Just over three years ago, two devout Catholic midwives lost an important claim in the courts. Disciplined for declining to make arrangements for abortions in a Glasgow maternity ward, they sued, saying that the Abortion Act’s conscience clause allowed them to refuse to participate in the procedure. The Supreme Court, combining an impressive capacity for casuistry with a matching unconcern for moral consistency, chose to define “participation” as meaning carrying out the abortion, and nothing more. Organising, managing and aiding other people to do it was quite different; there was no right to refuse to do it.
The point matters a great deal. Many NHS hospitals now put abortion and other controversial procedures out to tender (a matter itself a cause for concern, though not here), and so organisation rather than participation is increasingly what will be demanded from often unwilling staff.
A House of Lords initiative, Baroness O’Loan’s Conscientious Objection (Medical Activities) Bill, aims to reverse this. Covering doctors, nurses, midwives, pharmacists and other healthcare professionals, it allows conscientious objection to any activity involving three procedures of crucial importance: abortion, IVF and deliberate withdrawal of life-sustaining treatment. It explicitly eschews the Supreme Court’s curious distinction between doing evil and merely arranging for it, by extending the right of refusal to “supervision, delegation, planning or supporting of staff”. It also supplements the previous law by expressly preventing employers penalising those invoking the conscience clause.
This proposal has some chance, though not a high one, of receiving government time and becoming law. What is interesting, however, is the political opposition it has inspired. Leaving aside organisations with an obvious axe to grind, such as the British Pregnancy Advisory Service, three instances are worth noting.
We can start with the professional bodies. The British Medical Association has already briefed against the bill. It objects that allowing any latitude for conscience in abortion beyond actually administering treatment would in some unspecified way “have a serious adverse health consequence for women” and that any extension of the right to refuse to participate in procedures generally would, as they vaguely put it, “risk patient access to safe and timely care.”
We have not yet heard from the Royal College of Midwives: but their attitude may be gauged from their forceful intervention in the earlier Supreme Court proceedings to advocate the narrowest possible scope for individual conscience. It is hard to avoid the conclusion that the BMA and the RCM, both of which have incidentally called for complete decriminalisation of abortion, are worried at a proposal that might amount to a potential challenge to their view, to their control over their members, and to their right to pronounce exclusively on the interests served by their respective professions.
Secondly, it is significant, and slightly worrying, that discussion of the bill in the House of Lords divided largely on party lines. The Lib Dems and Labour (save in the latter case one commendable exception, Lord Anderson) were solidly against. Their overwhelming tendency, even when discussing a Bill aimed at increasing accommodation for personal beliefs, was to be unsympathetic to the whole idea. Despite grudging acceptance of some scope for conscientious objection, it was secular terms like equality, patient-centred care and patient choice, and the need for these to prevail over any such thing as personal beliefs, that informed most of what they said.
Thirdly, a recurring theme in the House of Lords, and also from outside bodies like the National Secular Society, was that the Bill was objectionable because it involved the privileging of religious belief. This is a curious argument. True, for Catholics the reason why a doctor will refuse to have any part in providing certain forms of treatment is precisely that a person must always obey the certain judgment of his conscience. But conscience is a natural faculty. Everyone, including secularists, is endowed with it. It is a little odd that legislation aimed at protecting just this ability should be regarded as somehow skewed towards religion: acts aimed at the termination of life, whether at the end of it or at the beginning, may equally well be unacceptable to a humanist, and if it is he is just as deserving of its protection.
Although this bill will probably be supported by most believers, those arguing for it will have to box clever. To the professions they need to say that coercing practitioners to do what they profoundly disapprove of does not conduce to good medicine; and to the advocates of patient-centred care, that this is perfectly possible without any such coercion. To those secularists who see religious subversion of secular values, there is a simple answer. It does not. This protection of freedom of conscience would benefit everyone, not just believers.