Abortion and Freedom of Conscience
Abortion and Conscientious Objection
Dr Daniel J. Hill,
Teaching Fellow in Philosophy,
Department of Philosophy,
University of Liverpool,
LIVERPOOL,
L69 7WY
Correspondence to:
Dr Daniel J. Hill
Department of Philosophy,
University of Liverpool,
LIVERPOOL,
L69 7WY
0151 794 2787 (Tel.)
0151 794 2789 (Fax)
(E-mail)
Running Title:
Abortion and Conscientious Objection
Keywords
Abortion conscience objection freedom law referral
Abstract
In this article I do not seek to discuss when, if ever, abortion is morally permissible. Rather I seek to analyse the precise legal status of the exemptions afforded under British law to those with a conscientious objection to abortion. I then argue that the legal status quo in Britain is not morally satisfactory, and that the law urgently needs to be changed.
The legal status quo
In Great Britain (but not Northern Ireland, where the law is still given by the Offences Against the Person Act 1861 (as interpreted by Rex v. Bourne[1]) and the Infant Life (Preservation) Act 1929), the law on abortion is set out in the Abortion Act 1967 (hereinafter ‘the Act’). The Act legalized some abortions, and it also afforded permission for conscientious objectors to opt out. The so-called ‘conscience clause’, Clause 4, is as follows:
4.
Conscientious objection to participation in treatment.
— (1) Subject to subsection (2) of this section, no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection:
Provided that in any legal proceedings the burden of proof of conscientious objection shall rest on the person claiming to rely on it.
(2) Nothing in subsection (1) of this section shall affect any duty to participate in treatment which is necessary to save the life or to prevent grave permanent injury to the physical or mental health of a pregnant woman.[2]
Participation
So, the current legal status in Britain is that nobody needs to ‘participate in any treatment’ to terminate a pregnancy if he or she has a conscientious objection and if the abortion is not necessary to save the mother’s life or to prevent grave permanent injury to her physical or mental health. Section 1(3) of the Act establishes that the treatment must take place in a hospital or another approved place, but the question arises as to what is meant by ‘participate’ in this treatment, and, in fact, this question has been considered by the Courts, in the case of Regina v. Salford Area Health Authority (Respondent) ex parte Janaway.[3] Mrs Janaway was a Roman Catholic, and worked as a receptionist for a General Practice. She was asked to type a letter referring a pregnant woman seeking an abortion to a consultant. Mrs Janaway refused to do this, and was dismissed from her post. She appealed unsuccessfully to a tribunal, and then went to the Courts seeking a judicial review of the tribunal’s decision against her, claiming the protection of the conscience clause in the Act. Her case went from the lower courts to the Court of Appeal, and thence to the House of Lords, where it was dismissed.
The argument put forward for Mrs Janaway went thus:
the acts attracting the protection afforded by section 4(1) [of the Act] are intended to be coextensive with those which are authorised by section 1(1) and which in the absence of that provision would be criminal. The criminal law about accessories treats one who aids and abets, counsels or procures a criminal act as liable to the same extent as a principal actor. In the absence of section 1(1) the applicant by typing a letter of referral would be counselling or procuring an abortion, or at least helping to do so, and subject to a possible defence on the principle of Rex v. Bourne [1939] 1 K.B. 687 would be criminally liable. Therefore any requirement to type such a letter is relieved, in the face of a conscientious objection, by section 4(1).3
The House of Lords rejected this argument; Lord Keith of Kinkel agreed with the view of Nolan J. and Balcombe L.J. in the lower courts that ‘participate in any treatment’ meant ‘actually taking part in treatment administered in a hospital or other approved place’, and said in response to the argument:
Although the word [‘participate’] is commonly used to describe the activities of accessories in the criminal law field, it is not a term of art there. It is in any event not being used in a criminal context in section 4(1). Ex hypothesi treatment for termination of a pregnancy under section 1 is not criminal. I do not consider that Parliament can reasonably have intended by its use to import all the technicalities of the criminal law about principal and accessory, which can on occasion raise very nice questions about whether someone is guilty as an accessory. Such niceties would be very difficult of solution for an ordinary health authority. If Parliament had intended the result contended for by the applicant, it could have procured it very clearly and easily by referring to participation “in anything authorised by this Act” instead of “in any treatment [so] authorised”.3
Lord Keith’s reasoning is here muddled: the fact that the Act states that some ‘treatment for termination of a pregnancy’ is not criminal does not show that we are not in ‘a criminal context’ – the whole point of the Act is to say that something is not criminal, but that in itself shows, surely, that we are in the ‘criminal context’. Secondly, the fact that ‘niceties’ about the meaning of ‘participate’ would be ‘very difficult of solution for an ordinary health authority’ scarcely shows that Parliament cannot ‘have intended by its use to import all the technicalities of the criminal law about principal and accessory’. It is one of the functions of the courts and lawyers to help ordinary health authorities here. Lord Keith’s final point is the most telling: he is right, of course, that ‘if Parliament had intended the result contended for by the applicant, it could have procured it very clearly and easily by referring to participation “in anything authorised by this Act” instead of “in any treatment [so] authorised”’ (emphasis added), but the fact that if Parliament had had a certain intention it could have put the point better does not show that it did in fact lack that intention.
Referrals
Let us grant that typing up a letter to a consultant does indeed not fall under what Parliament intended by ‘participate in any treatment’ for the termination of pregnancy. The question arises as to whether a GP’s referring a patient to the abortion clinic or to a consultant would itself be covered by the phrase ‘participate in any treatment’. Charles Foster has argued that it might well be, since such an act would be quite different from the mechanical act of merely typing up the letter.[4] Lord Keith said, of ‘the green form’ (form HSA1, now blue):
A certain amount of argument was addressed to the Abortion Regulations 1968 (S.I. 1968 No. 390), which inter alia set out the form of certificate, known as ‘the green form’, to be signed by two registered medical practitioners in pursuance of section 1(1)(a) of the Act, and to the position in relation to section 4(1) of practitioners who might be required to sign such a certificate. The regulations do not appear to contemplate that the signing of the certificate would form part of treatment for the termination of pregnancy, since regulation 3(2) provides:
Any certificate of opinion “shall be given before the commencement of the treatment for the termination of the pregnancy to which it relates.”.
It does not appear whether or not there are any circumstances under which a doctor might be under any legal duty to sign a green form, so as to place in difficulties one who had a conscientious objection to doing so. [...] I do not think it appropriate to express any opinion on the matter.3
This argument is very powerful, assuming that Parliament was consistent in its use of the term ‘treatment’ between the Regulations and the Act. It should be noted, however, that at the end Lord Keith explicitly declines to give his own opinion on whether the signing of the form is covered by the conscience clause, and hence leaves this issue open for subsequent legal decision.
The government has also expressed the opinion that ‘participate in any treatment’ does not cover the signing of the form/certificate by the GP. Lord Warner (then Minister of State at the Department of Health) in an answer to two written questions (HL1124 and HL1125, listed in reverse order) from Baroness Masham of Ilton said on 20 July 2005:
The House of Lords ruled in 1988 that this exemption [the conscience clause of the Act] does not extend to giving advice, performing the preparatory steps to arrange an abortion where the request meets legal requirements and undertaking administration connected with abortion procedures. Doctors with a conscientious objection to abortion should make their views known to the patient and enable the patient to see another doctor without delay if that is the patient’s wish. [5]
Caroline Flint (then Parliamentary Under-Secretary of State in the Department of Health) gave a word-for-word identical reply to two questions (10893 and 10894) from David Amess MP in the House of Commons on the following day.[6] It should be noted that this reply is not accurate: it is not the case that the House of Lords ruled in 1988 that the conscience clause did not extend to giving advice, etc. The House of Lords ruled on the precise case of Janaway, and, as we have seen above, Lord Keith expressly refrained from giving an opinion on the question of whether the GP’s action of signing the form/certificate would be covered by the conscience clause. It should be admitted, however, that the detailed reasoning (particularly the reference, noted above, to the Abortion Regulations 1968) in the Janaway case would likely be highly persuasive to a judge in a future case.
So, it would appear that the signing of the form/certificate is not covered – or would in future be held not to be covered – by the conscience clause. Is there, though, any duty on the GP to sign the form/certificate? The National Health Service (General Medical Services Contracts) Regulations 2004 state:
3. -(1) A contractor whose contract includes the provision of contraceptive services shall make available to all its patients who request such services the services described in sub-paragraph (2).
(2) The services referred to in sub-paragraph (1) are -
[…]
(e) the provision of advice and referral in cases of unplanned or unwanted pregnancy, including advice about the availability of free pregnancy testing in the practice area and, where appropriate,[i] where the contractor has a conscientious objection to the termination of pregnancy, prompt referral to another provider of primary medical services who does not have such conscientious objections;[7]
It will be noted that the Regulations here do not state that the GP has to sign the form sending the woman to a consultant or clinic, but it does say that if a ‘contractor’ (a general practice or individual general practitioner, for our purposes) has decided to offer contraceptive services, that contractor has to be prepared to refer a pregnant woman seeking an abortion on to another GP that does not have the conscientious objection. Although this has not yet been tested in court, it would seem likely from the foregoing that this referring on to another GP would be held not to be subject to the exemption for conscientious objection; it will be argued later that this limitation coupled with the statutory duty renders the whole provision for conscientious exemption grossly unsatisfactory. Of course, this applies only to those that have contracted to provide contraceptive services, and there is no necessity on a contractor to do so, though a general practice might contract to provide contraceptive services without every practitioner in the practice being willing so to do.
Further legal considerations
Although the judgment of the House of Lords in general constitutes the official legal position concerning the interpretation of legislation, it should be remembered that legislation is to be interpreted in conformity with the Human Rights Act 1998,[8] which implements into UK law the European Convention on Human Rights. It seems likely that Article 9 on freedom of thought, conscience, and religion is relevant here: the doctors are prevented from freely practising their religion or acting according to their conscience because of the state’s insistence that they refer on to other GPs patients seeking abortions.[9] The right to practise one’s religion or act according to one’s conscience is limited, however, by Section 2 of Article 9, which states:
Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.[10]
The limitations on the GP that we are considering are indeed prescribed by law, so the question is whether they are really necessary ‘in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others’. Evidence for the fact that the conscientious-objection exemptions are not necessary for public safety or for the protection of public order, health or morals, may be found not only in the fact that there are other signatories to the European Convention on Human Rights in which abortion is completely illegal, e.g. Malta,[11] but also in the fact that there are other jurisdictions in which the scope of participation is understood more widely, for example in case law, e.g. New Zealand,9 or, as in the case of Texas,9 by using in statute clauses such as ‘perform or participate, directly or indirectly’.[12] These jurisdictions do not seem to have grave problems with public safety, public order, health or morals. The key question is, therefore, whether the limitations on freedom are necessary for the protection of the right and freedom of the mother to have an abortion. I shall consider this shortly, but before passing on we should note that the Twelfth Report of the Joint Committee of the House of Commons and the House of Lords on Human Rights found fault with the proposed Assisted Dying for the Terminally Ill Bill[13] on the grounds of a possible conflict with the European Convention on Human Rights: