Judge Lady Dorrian
Two Catholic midwives have won the right to refuse to help with any abortion procedures or planning after an appeal court ruling in Scotland today.
Judges in Edinburgh ruled that Mary Doogan, 58, and Concepta Wood, 52, who worked as labour ward co-ordinators in Glasgow, had a legal right to consciously object to helping with abortions in any way.
The ruling, which could yet be appealed by Greater Glasgow and Clyde health board, may have wide ramifications for the NHS and for other health staff who oppose abortions on religious grounds.
Judge Lady Dorrian said today: "In our view the right of conscientious objection extends not only to the actual medical or surgical termination but to the whole process of treatment given for that purpose. The right is given because it is recognised that the process of abortion is felt by many people to be morally repugnant.”
The midwives had lost a previous case against NHS Greater Glasgow and Clyde after a judge ruled that working on ward planning or delegating staff did not involve actually carrying out abortions. Giving judgment in a judicial review last year, Lady Smith said: "Nothing they have to do as part of their duties terminates a woman's pregnancy. They are sufficiently removed from direct involvement as, it seems to me, to afford appropriate respect for and accommodation of their beliefs."
But the court of appeal in Edinburgh today overturned that ruling and said the Abortion Act 1967 gave medical staff wide-ranging protection against taking part in abortions on religious and conscience grounds.
Lady Dorrian, sitting on the appeal with Lord Mackay of Drumadoon and Lord McEwan, said: "In our view the right of conscientious objection extends not only to the actual medical or surgical termination but to the whole process of treatment given for that purpose."
The midwives' lawyer, Gerry Moynihan QC, told the judges it was up to staff rather than their managers to decide what was morally or ethically objectionable to them. Their employers were saying that their
administrative convenience over-rode the midwives' right to conscience, he argued.
Moynihan said the right to object covered all their duties, with the exception of helping in life-saving treatments. There was clear legal authority that the right to conscientious objection extended to all the staff involved in preparing or planning for a procedure, he said.
"The administrative convenience of the health board is irrelevant because the right is a balance between facilitating abortion while respecting the genuine conscientious objection of medical, nursing and ancillary staff," he told the court.
In a brief statement, the health board said it would take more time to decide its next steps but would not comment further: "We note the outcome of the appeal and will be considering our options with our legal advisers over the next few days."
Archbishop Philip Tartaglia, president of the Bishops' Conference of Scotland, who is currently in Rome, said in the following statement:
"Today's decision by the Appeal Judges is a victory for freedom of conscience and for common sense. The midwives are to be commended for their courage and determination in standing up to an unjust requirement of the employer that they be involved in abortion procedures. As the judges state, the right of conscientious objection extends not only to the actual medical or surgical termination but to the whole abortion process.
"I hope that many pro-life health professionals will take heart from this judgement and have the courage to express their own objections if and when they are asked to carry out tasks which are morally wrong and violate their conscience.
"Respect for workers' freedom of conscience is a hallmark of a civilised society."
Paul Tully, SPUC's general secretary, said: “Today’s verdict is very welcome and we congratulate Connie and Mary on their tenacity and deep sense of professionalism. We hope that the Health Board will abide by this verdict and enable life to return to normal for Connie and Mary. The result is a tremendous victory for these devoted and caring professional women. This outcome will be a great relief to all midwives, nurses and doctors who may be under pressure to supervise abortion procedures and who are wondering whether the law protects their right to opt out.
Mr Tully continued: “The difference this judgment makes is that hospital managers must recognise that the legal right to opt out of abortion goes beyond those who directly undertake abortions. For the sake of good morale and good relations with all members of staff, it is important that the Board move to re-establish normal working relations straight away. The mothers and babies depending on the Southern General Hospital deserve no
“Mary Doogan and Connie Wood deserve the fullest support and gratitude of their medical colleagues for resisting the pressure to give up their legal protections. It is important to recognise that their stand applies to people of all faiths and none: the right to refuse to participate in abortion is based on conscientious objection, whether religious or purely moral, so it applies to everyone", said Mr Tully.
“They are anxious to get back to normal after the protracted internal grievance procedure and legal action. This dispute has seriously disrupted their professional lives over the past four years and more”, concluded Mr Tully.
Connie Wood and Mary Doogan said in a statement:
"Connie and I are absolutely delighted with todays judgement from the Court of Session, which recognises and upholds our rights as labour ward midwifery sisters to withdraw from participating in any treatment that would result in medical termination of pregnancy.
In holding all life to be sacred from conception to natural death, as midwives we have always worked in the knowledge we have two lives to care for throughout labour; a mother and that of her unborn child.
Today's judgement is a welcome affirmation of the rights of all midwives to withdraw from a practice that would violate their conscience and which over time, would indeed debar many from entering what has always been a very rewarding and noble profession. It is with great relief we can now return to considerations that are all to do with child birth and midwifery practice and less to do with legal matters.
Lastly, we wish to thank the many individuals the length and breadth of Britain and, indeed, further afield, who have given us great help and support throughout the duration of our dispute with GG&CHB. Though too numerous to individually highlight, special mention has to be given to both sets of family, without whose support we could not have taken on this case, to SPUC and to our very talented legal team whose expertise and support we could not have done without. Thank you to each and everyone."