their objections.

Lady Hale did not rule on the issue of whether the respondents’ rights to respect for their religious beliefs under Article 9 of the European Convention on Human Rights have been unlawfully restricted. She stated that this issue was better suited to resolution in the employment tribunal proceedings, rather than in judicial review (para 24).

Reproductive rights advocates in the United Kingdom are viewing this as a victory for allowing women barrier-free access to hospital terminations.

The full judgment (17 pages)  is online here.

For background, international and legal context, see “The Right to Conscience” by Bernard M. Dickens, chapter 10 in Abortion Law in Transnational Perspective: Cases and Controversies (University of Pennsylvania Press, 2014).

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