On 10th August, The Tablet reported that the two Roman Catholic midwives, Mary Doogan and Concepta Wood, had appealed the ruling in In Doogan & Anor, Re Judicial Review  ScotCS CSOH 32 (29 February 2012) in which it was held that they were not entitled under section 4(1) Abortion Act 1967 to refuse to delegate to, supervise or support staff on the labour ward directly involved with abortions and their rights under Article 9 ECHR (thought, conscience and religion) were not engaged so as to affect the interpretation of section 4(1).
It is expected that their appeal will be heard in January 2013.
The ruling in the ‘Catholic Midwives’ case has been examined by Frank Cranmer and elsewhere, including here and here. Cranmer notes ‘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. . . . . . . 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 actually take part in administering the treatment to procure it – and there was no indication that Parliament had intended the word in any wider sense.’
The judgement of the Court took into account the personal beliefs of the petitioners as Roman Catholics, [para. 8], and the teaching of the Roman Catholic Church, [para.48]. However, it did not refer to the law of the Catholic Church and the imposition of severe automatic sanctions. The absolute opposition of the Roman Catholic Church to abortion is reflected in its Canon Law, and in the 1983 Code, Canon 1398 is emphatic that:
‘A person who procures a completed abortion incurs a latae sententiae (i.e. automatic) excommunication’.
More problematic, however, is the position of ‘accomplices’ referred to in Canon 1329, §2:
‘Accomplices who are not named in the law or precept incur an a latae sententiae penalty attached to a delict if without their assistance the delict would have been committed, and the penalty is of such a nature that it can punish them’. Otherwise they can be punished by ferendae sententiae (after sentencing, i.e. non-automatic) penalties’
[New Commentary on the Code of Canon Law, Eds. J P Beal, J A Coriden and T J Green, (2000, Paulist Press, New York]
The interpretation of the term ‘accomplice’ has been addressed:
- In 1986, Coriden submitted an Advisory Opinion on the position of administrators of Hospital and clinics, [(1986) 46 Jurist 652 ]
- In 2010, a Sister of Mercy and the head of the Ethics Committee at a local Catholic hospital in Phoenix, incurred an excommunication when she concurred with the hospitals’ decision to abort the foetus of a gravely ill woman. The decision of the Bishop was severely criticized and declared ‘null and void’ by the prominent Catholic Canon Lawyer, Fr Ladislas Orsy, SJ, a view supported by Kevin O’Rourke, OP, a Professor of Bioethics.
- By the English Courts, (i.e. on the basis of secular criteria) in R v Salford Health Authority ex parte Janaway  UKHL 17 in the case of a general practitioner’s secretary who objected to typing a letter referring a patient who was seeking to terminate her pregnancy to a consultant. Lady Smith observed [para. 79] ‘their Lordships were not persuaded to interpret the word ‘participate’ so as to cover all those involved in the chain of causation.’
Unlike Church of England legislation which is part of English law, there is no recognition of that associated with the Roman Catholic or other Churches. Whereas the actual consequences of an application of ‘religious law’, i.e. excommunication, are a fact that a court might take into consideration without becoming too involved within considerations of belief, the potential consequences are more problematic to a court.
In some cases, no appropriate guidance is given to the court and misconceptions arise, for example in the case of C (A Child), Re  EW Misc 15 (CC) (11 May 2012) reported here, for which Hart notes:
‘Interestingly, no expert evidence was called by either side, other than rival letters from Rabbi and clergyman. The judge certainly attached importance to the fact that baptism was an introduction into the Church, as distinct from confirmation which did not usually occur before 16 at which point the person would become a full communicant member of the Church’.
One the other hand, even the intervention eminent churchmen may be unhelpful, for example Lord Carey’s witness statement in Gary McFarlane v Relate Avon Limited  EWCA Civ B1, which Professor Mark Hill, QC described in the Church Times as ‘not merely inappropriate: it was plainly wrong’.