GGCHB’s counter appeal was heard by five judges at the UK Supreme Court, LondonFootnote 2 on 11 November 2014. In addition to the solicitors for the midwives and GGCHB, two interveners, the RCM and the British Pregnancy Advisory Service (BPAS), an abortion agency, were invited to make representation. The judges established that, “it will immediately be apparent that the question in this case, and the only question, is the meaning of the words ‘to participate in any treatment authorised by this Act to which he has a conscientious objection’” (Greater Glasgow Health Board (Appellant) v Doogan and Another (Respondents) 2014).
In their judgement, the changes in abortion provision were much more clearly articulated than in any of the previous hearings. Of particular interest to the judges was the change from surgical to medical termination of pregnancyFootnote 3 focusing on whether “treatment” in the Abortion Act was synonymous with “termination”. In a landmark case, it was conclusively ruled that “termination of pregnancy” could only mean the whole process of treatment and not one single part of it, thus midwives and other team members were considered participants.
It was noted that the midwives were both practicing Roman Catholics, which prohibits participation in abortion. However, the Supreme Court judges went further stating that, “They also believe that any involvement in the process of termination renders them accomplices to and culpable for that grave offence” (Greater Glasgow Health Board (Appellant) v Doogan and Another (Respondents) 2014). Although none of the three legal rulings refers directly to the Code of Canon Law, this is the first time that potential culpability was noted in relation to the Church’s Law. Again, however, none of the academic literature appears to have influenced the decision.
The evidence given by the RCM clearly stated that it believed conscientious objection should be restricted to the administration of the drugs to induce labor and should not include care of the woman during the subsequent labor or birth. The two midwives concerned subscribe to a different philosophy of care, i.e., that of continuity of care which they took to include the booking of women for the procedure and follow up care (Fleming 1998).
The judges returned to the meaning of the word “participate” and expressed the view that it is only applicable to the provision of hands on care and proceeded to test these against the 13 scenarios submitted initially by the midwives. In their findings, the judges ruled that only one of these points was covered fully by the conscience clause, that of being present to assist and support if medical intervention were required and some of the others might be covered in particular circumstances. The Health Board’s appeal was thus supported.
Concern has subsequently been expressed by both lawyers and ethicists that rather than being a landmark case the narrow interpretation of the conscience clause has not provided clear guidance for the future as there seemed to be no underpinning rationale given for its adoption (British Broadcasting Corporation 2014).
Relevant Legal Cases
The RCN Case
All three UK courts referred to the Royal College of Nursing (RCN) case from 1981, which requested clarity on the legality of nurses taking part in mid-trimester abortions which were carried out by medical means.Footnote 4 In its initial hearing, the RCN case stressed the technical nature of what in the judges’ views amounted to “performing the abortion”. Following appeal to the House of LordsFootnote 5 the five judges ruled that by extension the term “medical practitioners” should be extended to include nurses and midwives.
The main cause for dissention in the RCN case was exactly the same as in the present one, i.e., that of what actually constituted carrying out the abortion. Lord Keith’s words summed up the general judgement:
‘Termination of pregnancy’ is an expression commonly used, perhaps rather more by medical people than by laymen, to describe in neutral and unemotive terms the bringing about of an abortion. So used, it is capable of covering the whole process designed to lead to that result, and in my view it does so in the present context. Other provisions of the Act make it clear that termination of pregnancy is envisaged as being a process of treatment. (Royal College of Nursing v Department of Health and Social Security (DHSS) 1981)
Thus, it was clearly established that abortion was in UK law considered to be a process rather than a single act or combination of acts. However, what was not established by the 1981 case was the extent to which the participation applied. The two midwives in the present case considered themselves to have direct involvement but the list of scenarios presented by the midwives, was tested against the conscience clause without direct reference to the situation of a busy labor ward.
Croatian Case
In Croatia, a midwife with many years of experience, known to have a conscientious objection to participating in abortion, was assigned to the operating room to assist at a surgical abortion. She advised her manager that she could not do this when it was not a procedure necessary for saving the life of the woman. Disciplinary action was initiated against the midwife, who was first suspended, then ultimately dismissed from her position although her status as a conscientious objector had previously been respected for many years. The midwife sought recourse to a powerful religious group, the Vigilares, which offered its backing. A well planned and executed series of press releases then saw the case making national and international headlines. Despite this, the midwifery association offered no support to its longstanding member. However, the Vigilares wrote a letter to the Minister of Health (2013) concerning the case and asking for his intervention. A telephone call from the Minister to the hospital’s Medical Director saw her reinstated although with fewer responsibilities.
Swedish Case
The other related case in Europe is currently ongoing. It involves a Swedish newly qualified midwife, who having been offered a position had it rescinded when her stance against abortion became known. After four unsuccessful attempts to gain a post as a midwife, she sought recourse in law, notifying the County Council of discrimination against her because of her religious beliefs. The Council and later the Discrimination Ombudsman found against her. Sweden, unlike most other European countries, does not have a law protecting workers’ conscientious objection and the reason given for rejecting the claim was that she was unable to fulfil the role of a midwife (Grimmark v Landstinget i Jönköpings Län 2014).
The midwife, with the backing of the international organization “Alliance Defending Freedom,” then submitted her case to the District Court of Jönköping where her lawyers contend that this is part of an emerging human rights’ problem in Sweden (Nordström 2014). The District Court judgement ruled against the midwife on the grounds that carrying out abortions was a necessary part of Swedish midwives' duties and thus she could not have suffered discrimination. She was, however, given leave to appeal and her case is currently awaiting judgement in the European Court of Human Rights.
While showing general consistency, both the above cases concern midwives providing hands on care throughout their shifts. GGCHB’s argument, conversely, is that the two midwives concerned are removed from the direct care provision and that the conscience clause therefore does not apply to them. The reality falls in between these two possibilities in that the midwives do not provide the direct care but could be called on to do so at any time during their shifts.
Secondary Legislation
Professional Legislation
All midwives in the UK are required by law to register with the Nursing and Midwifery Council (NMC). According to its statutes, the NMC’s primary purpose is to protect the public. With regard to the quality of practice, standards, which are binding upon practitioners, have been implemented in a professional code (Nursing and Midwifery Council 2015) although the relevant version for the two midwives in the present case is that from 2008.
The Code of the NMC is clear about midwives’ duties of care to their patients. This was introduced in a document specifically on the topic of conscientious objection (Nursing and Midwifery Council 2013) after the RCN case. In this, the NMC spells out the need for careful thought before taking such a step and places accountability for any decisions related to conscientious objection in the hands of individual practitioners. This is in total contrast to the Religious Freedom Restoration Acts (1993) throughout the United States, which state that no government entity may substantially burden anyone’s exercising of their religion. The most recent edition of the NMC’s Code now includes conscientious objection thereby changing its status from advisory to obligatory.
The RCM, which as a professional body and trade union, might be expected to challenge government entities such as the NMC, offered its members no support, instead giving evidence supporting the Health Board in all three court hearings and drawing upon the Internaltional Confederation of Midwives (ICM) (2013) which lists abortion care as one of the seven essential competence domains of midwives.
The RCM also stated in the Supreme Court that it believed that abortion care only included administration of the abortifacient drugs and subsequent care was termed “ordinary and pastoral nursing care” (Greater Glascow and Clyde Health Board (Appellant) v Doogan and Another (Respondants) 2014). While this is consistent with previous position statements from the RCM it appears to be against the principles they profess with regard to midwifery care during the intrapartum process and to the judgement in the RCN case. There is no clarification of the phrase “ordinary nursing and pastoral care” and at this time when midwifery organizations including the RCM and ICM are very clearly stating their position that midwives are not nurses and that their remit is to provide continuity of midwifery care this appears to be a somewhat contradictory statement.
Canon Law
A further legislative framework that was relevant to the Glasgow midwives is that of the Catholic Church (Code of Cannon Law 1983). As the midwives’ objection was based upon their beliefs held as practicing Catholics, it is clear that Church legislation is also binding upon the two midwives. Yet, in the two cases in the Scottish courts, this was not raised and in the Supreme Court hearing, while alluded to, it was not afforded any in depth analysis.
As indicated in the introduction, the Roman Catholic Church is completely against abortion, focusing on the sanctity of life. The Catechism of the Catholic Church (CCC) (The Holy See 2000: 2270) classifies abortion as “intentional homicide” reiterating that “human life must be respected and protected absolutely from the moment of conception”.
In the present case, the judges in each of the three courts acknowledged that the midwives were Roman Catholic and thus abortion was contrary to their beliefs. However, following this acknowledgement, the point was not taken further and they were not openly supported by the Bishops’ Conference of Scotland, which is the Roman Catholic Church’s highest decision making body in Scotland. Neither did the Code of Canon Law, just as binding on all Roman Catholics as the NMC’s code of professional conduct is upon all midwives, receive further discussion. The tension between canon and civil law thus becomes immediately evident.
The Code of Canon Law canon 1398, however, neither defines abortion nor the term “procures” but merely refers to “latae sententiae” excommunication for one who procures an abortion. Thus, as soon as the abortion is procured, the penalty is effective. Such penalties, however, are difficult to control, especially as they should be judged by the persons themselves who commit the offence.
As acknowledged by Sanchis (2004), the latae sententiae penalty has been retained in the Code on only a few occasions and this is primarily to illustrate the gravity of the offence. CCC: 2272 uses the word “cooperation” in regard to abortion as constituting a “grave offence” and the next paragraph points out that the right of every innocent human to life is a “constitutive element of civil society and its legislation” (The Holy See 2000). However, such a right does not apply in civil law to unborn children, as the unborn child is not considered a person and therefore has no legal rights. Despite this, the penalty in the Catholic Church’s law remains that of that of latae sententiae excommunication.
As with the ambiguity in the present case surrounding the nature of the word “participate”, canon 1398 introduces two words which may also assume differing meanings, those of “completed abortion”. Here, the question of relevance is “what completes the abortion?” At the time of its promulgation with very few exceptions, the completed abortion could only be achieved by the surgical procedure of dilation of the pregnant woman’s cervix and manual removal of the baby from the uterus. However, in present times, while the administration of the abortifacient drugs will ultimately induce labor if given in sufficient quantities, it does not complete the abortion. Only the conclusion of the physiological process of labor with the birth of the baby and expulsion of the placenta will complete the process (Rankin 2017).
Such a scenario paints an opposing picture to that discussed in the preceding section where the RCM supported the hypothesis that conscientious objection should only apply to the administering of the medication. If the physiological hypothesis is accepted then unless medical intervention is required it would normally be the attending midwife who completes the abortion. Indeed, in some areas, to avoid confusion or culpability, the tasks are routinely divided up with one person administering the drugs and another supervising the birth process.
In referring to such possibilities, Green (2000, p. 1603) discusses the potential extent of those involved in procuring abortion. In this, he refers to canon 1329 §2 in which “accomplices” to a delict should also incur sentences “if without their assistance, the delict would not have been committed”. Pérez-Madrid (2004), however, makes the stronger point that the word “procure” means to perform or cooperate in the act of abortion, which must be carried out “with malicious intent”. Marazoa (2004) suggests that as canon 1398 is written in the singular and does not apply to the mother, recourse must be made to canon 1329. In one way, this reasoning is now dated as with possibilities of purchasing the abortifacient drug known as “the morning after pill” without prescription the “mother” may be the only person involved.
Marazoa discusses first the notion of “co-delinquency” suggesting that this term applies to physical persons who cooperate in a “single delinquent action”. It also, unlike the argument of the RCM, does not assume that a single offence can necessarily be broken up into different parts although it may have many perpetrators. She claims the most important issue is that of unity of purpose; in this case, the procuring of a completed abortion. This, she argues, has both objective and subjective elements. The objective element involves only the offence, not what might follow it, thus if this argument were to hold, a midwife providing post abortion counselling would not be considered a co-delinquent in the offence but one who provided the “ordinary and pastoral care” during the woman’s labor would be considered a co-delinquent. The subjective element of the argument is that all those involved must agree that their intention is to execute the same action.
Marazoa next introduces the forms of cooperation as total or partial. As discussed above, given the time between drug administration and the commencement of labor as well as the length of labor itself, it would be extremely difficult to say that anyone totally cooperated in abortion and so could be named as a “co-author”. It is more common amongst midwives that their participation would be considered as partial. How this is then evaluated is by considering whether the activity they carried out was necessary for the abortion to proceed or whether it would have proceeded anyway without their participation. Technically, once labor starts, an abortion could proceed with the woman unaccompanied by any health professionals. This is the situation, however, that the Abortion Act sought to overcome and against which organizations such as the WHO are now campaigning as it leads to many unnecessary maternal deaths.
Thus, with abortion being a process rather than a single act, it is not immediately clear as to whether even midwives providing the direct care are co-authors or merely accomplices to the offence. However, for the two midwives in the current case, Marazoa’s treatment of the “levels” at which accomplices can be involved is extremely helpful, as what has clearly been established throughout the various court hearings is that there is no fixed definition of those who participate in the abortion. It may be argued, for example, that a midwife who is instructed by the senior midwife on duty to care for a woman “in early labor” but who is undergoing an abortion is less of an accomplice than the senior midwife if she is not in possession of all the facts.
As discussed above, the midwives involved were required to supervise less experienced colleagues who may have been heavily reliant on them for guidance and assistance (Feltham 2014). Additionally, it is these senior midwives who allocate the staff to patients and are by this very act accomplices to the act even if not carrying it through themselves. This issue was addressed by Coriden (1986) as abortion started to become more common and managers of facilities offering the service raised questions concerning their own role. Responding to these questions, he concluded that while serious moral responsibility existed in relation to ancillary staff and managers, they did not fall under the jurisdiction of canon 1398. However, “co-agents in the procuring of abortion are all those who conspire by common intention and at the same time physically participate in the effective action or procedure that effects the abortion” (Coriden 1986, p. 657). As the nature of their job demands the senior midwives’ involvement, they clearly are considered in canon law to be accomplices.