In 69% of the world’s developed countries, induced termination of pregnancy (abortion) is available on demand with an estimated 56 million abortions taking place in 2014 (Gutmacher Institute 2018). Due to a shortage of medical practitioners, it is to midwives that many countries are turning to provide safe abortion services. This is strongly supported by the World Health Organization (WHO) which recommends “mid-level professionals” such as midwives or nurses as the key providers in the provision of abortion services (World Health Organization 2012). Likewise, the International Confederation of Midwives’ (ICM) (2014) essential competencies for practice, include provision of safe abortion care.
While much of the work of the United Nations (UN), WHO and ICM focuses on developing countries, in England, Wales and Scotland legalized abortion, under the supervision of medical practitioners, is currently permitted up to the completion of week 24 of pregnancy when certain criteria are fulfilled (Abortion Act 1967). Care for women having abortions taking place after approximately the 16th week of pregnancy is mainly provided by midwives in the safe environment of a hospital labor ward. Section 4(1) of the 1967 Abortion Act provides that no one is under any duty to participate, contrary to his or her conscience, in any treatment authorized by the Act, although the exemption does not apply where treatment “is necessary to save the life or to prevent grave permanent injury to the physical or mental health of a pregnant woman” (Abortion Act, Section 4(2)). In practice, conscientious objection to abortion often becomes the center of acrimonious debate, with practitioners as well as academics polarized as to the rights and wrongs both of the procedure and of health care professionals’ objections to participating in the procedure.
This paper is not about the rights or wrongs of abortion, it is about conscientious objection to abortion. We will examine the legal case of two Scottish midwives, who exercised their perceived rights in accordance with Section 4(1) of the Abortion Act not to participate in the treatment of women undergoing abortions. We will use this case to assess how the legal authorities in Scotland and the UK decided what constitutes participation in an abortion and to what elements of procedures and care should one be able to conscientiously object. What delineates participating in abortion and the moral significance of different forms of proximity to the abortion act are contested issues, and part of the dispute was exactly what the midwives had a right to conscientiously object to, with the two sides disagreeing over what constituted such participation and hence what activities were covered by the Act. We also consider the weight given to religious views of the conscientious objectors—should objection based on such views be given more or less weight? The case of Doogan and Wood versus the Greater Glasgow and Clyde Health Board (GGCHB) is traced from its origins in one clinical area in Glasgow, Scotland, in 2005 through to the judgment of the UK Supreme Court on 17 December 2014. The paper focuses on the question raised in the hearings, “Is GGCHB entitled to require the midwives to delegate, supervise and support staff in the treatment of patients undergoing termination of pregnancy?”
As the two midwives concerned were practicing Roman Catholics, the laws of the Catholic Church, which prohibit abortion for any reason, are also considered in this paper. The Church has held a constant position on the sanctity of human life with Pope Pius XII (1951) over half a century ago, notably addressing Italian midwives specifically about their role in relation to abortion. At the same time as politicians in the UK were lobbying for or against the Abortion Bill, Pope Paul VI (1968) promulgated the Encyclical Humanae Vitae (HV), which makes clear the Church’s absolute veto on abortion.
The Code of Canon Law (CIC) (1983), building on the theological developments taking place from the Second Vatican Council onwards, lays out in two paragraphs what it considers to be some of the more serious delicts in relation to human life. In this, Canon 1398 states that “anyone who procures a completed abortion incurs a latae sentiae [automatic] excommunication” (Code of Cannon Law 1983). For those who adhere to the Roman Catholic faith, this canon is of extreme importance and was highly influential for the two midwives at the center of this case, who would have been excommunicated if they had participated in abortion-related care. This paper, while primarily examining the legal case, considers the possible positioning of the conscience clause in relation to published literature in an effort to seek the clarity that the legal judgement failed to provide.
There is a vast body of published literature on the subject of conscientious objection in relation to the provision of health services.Footnote 1 Abortion accounts for an estimated 80% of these articles but this literature does not appear to have been taken into account by the judges in this case as none of the academic debates were discussed or cited in any of the judgements. This article provides an overview of debates over: conscience and conscientious objection; conscientious objection to abortion; and midwifery and conscientious objection, before the case is presented.
Conscience and Conscientious Objection
Sulmasy (2008) makes the point that despite many debates on the issue of conscience, insufficient attention has been paid to understanding what conscience actually is and what its importance might be. This is not strictly the case; the philosophical concept of conscience has been debated for several millennia with Aristotle, in outlining his philosophy of a virtuous life, stating that a mature conscience allows persons who know what they are doing to act virtuously (Caston 2004). The Aristotelian conceptualization of conscience lacks the sense of humans as beings essentially being immersed in a struggle between good and evil. This later emerges vividly in the Judaeo-Christian worldview in which conscience is portrayed as the antithesis of a sin.
In the letters of Paul and several other places in the New Testament, as well as in some non-Christian writers of roughly the same period, the first occurrences of an explicit term depicting the concept of conscience are articulated. In a frequently cited passage Paul remarks that the Gentiles, though not possessing the Law, “can point to the substance of the Law engraved on their hearts – they can call a witness, that is, their own conscience—they have accusation and defense, that is, their own inner mental dialogue” (Romans 2:15).
It was, however, St. Thomas Aquinas [ca. (1270)] who developed the notion of conscience more fully concluding that conscience is not a power but an act as by its very nature it implies the relation of knowledge to individual cases. Such was to be the basis for a considerable body of philosophers’ works over successive centuries. In the 20th century and beyond, the “act” in Aquinas’ conceptualization, is commonly to be found in the health care setting. Wicclair (2000) made a link between conscience and integrity, including toleration of diversity, respect for autonomy, and respect for moral integrity as the grounds for protecting the notion of conscience. Wicclair concludes that carte blanche rights of conscientious objection should not be given but rather respected for the moral integrity of the physician is the best way forward. In this way, he argues “appeals to conscience can be understood as efforts to preserve or maintain moral integrity” (Wicclair 2000, p. 213). A decade later Wicclair’s position was supported by Antommaria (2010), who reasoned that conscience needs to be understood as synonymous with the maintenance of personal integrity. Any claims of conscientious objection thus derive from the importance of the value of integrity and subsequent moral agency underpinning them. Sulmasy’s view when applied to the majority of writers who analyze conscience in the healthcare context is relevant, as generally they do not clarify the connection between conscience, integrity and moral agency. Some, however, do: Weinstock (2014) for example, in discussing the influence of religion on conscience, comments that if a health professional’s right to conscientiously object is respected, “respect [is afforded to] the moral agency of those who hold reasonable dissenting views” (p. 12). In the same vein, he points out that a state which neither protected conscience nor permitted individuals to act according to the conclusions of their moral reasoning would fail to display appropriate respect for them as moral agents. In a later paper, Sulmasy (2017, p. 22) emphasizes the point that because a service, e.g., abortion, is legal, it does not compel a physician (or other health professionals) to participate in it. Instead, he argues that all professionals should be afforded a discretionary space and that general conditions of tolerance should prevail. Tolerance springs from humility, which he explained as “honest acknowledgement that one´s moral judgements are fallible” (p. 22).
Such debates among philosophers and ethicists may initially appear to be far removed from the realities of the present case. However, some writers bring this closer reflecting on the “rampant spread” of conscientious objection in health care settings (Zampas et al. 2013), while others challenge the rights of health care professionals to allow their private values to interfere with their work (Baker 2009). Neal (2015) counters these views, adopting the generally accepted view of conscience in bioethics posed by Wicclair (2000) and seeing the faculty of conscience as a fundamental feature of all areas of human endeavor, including professional practice. Neal thus asks how conscience can be protected. Contrary to the views of Zampas and other authors, she suggests that the apparent expansion of conscientious objection claims is based on poorly defined or even contradictory professional guidelines. Drawing on the legal literature, Neal proposes a need for research establishing working definitions and concludes that there are four criteria for a justifiable position of conscientious objection:
The position must be sincere (the “sincerity criterion”),
The health professional seeking the conscience-based exemption (CBE) must be able to articulate the basis of her position (the “articulation criterion”),
The position must not be intolerant and must not disrespect the conscientious position of others (the “tolerance/respect criterion”),
The belief at stake must be key or fundamental so that its violation poses a serious risk to the health professional’s moral integrity (the “integrity criterion”).
If these criteria are to be acceptable, Neal concludes that objectors’ duties need to include respectful behavior, avoidance of placing unnecessary burdens on colleagues and provision of emergency treatment.
Conscientious Objection to Abortion
While up to this point the discussion has focused on conscience generally and conscientious objection to the provision of treatment, in this section we now consider the literature in relation to the provision of abortion care. As indicated above, the current legal position throughout the world reflects a continuum from the free availability of abortion to its complete restriction (Center for Reproductive Rights 2013). Scotland fits into the second most liberal category.
The International Federation of Gynecology and Obstetrics (FIGO) (2006) published their own criteria for conscientious objection as:
To provide notice of professional services they decline to undertake on conscience grounds,
To refer patients for such services to other practitioners,
To provide such referrals timeously,
To provide emergency care where required.
The standards themselves, while brief, have been the subject of many commentaries and explanations, yet there is still overt polarization of the rights and responsibilities of health care providers in relation to the women’s expectations. Heino et al. (2013, p. 252) for example state that “European countries should critically assess the laws governing conscientious objection and its effects on women’s legal rights”, while conversely Pellegrino (2014) argues that a health professional’s religious values should never be placed in a secondary position to the health service’s requirements. Bowman and Schandevel (2012) concur saying that those who propose access at the expense of conscience rights could marginalize physicians who adhere to Hippocratic values. A “White Paper” which draws on the international literature from a number of disciplines attempts to sum up the issue and develop a road map for the future (Chavkin et al. 2013). The authors give clear acknowledgement to the lack of well carried out empirical research on the topic but conclude from their review that there is a growing trend towards refusal to provide certain reproductive health services, especially abortion. Acknowledging the difficulty of the situation, they recommend that a standard definition of conscientious objection should be developed together with accompanying obligations.
Midwifery and Conscientious Objection
Much of the literature previously discussed reflects the position of the medical profession. Westeson (2013) touched on the nature of the public health services provided in many countries, but the reality is that the roles of doctors and midwives differ within those systems. This can be seen in health care systems that are privatized, as once doctors have completed all their training to become consultants, they are free to provide the services that they wish and can decline to provide those to which they have an objection without having to provide any reasons. Midwives are in a different position who, together with nurses, have been classified as “mid-level health care providers” by the WHO (2012). They are almost always employees in a field which is dominated by medicine, regardless of the funding of the health care systems in which they work. This means that the imperative for a doctor with a conscientious objection to abortion is to refer promptly to another practitioner, midwives normally do not have the flexibility to do this.
Despite this limitation, the Royal College of Midwives’ (RCM) (1997, p. 2) guidance to its members states that a midwife may have to weigh up her own position in relation to the woman’s interests and refer her care to another midwife if she sees conflicts arising due to her conscience. It does not offer suggestions as to how this can be achieved in a busy ward. Moreover, the RCM have stated that “all midwives should be prepared to care for women before, during and after a termination in a maternity unit under obstetric care” (Royal College of Midwives 1997). This statement neither considers the flexibility issue introduced above nor gives consideration to whether midwives should have the right of refusal to participate in abortion-related care.
Although, due to its statutes and to the voluntary nature of its membership, the RCM’s advice is not binding, it nonetheless carries weight in the profession. The Nursing and Midwifery Council’s (NMC) (2015) legally binding Professional Code advises nurses and midwives to think very carefully before taking the step of conscientious objection.
In the academic literature, however, the voices of midwives are generally invisible (Fleming et al. 2018). Kane (2009), however, acknowledges the change in type of treatment from surgical to medical abortions. This considers that with medical abortions, the prescription is written by a medical practitioner, but the drug is administered by a nurse, midwife or the woman herself. As the woman then experiences labor she is cared for by midwives from about the 14th gestational week. The author comments that staff members are confronted with new duties which constitutes a new challenge for ward managers. None of the professional and legal guidance offers a substantive discussion of the expectations of midwives during the labor of women who are undergoing an abortion, which is a distressing time for all concerned.
McHale (2009) suggests that the time has come to revise public policy and not to permit nurses to opt out of procedures such as abortion stating “there is a danger in allowing ‘opt-out’ to be seen as an entitlement gradually through guidance, without the legitimacy and the boundaries of such an opt-out being subject to a thorough reconsideration” (p. 1262).
She offers no suggestion as to how such a radical change could be implemented in the light of the law, but she articulates the underlying views of many which have been under-expressed in the literature.
The only research article we found that specifically concerned midwives reports a qualitative study carried out in Bern, Switzerland (Cignacco 2002). This has some limitations, in that it does not provide a detailed analysis of the ethical viewpoints of the midwives, as a commentary on this research by Newell (2002, p. 192) points out: “we do not have much of an insight into the moral reasoning of these midwives, especially in terms of their wider professional and social dialectic”. The clear lack of midwives’ voices was noted in a systematic review of reasons for exercising conscientious objection to abortion by nurse and midwives (Fleming et al. 2018). None of the final articles included in the review was written by a midwife or a nurse, implying that others may still dictate the parameters of their practice. This is also the case in Sulmasy’s (2017) article, who considered tolerance and professional judgement, and argued that “discretionary space” for a physician is needed, while ignoring that there is also a need for a “discretionary space” for other HCP, such as, for example, midwives.
Presentation of the Case
The two midwives at the heart of the case both worked as senior midwives in the labor ward of the Southern General Hospital (SGH), Glasgow. Each of them had over 20 years’ experience in this clinical area. The dispute arose at a time during which new developments took place in both obstetrics and public health affecting many aspects of midwives’ clinical practice. As the result of a national review of duties and functions of midwives at all levels, new job descriptions for midwives throughout Scotland were issued in 2005. The job description for the senior labor ward midwives stated that “The post holder is responsible for providing clinical leadership and operational management for delivery of the midwifery service within labor wards and obstetric theatres” (Southern General Hospital 2005) (Table 1).
Prior to signing the job descriptions, the two midwives reconfirmed with their managers their right to conscientious objection to abortion. Of particular concern were three aspects of the new job descriptions which stated: “Provide clinical leadership, guidance and support to staff and be responsible for ensuring their supervision, training and education; direct/assist with the planning and delivery of clinical teaching of student midwives and nurses, qualified midwives and other learners and consult with medical staff in identifying and solving problems in patient care which lie outwith the scope of autonomous midwifery practice” (Southern General Hospital Glascow 2005). Each of these statements made it clear that the senior midwife on duty on the labor ward was expected to keep abreast of all that is happening with all the women in the ward during their shift and ensure good clinical care.
At the time of the changes, very few abortions were carried out in the labor ward but women’s health services in the city of Glasgow were restructured in 2007. By 2010, this resulted in approximately 160 late abortions, after the 16th week of pregnancy, taking place in the labor ward, a number that in subsequent years has steadily increased. During this procedure, which might last up to 24 h or more, a woman’s labor is induced and she requires one to one care from an experienced midwife. Due to such large numbers it was not possible for two such senior midwives to organize their rosters not to be on duty during the times at which women would be undergoing abortions. Numerous attempts were made by the midwives to resolve the issue informally and then formally by letter with their line managers, and while verbal support was expressed, a written response was slow to come. Finally, in 2009, 18 months after the issue was first raised with management, a letter was written by a manager which stated that their right to conscientious objection was upheld but “you must continue to provide care for women undergoing termination of pregnancy” (Letter from labor ward manager to Mary Dougan 2009). Due to its ambiguity, this did not offer a way forward, so legal advice was sought by both sides and a formal grievance procedure commenced.
The Midwives Formal Grievance
The midwives’ formal grievance, lodged on 8 September 2009, was not upheld, the employer’s response being that the 1967 Act did not confer on the petitioners any right to refuse to delegate, supervise and/or support staff in the provision of care to patients undergoing medical termination of pregnancy. The midwives appealed, citing direct involvement with the procedure through allocation of staff on each shift and the necessity for their supervision. This appeal was also rejected reiterating the same grounds. The midwives next appealed to the Health Board. In their petition, they explained that the matter of supervision and delegation referred to above was outstanding and required clarification. Dealing with the case were the GGCHB’s Senior Nurse and Chief Executive Officer with legal advice from the Board’s solicitor. GGCHB’s decision was issued on the 14th June 2011 by letter which advised:
It is the view of the Panel that delegating, supervising and/or supporting staff who are providing care to patients throughout the termination process does not constitute providing direct 1:1 care and having the ability to provide leadership within the department is crucial to the Roles and Responsibilities of a Band 7 midwife therefore this part of your grievance is not upheld. (Greater Glascow and Clyde Health Board 2011).