12.19.14

“Participation” means “hands-on”: UK Supreme Court Further Defines Who Can Conscientiously Object in the Context of Abortion

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Just two days ago, on December 17, 2014, the United Kingdom’s Supreme Court ruled that two Catholic midwives did not have the right to conscientiously object to performing their supervisory duties in cases of abortion. As with many reproductive rights issues, the issue of conscientious objection in the context of abortion is highly polarizing. However, what is important to understand is that from a public health perspective, failing to set clear standards on who can conscientiously object and how can create serious obstacles in preventing maternal deaths, regardless of whether we are talking about a low-, middle-, or high-income country. For this reason, this long-awaited ruling has important implications on how the debate over conscientious objection and the protection of women’s lives and health will be shaped.

Source: BBC News

Source: BBC News

In the case, the U.K. Supreme Court overturned the Court of Session’s decision, which in turn, had overturned the lower court’s ruling that conscientious objection did not apply to the two midwives because they did not participate in the termination of the pregnancy.

The main issue in the case, therefore, has centered on what exactly constitutes “participation.” The Abortion Act of 1967 in the U.K. defines the circumstances under which the termination of pregnancy is legal and provides for the right to conscientiously object to “participate in treatment.” In interpreting the statute to define the scope of conscientious objection, the Supreme Court referenced the case Royal College of Nursing of the United Kingdom v Department of Health and Social Security and recalled that it established that “what is authorised by the Act is the whole course of medical treatment bringing about the ending of the pregnancy.” The Supreme Court held that “whole course” begins with “the administration of drugs designed to induce labour and normally ends with the ending of the pregnancy by delivery of the foetus, placenta and membrane.” The Court went on to establish that it would also “include the medical and nursing care which is connected with the process of undergoing labour and giving birth….” Therefore, those involved in the “whole course of medical treatment” could bring claims of conscientious objection under the Act.

However, the Court held that “participation” does “not cover things done before the course of treatment began” or even those performed in connection with the treatment after it has already begun that are “ancillary, administrative and managerial.” According to the Court, it is “unlikely” that Parliament had intended it to mean otherwise. On this, the Court explained that:

“Parliament will not have had in mind the hospital managers who decide to offer an abortion service, the administrators who decide how best that service can be organised within the hospital (for example, by assigning some terminations to the Labour Ward, some to the Fetal Medicine Unit and some to the Gynaecology Ward), the caterers who provide the patients with food, and the cleaners who provide them with a safe and hygienic environment. Yet all may be said in some way to be facilitating the carrying out of the treatment involved. The managerial and supervisory tasks carried out by the Labour Ward Co-ordinators are closer to these roles than they are to the role of providing the treatment which brings about the termination of the pregnancy. ‘Participate’ in my view means taking part in a ‘hands-on’ capacity.” (emphasis added). This last sentence is what makes this holding specifically significant.

This holding supports and reverberates the standard set out by yet another important ruling issued in 2009 by the Colombian Constitutional Court: T-388/09. Much like the midwives case, the Colombian Court provided greater guidance on who should be able to claim the right to conscientiously object: only those who are directly involved in the procedure. Therefore, for example, judicial officers are not entitled to claim conscientious objection. What is more, the Court also held that individuals and not institutions (such as hospitals) are the only ones entitled to the right and also established that health care providers who claim conscientious objection must refer the patient to another provider who is willing and available to perform the abortion. If no alternative provider is available, the objecting provider may no longer object to perform the service.

What these cases demonstrate is that balancing the right to conscientious objection and the reproductive health rights of women is an issue that necessitates greater and clearer standards. It is encouraging that through such cases, courts are providing better guidance and are importantly taking into account the implications that the right to conscientious objection can have on the health and lives of women. It is a problem that is not limited to a single community or country; it is a global issue that must be addressed in a concerted manner. In the sharing of experiences across countries and regions, greater advances can be made in this area.

Note: In October 2014, the O’Neill Institute for National and Global Health Law and Women’s Link Worldwide launched their joint publication “Conscientious Objection and Abortion: A Global Perspective on the Colombian Experience,” which features comparative regional analyses by experts across the globe on balancing the right to conscientious objection and women’s reproductive health and rights. The publication is available in both English and Spanish.

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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

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