Conscientious objection in abortion provision

In July 2016 Life responded to the Parliamentary inquiry launched by Fiona Bruce into freedom of conscience in abortion provision. You can see our response below. The inquiry’s full report can be accessed here.

1. Do you think freedom of conscience for healthcare professionals in the provision of abortion is important? If so, why? If not, why not?

We believe the right to conscientious objection with regard to abortion provision is of the utmost importance.

The opposition to intentional killing is not an obscure principle held only by the religious few, but is rather the foundation of human justice in all civilised societies. The UK House of Lords’ Select Committee on Medical Ethics in 1994 stated that “the prohibition of intentional killing is the cornerstone of law and social relationships”. Therefore, a society which does not respect this foundational principle, or indeed forces and expects others to break it, can be described as neither ‘just’ nor ‘civilised’.

If the unborn child is a living human being from the moment of fertilisation, which science has long proven that it is, then any person involved in the process of intentionally ending that life will be morally complicit in that action. This is why freedom of conscience in abortion provision should be highly robust and all encompassing.

Last year, a 93-year-old man, who was assigned to confiscate the luggage of prisoners arriving at Auschwitz concentration camp in his capacity as an SS guard was sentenced to four years in prison for being complicit in the murder of 300,000 Hungarian Jews. Whilst it could be argued that confiscating luggage was far from the worst atrocity committed in Auschwitz, it was decided that due to the heinous nature of mass intentional killing, he was culpable despite not directly participating in the extermination of the jews (i.e. in the gas chambers).

This scenario demonstrates the principle that an individual is both morally and legally culpable for cooperating with wrongdoing even if only indirectly. It is therefore crucial that healthcare professionals can conscientiously object to participating in intentional ending of innocent human life, both directly and indirectly.

If this broad understanding of freedom of conscience is repeatedly shaved down over time, it becomes meaningless and ceases to exist in practice. The consequence of which will be that intelligent, compassionate and ethical individuals will either have to leave their posts or will be de facto barred from entering a profession where the key principle was once “above all, do no harm”.

2. Do you think that doctors with a conscientious objection to abortion have adequate protection to fully engage in their profession without compromising their freedom of conscience?

As it stands, 2013 General Medical Council (GMC) guidance states that doctors are not obliged to refer patients seeking abortion to other doctors who will do it but must: ‘make sure that the patient has enough information to arrange to see another doctor who does not hold the same objection’.

In 2013, however, Lady Hale went further in her Supreme Court judgment in the Doogan case. Regarding onward referral, the ruling stated: ‘…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 necessary corollary of the professional’s duty of care towards the patient’.

If this is to be implemented, and the GMC update their guidance in accordance with the Doogan judgment, then doctors with a conscientious objection to abortion will be unable to engage fully in their profession without compromising their freedom of conscience.

To refer a patient to another professional for an abortion only adds one degree of separation between the doctor and the act to which they are morally opposed, and completely contradicts their objection in the first place. For the doctor, their moral complicity is heightened by the fact that it is a virtual certainty that their patient will be provided with an abortion by a doctor who does not conscientiously object (98% of abortions occur under Ground C with absolutely no requirement for mental health assessment). To update GMC guidance in accordance with Lady Hale’s judgment would in effect prohibit anyone who believes in the value and dignity of the unborn from becoming GPs.

To force a doctor to refer in this circumstance demonstrates a complete lack of understanding of the nature of freedom of conscience and the reasons why doctors conscientiously object to abortion.

3. Do you think that other healthcare professionals with a conscientious objection to abortion have adequate protection to fully engage in their profession without compromising their freedom of conscience?

After the Doogan case, it can confidently be said that midwives with a conscientious objection to abortion do not have adequate legal protection to fully engage in their profession without compromising their freedom of conscience.

For someone who holds a conscientious objection to abortion, participating in a termination in any way would compromise their freedom of conscience. The outcome of the Doogan case is that midwives can only object to direct participation in an abortion, not indirect participation.

The Doogan ruling is reiterated in a new position statement on abortion from the Royal College of Midwives (RCM) who state that conscientious objection ‘should only apply to direct involvement in the procedure of terminating pregnancy’.

It is wildly unreasonable and inappropriate that in a supposedly progressive and liberal society, individuals should be forced to participate, either directly or indirectly, in a procedure which they object to because it directly and intentionally ends an innocent human life.

Article 9 of the European Convention of Human Rights provides that, subject to some narrowly defined exceptions, ‘everyone has the right to freedom of thought, conscience and religion’ and to ‘manifest his religion or belief, in worship, teaching, practice and observance’, whilst Article 14 prohibits discrimination, including the grounds of religion or belief.

4. Do you have personal experience of, or do you know of, examples of good practice where healthcare professionals do not wish to participate, directly or indirectly, in the provision of abortions? Good practice might have been shown by the healthcare professional, healthcare organisation, or both.

Unfortunately, whilst instances of good practice may exist, only examples of poor practice have been relayed to us.

5. Do you have personal experience of, or do you know of, examples of poor practice where healthcare professionals do not wish to participate, directly or indirectly, in the provision of abortions? Poor practice might have been shown by the healthcare professional, healthcare organisation, or both.

As a pro-life organisation, we have heard many accounts throughout the years from healthcare professionals (particularly midwives) who have held a conscientious objection to abortion. These personal experiences have highlighted the practical difficulties which have arisen as a result of morally objecting to abortion in a healthcare setting.

One of the most noticeable trends we have encountered was the ‘pro-life compensation’ – i.e. midwives having to ‘make up’ for their conscientious objection by taking on a greater workload, this sometimes took the form of additional night-shifts or being allocated more ‘distressing’ cases, e.g. stillbirths and difficult miscarriages. A midwife said that on one occasion she refused to participate in an abortion and as a result she had to take on five additional women when she was already overstretched.

Some midwives have also reported receiving hostility on the ward, one describing that she was ‘hated’ on account of her ‘difficult’ pro-life beliefs. Other midwives have described resentment from their managers, with one being told by her superior that there was ‘no such thing as conscientious objection’ and that she absolutely ‘must’ participate in abortions as a midwife.

We found that whilst some midwives who were confident and very vocal managed to avoid the procedure, others who were quietly uncomfortable with the idea of assisting in abortion felt ‘they didn’t have a leg to stand on’ and ending up ‘caving in’ under the weight of the pressure. One midwife told us that many of her colleagues would have liked to have exercised their freedom of conscience but were ‘too scared’ to do so.

A recently retired midwife explained that midwives were often asked for their position on abortion and their willingness to participate in the procedure when applying for their first midwifery post after their training. However she said, as time went on, this ‘vetting’ and conscientious objection ‘screening’ would occur at an earlier and earlier stage, with midwifery tutors now asking the question at interview when prospective students are applying for university. We have also heard from medical students who encountered the same problem when applying for medicine.

Other, more harrowing accounts, have come from midwives who have reluctantly had to help with the ‘after birth’ following an abortion, one of which had to stand by and watch an aborted baby being born alive whilst the midwives stood around and ‘prayed for it to die’.

The majority of accounts we have heard, therefore, demonstrate poor practice on the part of ward managers but also a negative culture towards conscientious objectors from the hospital and the rest of the ward.

6. In your view, are there any useful precedents for protection of freedom of conscience from other areas of the UK or from other jurisdictions?

Article 8 of the African Charter on Human and Peoples’ Rights specifies that “freedom of conscience, the profession and free practice of religion shall be guaranteed”, and further that “no one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms”.

7. Do you think legislation or professional guidance for healthcare professionals in the UK should be changed or developed? If so, in what way would you recommend?

The current conscience clause in the Abortion Act has been interpreted by the courts in such a way that it now has very little effect, both practically and legally speaking.

Life believes that the scope of the conscience clause should be widened so that clinicians are protected from the entire abortion procedure, i.e. so midwives are not forced to be involved in the chain of events leading up to an abortion and doctors are not obliged to refer their patients for assessment with a view to carrying out an abortion.

At a bare minimum, Articles 9 and 14 of the European Convention of Human Rights, prohibiting discrimination on the grounds of religion and belief, should be recognised as underpinning the protection provided by the conscience clause of the Abortion Act. However, if conscientious objection is to be taken seriously, an amendment must be made to strengthen section 4 of the Abortion Act or, failing that, a new Freedom of Conscience piece of legislation should be introduced to address the current situation.

With regards to an amendment to Section 4, the word ‘treatment’ could be changed to ‘activity’ as used in the Human Fertilisation and Embryology Act 1990. Section 38 of the HFE Act 1990 offers broader protection by using the word ‘activity’: ‘No person who has a conscientious objection to participating in any activity governed by this Act shall be under any duty, however arising, to do so.’

8. Any other comments?

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