A midwife’s right to choose?

A recent abortion case in Scotland raises questions on just how involved midwives are in procedures to which they may object. 

Recently a Scottish appellate court upheld the right of two midwives to “conscientiously object” to undertaking employment duties in a ward in which termination of pregnancies (TOPs) were performed. Their objections were based on their religious beliefs.

It is beyond the confines of this article to explore the moral arguments of such beliefs or stances, and defining the limits of conscientious objection. What is of interest is the proximity of the objector from the actual, direct acts that procure a successful TOP, and objectors who might be said to be removed from such actions, or have ancillary or indirect roles.

In 2005, two senior midwives were employed as labour ward coordinators in a Scottish hospital.

They were responsible for providing clinical leadership and operational management for the delivery of midwifery services within labour wards and an obstetric theatre.

This entailed daily management and leadership of the wards, such as supporting junior staff and effectively and efficiently deploying resources, human and otherwise. Direct patient care was undertaken by midwives who they line-managed.

Prior to their employment, medical TOPs had mostly been undertaken in the gynaecological ward, for which the two midwives did not have responsibility. But from 2007, all terminations were done in the labour ward, which coincided with a noticeable increase in their number.

At the time of recruitment, it was conceded by the hospital, both midwives had made their conscientious objection to taking part in TOPs known, and until 2007 this had been respected and accommodated within their employment duties. But in 2007, the changes meant patients undergoing TOPs were cared for in the labour ward, where the midwives worked as managers/coordinators. The midwives said their stance only became an issue at that point.

The midwives challenged whether the hospital was entitled to require them to delegate, supervise and support staff in the treatment of patients undergoing termination of pregnancy. In response, the hospital argued that the two midwives were too removed and were using the “horseshoe nail” argument: that they were simply one part of the process.

The hospital said that the broad interpretation of “participating” in TOPs, as advanced by the midwives, would lead to a ludicrous extension of responsibility: for instance, in order to function, labour wards require cleaners, deliverers of supplies, porters and the like – some of whom would probably share the midwives’ beliefs about the immorality of TOPs. By the midwives’ logic, the hospital argued, ward cleaners would be within their rights under the Abortion Act to refuse to mop any labour ward where TOPs had taken place, as they would be in a very broad sense “facilitating” an abortion.

The original judge at the judicial review, rejected the midwives’ horseshoe-nail interpretation of “participation” as contained in the Abortion Act. She said that its ordinary meaning connotes “taking part in” and therefore does not cover those who, though casually connected, do not take part in the objectionable activity – in this case administering actual treatment that terminates the pregnancy.

Accordingly, the judge held that the delegation, supervision and support of staff engaged in TOPs was not “participating in treatment” under the Abortion Act, and therefore did not activate a right of conscientious objection.

In ruling against the midwives, the judge said, “Nothing they have to do as part of their duties terminates a woman’s pregnancy... [T]hey are sufficiently removed from direct involvement as ... to afford appropriate respect for and accommodation of their beliefs.”

Unsurprisingly this decision caused heated debate, and the midwives appealed.

On appeal, the midwives argued that as part of a team, their right to conscientious objection extended to the whole (emphasis added) of their duties except for an obligation to undertake lifesaving measures. Further, as a matter of legal reasoning the right to conscientious objection was intended to apply to the whole team whose involvement was necessary to achieve the successful outcome.

In further support of their claim, the midwives argued that they had let the hospital know of their objection in advance, and hence there was an obligation on the hospital to manage staff so as to respect the right of “conscientious objecting employees”. As the midwives made their views clear to the hospital from the commencement of employment, there was no “ambush” based on their beliefs in 2007 and, hence, no unforeseen burden was being created by the midwives.

Finally they argued that “the dividing line” over what was exempt ought to be an individual’s conscience and not a bureaucrat saying what the roles and duties are in relation to the literal meaning of “participation” in a TOP.

The hospital argued that the midwives “only” had responsibility of a managerial, supervisory or support nature, as opposed to direct contact, nursing care and/or relationship with actions which directly facilitated the TOP and hence did not trigger their right to a conscientious objection in undertaking their assigned roles and tasks. In other words, their assigned actions were too removed from the procurement of a TOP.

The appellant court judges overturned the trial judge’s ruling. The court stated, “[T]he administrative convenience of the [hospital] is irrelevant because the right is a balance between facilitating abortion while respecting the genuine conscientious objection of medical, nursing and ancillary staff… [I]n our view the right of conscientious objection extends not only to the actual medical or surgical termination but to the whole process of treatment given for that purpose.”

The appeal judges ruled that the two midwives were entitled to conscientiously object as a result of being assigned roles and duties to delegate, supervise or support staff involved in TOPs as this was to “participate in treatment” involved in TOPs. “In our view the right of conscientious objection extends not only to the actual medical or surgical termination but to the whole process of treatment given for that purpose.”

This judgment makes it clear to Scottish hospital managers that they must recognise the legal rights of midwives involved in TOPs, and that treatment extends beyond those who are directly involved.

Interestingly, where would Australian courts draw or define the line of what roles and duties constitute “participating” in TOPs? Would any such legal line be respected or acceptable to the moral free will of all, or any, midwives in any event?

I’ll leave you with the words of a traditional proverb:

For want of a nail the shoe was lost.
For want of a shoe the horse was lost.
For want of a horse the rider was lost.
For want of a rider the message was lost.
For want of a message the battle was lost.
For want of a battle the kingdom was lost.
And all for the want of a horseshoe nail.

Scott Trueman is a lecturer in the School of Nursing, Midwifery and Nutrition at James Cook University.

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