Scotland—conscientious objection case

Previous Ethics briefings1 highlighted the case of two senior midwives employed by Greater Glasgow & Clyde Health Board. The midwives, both practising Roman Catholics, argued that they should be able to conscientiously object to the delegation, supervision and support of staff involved with abortions under the conscientious objection clause of the Abortion Act 1967.

The Abortion Act 1967 (as amended) enables healthcare professionals to conscientiously object to ‘participate in any treatment’ permitted by the Act, except where the treatment is necessary to save the life or prevent grave permanent injury to the health of the pregnant woman. The burden of proof of conscientious objection rests on the person claiming it. The case hinged, in part, on what is considered ‘participation’ and ‘treatment’ under the Act.

The case has taken a number of years to resolve. The midwives initiated a formal grievance procedure in 2010 but this was rejected. They then took their case to court. The midwives originally lost their case at the Scottish Court of Session in February 20122 but then won on appeal in April 2013.3 Greater Glasgow & Clyde Health Board then went on to appeal this decision to the Supreme Court.

In December 2014 the Supreme Court ruled against the midwives’ broad interpretation of the conscientious objection clause. Lady Hale, deputy president of the Supreme Court, noted that “‘Participate’ in my view means taking part in a ‘hands-on’ capacity”.4 It was her view that a narrow meaning of the term ‘participate’ was intended when parliament passed the Abortion Act 1967. Lady Hale went on to say “it is a feature of conscience clauses generally within the healthcare profession that the conscientious objector be under an obligation to refer the case to a professional who does not share that objection. This is a …