ADF International

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Four Reasons for Hope in the Scottish Midwives Case

Mary Doogan and Connie Wood are senior midwives in Scotland who believe that life begins at conception. Their legal case arose out of concerns that the reorganization of hospital services in their city would result in an increased number of abortions in the ward they supervised. The most senior court in Scotland agreed with them, concluding that the right to conscientious objection guaranteed in the United Kingdom’s Abortion Act should be given a wide interpretation because it is “consistent with the reasoning which allowed such an objection in the first place.”

The National Health Service in Scotland appealed that decision to the United Kingdom’s Supreme Court, which had to decide how far this right went.

Since the justices issued their ruling, some have touted it as a loss for the midwives. That’s true only on the surface. There is much good in this decision that isn’t getting enough attention.

The justices noted that they had been presented with “a spectrum of constructions.” The most narrow was the interpretation offered by the Royal College of Midwives. The RCM argued that the exemption related solely to the act which causes the abortion, which, they said, included the administration of drugs causing premature labor, but not care during labor, delivery of the baby, or anything required thereafter.

Doogan and Wood disagreed, arguing that the right covered any involvement with the abortion, in which they could not, in good conscience, participate.

The Supreme Court looked at the language of the exception which covers “participation” in the “treatment.” On the question of “treatment,” the court agreed with Doogan and Wood in deciding that the objection may apply to the “whole course of medical treatment bringing about the termination,” and that it also included “the medical and nursing care which is connected with the process of undergoing labor and giving birth.”

The court acknowledged that the question of what amounted to “participation” was more difficult. The midwives had argued for a broad meaning covering things done in connection with the abortion such as assigning, supervising, and supporting staff.

In a unanimous decision, written by Lady Hale, the court ruled that “participating…means taking part in a ‘hands on’” capacity, overturning the Scottish court. But at least four good things come through clearly in the judgment, despite how headlines might be portraying the decision.

First, the Supreme Court was at pains to make clear this was a case relating to the proper interpretation of part of the Abortion Act, saying “this is, as already stated, a pure question of statutory construction.” The decisive feature of the court’s decision was, therefore, an inquiry into what Parliament had intended when it passed the law in 1967.

The court explicitly avoided any in-depth discussion of the European Convention on Human Rights because it “would not necessarily point to either a wide or a narrow reading of [the] Act”. And in many ways, that must be right – the Convention doesn’t dictate that in any or all situations this law should be interpreted broadly or narrowly. For that reason, the judgment is particularly narrow. It does not address general questions on freedom of conscience or explore the limits of freedom of religion under the Convention.

The second good point that Lady Hale makes clear may reveal the reason that the court determined that it did not need to engage in detailed exploration of the Convention. She states that, “even if not protected by the conscience clause … the [midwives] may still claim that, either under the Human Rights Act or under the Equality Act, their employers should have made reasonable adjustments … to cater for their religious beliefs.” This clearly indicates that, even though some aspects of the midwives’ objection are not protected by the Abortion Act, other protection may be available. This is where the narrowness of the judgment can most clearly be seen.

Third, this is not the end of the case. As Lady Hale notes, there is, in fact, an ongoing Employment Tribunal case held pending this judgment which will be “much better suited to [resolve] the question of practicable adjustments.” Even beyond that lies the possibility of an appeal to the European Court of Human Rights.

Finally, the decision indicates that an employer is forbidden under the Equality Act from discriminating against his employees because of their religion or belief. Interestingly, Lady Hale notes that this may require the employer to make “reasonable adjustments.”

The idea of making reasonable adjustments has long existed in disability law in the UK but was only for the first time this year applied to religion or belief by the UK’s highest court.

Now, when an employer adopts a policy that effectively and more heavily impacts employees holding a particular religion or belief, the employer may be required to explain the aim of the policy and why the policy is the most proportionate way of achieving that aim. Lady Hale has cemented the requirement that employers first seek to accommodate such an employee or else be found in violation of Britain’s equality legislation.

And that is a very good thing.

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