HUMAN RIGHTS by Terri M. KelleherNews Weekly
Conscience may be free, but its exercise ... ?
, June 20, 2015
UK midwife Mary Doogan is facing the sack because of her conscientious objection to abortion.
Mary is visiting Australia and will tell her story as guest speaker at the annual Life Dinner at Mannix College, Monash University on 27 June.
Mary and fellow midwife Connie Wood, who have been midwives for over 20 years, battled through the courts for seven years seeking protection of their right to freedom of conscience not to be involved in abortions.
Mary had been employed for about 20 years as labour ward coordinator in Glasgow’s Southern General Hospital when the dispute arose. “Labour ward coordinator” is a management and leadership role which requires delegation of direct patient care to midwives and the provision to them of supervision and support.
When they began working on the labour ward, Mary and Connie had each intimated to the hospital that she had a conscientious objection to participating in abortions. Accordingly, although some abortions had always been performed on the labour ward, during the course of their employment, neither woman had ever been expected to participate in the treatment of women undergoing abortions.
The hospital had thus managed to accommodate Mary and Connie’s conscience-based positions for many years.
However, due to ward closures in local hospitals, the number of abortions on the labour ward at the Southern General Hospital increased over the years, to the extent that by 2007 the women had became concerned and initiated a formal grievance procedure in which they sought clarification that, on account of the position they had articulated clearly on taking up their employment, they would not be expected to delegate, or to provide supervision or support, at any stage of the abortion process.
The grievance procedure progressed through several stages and Mary’s and Connie’s request for reassurance was eventually refused by the Health Board and they took the matter to court.
They first sought confirmation from their employer, the Greater Glasgow and Clyde Health Board (the Health Board), that they were not required to delegate, supervise or support staff participating in abortions. When refused they took the matter to the court.
They claimed that the refusal to recognise their entitlement to conscientious objection was unreasonable and violated their rights under Article 9 of the European Convention on Human Rights (ECHR), which guarantees the right to freedom of thought, conscience and religion.
They sought a finding that they were entitled to conscientious objection to taking part in abortions under section 4(1) of the 1967 UK Abortion Act which provides that “no person shall be under any duty ... to participate in any treatment authorised by this act to which he has a conscientious objection”.
The Court of Sessions in Edinburgh in February 2012 decided the midwives’ human rights had not been breached as they were sufficiently removed from direct involvement as to afford appropriate respect for and accommodation of their beliefs.
By this time Mary had been absent through ill health since 2010 as a result of the dispute. She said she had “been to hell and back”. And Connie, in her role as labour ward coordinator, had been required to provide direct care to a patient undergoing an abortion when the attending midwife was called away. She said this caused her “considerable distress and anxiety” and resulted in her seeking a transfer to maternity assessment work.
Still Mary and Connie battled on, taking their claim to the appeal court, where they won.
In the decision issued on April 24, 2013, Lady Dorrian, who heard the appeal 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.”
Lady Dorrian added: “The right is given because it is recognised that the process of abortion is felt by many people to be morally repugnant.”
Mary and Connie said the judgement was a “welcome affirmation of the rights of all midwives to withdraw from a practice that would violate their conscience and which over time, would indeed debar many from entering what has always been a very rewarding and noble profession”.
Paul Tully, general secretary of the Society for the Protection of the Unborn Child (SPUC), which assisted Mary and Connie in their struggle, said: “This outcome will be a great relief to all midwives, nurses and doctors who may be under pressure to supervise abortion procedures and who are wondering whether the law protects their right to opt out.”
But their relief did not last long. The Health Board went on appeal to the UK Supreme Court, which in December 2014 decided against the midwives. The court found that the managerial and supervisory tasks carried out by Mary and Connie as labour ward coordinators did not come within the meaning of the word “participate” in section 4, which means taking part in a “hands-on” capacity.
The ruling makes the conscience clause in section 4 practically meaningless for senior midwives such as Mary and Connie.
Mr Tully of SPUC said the decision could also affect junior midwives: “They could easily be placed in an impossible situation by pro-abortion superiors, and would be unable to receive promotion to a more senior role without fear of being required to violate their consciences.”
He said that the ruling also effectively declared that the Abortion Act’s conscience clause (section 4) did not apply to general practitioners or hospital doctors who may be asked to prescribe abortion drugs.
“We anticipate that this will lead to renewed efforts by health officials to force doctors who have a conscientious objection to abortion either to compromise their respect for human life or to leave the profession,” Mr Tully said.
Mary was devastated by the decision: “I think it’s a serious loss of liberty that everyone should be worried about because it’s a totally cynical attempt to restrict freedom of conscience. … People are sleep walking their rights away.”
Mary says her personal future is still uncertain but, although this legal battle appears to have been lost, she is still hopeful: “I think if there was enough pressure on the Parliament they could be persuaded to look at this and properly protect freedom of conscience.”
Mary and Connie have paid a high price for exercising their conscience, as did Dr Mark Hobart, who faced a Medical Board investigation over his conscientious objection to referring a perfectly healthy 20-week unborn baby girl for a gender selection abortion.
Terri M. Kelleher is National president of the Australian Family Association.