By: Dr Mary Neal, University of Strathclyde
Last month, following its Inquiry into Freedom of Conscience in Abortion Provision, the All-Party Parliamentary Pro-Life Group published its Report online. The Inquiry considered whether section 4(1) of the Abortion Act 1967 provides adequate protection for healthcare professionals whose consciences forbid participation in abortion. The Report made several recommendations, including: (1) that no professional with a conscientious objection to abortion should be required to refer a patient to another practitioner (i.e, the current GMC guidelines should be maintained for doctors and extended to cover other professions) and (2) that the government should explore the ‘feasibility’ of interpreting section 4(1) as protecting professionals against ‘indirect’ as well as ‘direct’ participation (the law’s current approach, following the Supreme Court’s judgment in Doogan, is to interpret section 4(1) as protecting against ‘direct’ participation only).
These recommendations have already been greeted with dismay by at least one commentator who sees the proposals as an attempt to obstruct the provision of lawful abortion altogether by making the process of obtaining abortion a ‘labyrinthine task’ for women. Logically, however, both referral and ‘indirect’ participation must be covered by any right of conscientious refusal, and the responsibility for ensuring that this does not obstruct access to lawful procedures belongs at an institutional level.
My research in this area has convinced me that protecting conscience rights within certain limits is absolutely vital in a morally-pluralistic society populated by morally-engaged individuals, and that in any case, the arguments against accommodating conscience just don’t stack up (together with a co-author, I explain all of this further in a forthcoming article in the Medical Law Review). In her recent blog on this site, Ann Furedi agrees there is a need to accommodate healthcare workers’ consciences, not only because it is better for women undergoing abortion not to encounter professionals who have been intimidated into participating (who would wish to be under the care of a healthcare worker who feels morally traumatised?), but also on the basis that respecting professionals by not forcing them to violate their deep moral convictions is the right and tolerant thing to do.
The purpose of any conscience right is to protect people from being drawn into moral responsibility for (what they regard as) serious immorality. Once we agree that conscience ought to be protected, it makes no sense to qualify the protection by requiring people to participate ‘indirectly’, or to facilitate the process by making referrals. Both of these types of involvement render a person morally responsible for the outcome (this is fairly obvious when we consider examples involving obvious wrongdoing), so requiring them undermines the very purpose of a conscience right – the goal of shielding people from moral responsibility.
As noted already, however, there is anxiety that allowing refusals in relation to referral and ‘indirect’ participation could mean delaying or even preventing women’s access to lawful abortion. This is, ultimately, speculation about an empirical question – we cannot be certain what the effect of interpreting the right to refuse in this way would be – but it seems fair to assume that if exemptions from referral/ indirect participation existed, some professionals would seek to exercise them (Doogan is an example). On the other hand, it can’t be assumed that all staff who object to participating directly would also object to participating indirectly, or to referring (even if logically, they should).
Meaningful protection for conscience means exemption from referral and indirect participation, but this needn’t mean women having to navigate a maze of dead-ends against a ticking clock. If it is anticipated that effective protection of conscience is likely to result in access problems, then the answer lies, as Furedi says, in “changing the ways in which services are organized, rather than forcing doctors to be involved in procedures to which they fundamentally object.”
Ultimately, as Furedi quite rightly points out, “provision of abortion is the responsibility of institutions not individuals. It’s the responsibility of the state, its health service and public hospitals to ensure that abortion is available where it is legal.” The Inner House of the Scottish Court of Session agreed, at the penultimate stage of the Doogan litigation, that the burden of managing the consequences of conscientious refusal ought to fall on the employer and not the employee. Relinquishing employment or being ineligible for promotion is far more burdensome for an individual than reorganising provision is for institutions which exist and are equipped precisely for the purpose of managing healthcare provision.
I agree with Furedi that there is a moral imperative for accommodating conscientious refusal. It’s not something to be tolerated grudgingly; on the contrary, it’s welcome evidence that our healthcare professionals are not mere functionaries who are prepared to park their supposed ‘commitments’ at the workplace door. At the same time, however, we are entitled to have certain expectations of those who exercise conscience rights.
A genuinely-held conscientious position is held because it is believed to be in accordance with the requirements of ethics. It seems perfectly reasonable, therefore, to facilitate only those conscience claims which meet basic ethical requirements, such as the requirement to treat others with kindness and respect. As a colleague and I have said elsewhere:
a genuinely ethical position cannot entail a lack of compassion or care. Good conscience never demands that a [healthcare worker] avoid feeding, toileting, comforting, listening, and other basic acts of care. Even if I regard the treatment a patient is receiving as immoral, it cannot be immoral for me to dry her tears if she is distressed, fetch her a glass of water if she is thirsty, or adjust her pillows if she is uncomfortable. It would be immoral not to do these things.
Recall, too, the concern about obstructing access to abortion. I have already argued that the purpose of allowing conscientious refusal is to protect individuals from responsibility for action they regard as immoral. Someone who conscientiously refuses to participate in abortion does so because of profound misgivings about the morality of abortion. She may also hold the view that the law ought to forbid or restrict abortion (though someone could well regard abortion as immoral, but take the view that it’s not the law’s business to forbid/restrict it). Even if someone regards abortion as immoral and wishes the law would restrict it, however (and leaving aside the complex spectrum of factors which may lead us to regard different cases of abortion differently from a moral and legal perspective), it takes yet another leap to arrive at the view that she is entitled to try to obstruct lawful access to abortion.
To exercise a conscience right in a way aimed at disrupting/obstructing access to abortion in general is an act of bad faith. Anyone who desires a less permissive abortion law has other ways of seeking to bring this about – voting, lobbying, campaigning, and so on – but the particular purpose of a conscience right is to protect individual healthcare workers. To deploy it as an act of sabotage would be a misuse, and where the right provides meaningful protection (i.e. covers referral and indirect as well as direct participation) and is made available on the basis of mutual good faith, it is difficult to see how the misuse could be morally-justified. (It would presumably also be politically counter-productive).
Fit-for-purpose conscience rights, properly managed, would bring important benefits for healthcare professionals and women alike. Healthcare professionals would benefit, of course, from being able to pursue their careers (which are, in many cases, vocations) without fear of pressure to violate their fundamental moral commitments. Women seeking and undergoing abortion could be assured of a pro-choice healthcare team, and the improved planning and co-ordination of abortion provision that would be necessary could also address other issues such as the inferior access already experienced by women living in rural areas of the UK.
There is an urgent need for good faith on all sides of the conscience debate. Healthcare providers have a moral obligation to make meaningful provision for conscientious refusal. The sooner they embrace this obligation and plan systematically for a meaningful accommodation, the better for all concerned. At the same time, those who exercise conscience rights must do so in a way that demonstrates good faith – in other words, the exercise of the right must itself be conscientious.