The Right Not To Participate In Abortion

A legal review

Neil Addison, Barrister at Law

One of the most obvious problem areas involving conscience and medical ethics arises when a medical practitioner is asked or instructed to participate in, or to arrange an Abortion. As Director of the Thomas More Legal Centre I have become involved in advising Doctors coming under that sort of pressure and I was also involved in considering the legal implications of recent proposals before the BMA which were designed to restrict the right of doctors to refuse to be involved in Abortion or referral for Abortion. What has become apparent to me is that both those who are opposed to Abortion and those who want to restrict the right of moral objection are taking a far too narrow, and a rather outdated view of what the legal position actually is.

All Doctors and nurses are probably aware of the "conscientious objection" clause in s4 of the Abortion Act 1967 which says

"no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection"

The leading case concerning s4 is Janaway v Salford HA [1988], 3 All ER 1079 HL where a doctor's secretary (Janaway) refused to type a referral letter for an abortion and was unsuccessful when she claimed that she was protected by s4. The House of Lords, in interpreting the word "participate" decided to give the word its "ordinary and natural meaning" which meant that s4 only applied to those who were being required to take part in an Abortion (e.g. the gynaecologist, the anaesthetist, or the assisting nurses) and did not cover ancillary involvement such as signing an Abortion Certificate or referring a patient to another Doctor who would carry out an Abortion. The general effect of the Janaway case has been an assumption that Doctors in particular only have very limited legal rights to object to involvement in the Abortion process.

Fortunately the GMC guidance on "Good Medical Practice" is somewhat more understanding and s8 says

"8 If carrying out a particular procedure or giving advice about it conflicts with your religious or moral beliefs, and this conflict might affect the treatment or advice you provide, you must explain this to the patient and tell them they have the right to see another doctor. You must be satisfied that the patient has sufficient information to enable them to exercise that right. If it is not practical for a patient to arrange to see another doctor, you must ensure that arrangements are made for another suitably qualified colleague to take over your role"

In the recent BMA meeting there was an attempt to change clause 8 so that the only conscientious objection that Doctors would be allowed would be the limited statutory protection given by s4 and though that proposal was defeated it may well return.

However what Doctors, the NHS, the BMA the GMC and pro Abortion activists all need to remember is that since the case of Janaway there have been three important legal developments affecting the religious freedom of Doctors and Nurses namely, the Human Rights Act 1998, the Employment Equality (Religion or Belief) Regulations 2003 and Part 2 of the Equality Act 2006 (Discrimination on Grounds of Religion or Belief): medical instructions, NHS contracts, GMC guidelines etc have to be compatible with these pieces of legislation as well as with s4, Janaway is still good law but it is no longer the last word on the subject of conscientious objection.

Under s6 of the Human Rights Act:

"It is unlawful for a public authority to act in a way which is incompatible with a Convention right"

What this means is that the GMC and the NHS, which are "public authorities", have to act in a way that is compatible with the European Convention on Human Rights, and the GMC has to apply its professional rules in a way that is compatible with the Convention; Article 9 of the Convention says:

FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

In addition the NHS, and other medical employers, have to conform to the Employment Equality (Religion or Belief) Regulations 2003 reg 3 of which says:

"3(1) For the purposes of these Regulations, a person ("A") discriminates against another person ("B") if -

(b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same religion or belief as B, but

(i) which puts or would put persons of the same religion or belief as B at a particular disadvantage when compared with other persons,

(ii) which puts B at that disadvantage, and

(iii) which A cannot show to be a proportionate means of achieving a legitimate aim."

Under reg 5 it is unlawful for any employee to be subjected to harassment because of their religion or belief, harassment being defined as

"unwanted conduct which has the purpose or effect of -

(a) violating dignity; or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment"

Finally the GMC has to apply its professional rules in a way that is compatible with Part 2 of the Equality Act 2006, section 45(3) of which is basically identical to reg3, above.

There can be no legal doubt that any attempt to tell a Catholic Doctor or nurse that they MUST refer a patient for an Abortion would be an attempt to make them act in a way that is contrary to fundamental Catholic belief, para 2272 of the Catechism of the Catholic Church says:

"Formal cooperation in an abortion constitutes a grave offence, The Church attaches the canonical penalty of excommunication to this crime against human life."

Whilst para 2268 says:

"The fifth commandment forbids direct and intentional killing as gravely sinful. the murderer and those who cooperate voluntarily in murder commit a sin…..Concern for eugenics or public health cannot justify any murder, even if commanded by public authority."

It is right to add that Evangelical Protestants and other Orthodox Christians would completely agree with para 2268 of the Catechism whatever their other views might be about Catholic belief or the teaching authority of the Catholic Church. The relevance of the Catechism for Catholic Doctors and Nurses is however more than purely Theological it also has legal significance; Article 9, the 2003 Regulations and the Equality Act all permit restrictions on Religious Freedom which are "necessary" and "proportionate" and in deciding what is necessary or proportionate Courts must look at the importance and significance of the particular religious belief in question, Sarika Singh v Aberdare Girls School [2008] EWHC 1865, and the Catechism makes clear that "cooperation" with Abortion is at the highest level of sinfulness attracting the ultimate religious sanction of excommunication.

In the Janaway case the House of Lords engaged in a regrettable degree of semantic hair splitting concerning the word "participate" and thereby restricted the conscientious objection protection afforded by s4 of the Abortion Act, however Courts does not have the power to define the meaning of words used as part of religious teaching nor can they go behind those religious teachings or beliefs Amicus v Secretary of State for Trade and Industry [2004] EWHC 860 (Admin) and Secretary of State for Education and Employment ex parte Williamson [2005] UKHL15. and that means that Courts do not have the legal power to restrict the wide meaning which the Catechism gives to the word "cooperate".

Doctors and Nurses who find themselves being pressurised to participate or facilitate Abortions, in any way, should therefore be aware that they have the legal right to refuse to cooperate, and they should not allow themselves either to be intimidated or harassed because of their refusal.

Neil Addison is a Barrister in practice in the North West and is the author of the legal text book "Religious Discrimination and Hatred Law" published by Routledge Cavendish. A practicing Catholic he also runs the Thomas More Legal Centre www.thomasmorelegal.org.uk which is a legal charity that provides legal advice and assistance in cases involving religious freedom, freedom of conscience and religious discrimination. He recently successfully assisted a trainee Doctor who was being pressurised over his refusal to arrange Abortions.