In Doogan & Anor, Re Judicial Review [2012] ScotCS CSOH 32 (29 February 2012) the petitioners, Mary Doogan and Concepta Wood, were midwifery sisters at the Glasgow Southern General Hospital. As practising Roman Catholics they objected to participating in abortion and their right of conscientious objection was implied into their contracts by section 4(1) Abortion Act 1967, which states that “… no person shall be under any duty … to participate in any treatment authorised by this Act to which he has a conscientious objection”.

Their job-descriptions described them as “responsible for providing clinical leadership and operational management for delivery of the midwifery service within labour ward and obstetric theatre” and they were line-managers for more junior midwives and for the nursing auxiliaries. All medical terminations of pregnancy were moved to the labour ward at Glasgow Southern in 2007; and they argued that prior to that date they had not been called upon to delegate, supervise or support staff engaged in the treatment or care of patients undergoing termination – which the respondents denied.

The issue before the court was whether section 4(1) entitled Ms Doogan and Ms Wood to refuse to delegate to, supervise or support staff on the labour ward directly involved with abortions and whether their rights under Article 9 ECHR (thought, conscience and religion) were engaged so as to affect the interpretation of section 4(1).

The Lord Ordinary [Lady Smith] took the view that the key words in section 4(1) were “participate” and “treatment” and that “participate” was be understood in its ordinary sense, not in a technical one: R v Salford Health Authority ex parte Janaway [1989] UKHL 17 followed.

As to Article 9, it “… encapsulates a duality of rights, namely the freedom to hold a belief and the freedom to ‘manifest’ it. The former is absolute. The latter is qualified” (para 48). It was not disputed that the petitioners’ Article 9 rights had been interfered with; however, Lady Smith was of the view that when considering whether or not the right to manifest was materially interfered with, all the circumstances had to be examined and the individual asserting the right “may need to take his specific situation into account” (para 49). In addition, Strasbourg had been generally reluctant to oblige employers to take positive steps to accommodate employees’ wishes to manifest religious beliefs in a particular manner.

As to “treatment”, its ordinary meaning implied “taking part in” and did not cover those who, though causally connected with termination of pregnancy, did not actully take part in administering the treatment to procure it – and there was no indication that Parliament had intended the word in any wider sense.

Article 9(1) did not require that people should be allowed to manifest their religion in any manner of their choosing; moreover, nothing the petitioners did as part of their duties terminated a pregnancy. They were sufficiently removed from direct involvement as to afford appropriate respect for and accommodation of their beliefs and they had knowingly accepted that those duties were to be part of their job. Their Article 9 rights were not being interfered with: first, because their right of conscientious objection was not unqualified, secondly, because they had in fact agreed to become Labour Ward Co-ordinators though they now objected to content of those posts and, thirdly, because in any event their duties did not in fact require them to provide any treatment to terminate a pregnancy directly. The petition was dismissed and the petitioners’ minute refused.

Comment: It is at least arguable that the facts in Janaway, which was about a Roman Catholic secretary/receptionist who refused on grounds of conscience to type a letter referring a patient for an appointment with a consultant for an opinion as to whether or not her pregnancy should be terminated, were qualitatively different from those in Doogan. Typing a letter for an appointment for a possible termination is a rather different matter from operational management responsibility for delivery of a midwifery service that includes termination in its functions – certainly from the point of view of the petitioners. But it’s the “specific situation rule” again.

For a longer analysis, see Andrew Tickell’s guest post on the UK Human Rights blog.