Equality legislation used to defend conscientious objection to abortion

John Smeaton*

Congratulations to the Thomas More Legal Centre who successfully backed two nurses when they refused to work in a weekly abortion clinic in their hospital. As a result of their representations, the hospital backed down without the matter going to court.

Last February I reported that the Society for the Protection of Unborn Children (SPUC) had successfully defended health professionals' right to conscientious objection in the high court. SPUC raised the issue in a case brought by the British Pregnancy Advisory Centre (BPAS) which had wanted to be allowed to give abortion drugs to women to take away and use elsewhere. BPAS lost their case. Mr Justice Supperstone, rejected the argument (relating to conscientious objection) put forward by the barrister for BPAS (the "Claimant") in these terms:

"Ms Lieven does not accept that the Claimant's interpretation of section 1 [treatment] of the Act is inconsistent with section 4 [conscientious objection] of the Act. Ms Gemma White, for the Society for the Protection of Unborn Children, intervening, submits that it is, as there will continue to be many situations in which medical professionals, in particular nurses and midwives, are asked to administer abortifacient drugs; if this claim is successful they will not be entitled to the protection of section 4 ... [BPAS' argument] is no answer, in my view, to Ms White's submission that Parliament clearly did not intend that an action which directly causes the termination of pregnancy should be outside the scope of section 4."

The two nurses backed by the Thomas More Legal Centre were employed at a hospital for ordinary nursing duties. They were then allocated to work once a week at an abortion clinic in the hospital. The abortion process did not involve surgical abortion but the increasingly common process of "early medical abortion" - which was also the subject of the BPAS case in which SPUC intervened earlier this year. It involves killing the unborn baby by means of a combination of drugs rather than surgery. Women are issued with the drug mifepristone followed some days later by administration of the drug misoprostol which then helps to expel the embryo from the uterus.

When they became aware that they were participating in abortion they told their management that they did not want to continue but were then told that they had no choice in the matter. One manager in fact commented "What would happen if we allowed all the Christian nurses to refuse?"

The nurses approached the hospital's Catholic chaplain who contacted the Thomas More Legal Centre (TMLC). From the facts it was clear that the hospital had not recognised or accepted that the nurses had a legal right to refuse to participate.

Early medical abortion has been held by the High Court in the BPAS case (above) to be an abortion procedure under the Abortion Act 1967 and as such the nurses had an absolute right to refuse to particpate under the conscientious objection provisions of section 4 of the Abortion Act. TMLC wrote to the hospital stating that the nurses were refusing to work in the clinic and quoting their rights under section 4 of the Abortion Act.

The letter also stated that their belief in the sanctity of life from conception onwards was a philosophical belief protected under the Equality Act and therefore any attempt to pressure them into participating in the abortion clinic or to suggest that their refusal would affect their career would be illegal under the Equality Act 2010.

According to the Thomas More Legal Centre, this particular interpretation of the Equality Act had never, to their knowledge, been argued before. However, since the courts had accepted that the philosphical belief in global warming is protected under equality legislation, TMLC could see no reason why belief that human life begins at conception should not be equally protected.

The hospital attempted to tell the nurses that they could be excused from actually administering the abortion inducing drugs but would otherwise have to work in the clinic. TMLC again wrote making it clear that this proposal was unacceptable because the nurses would still be morally complicit in abortion if they worked as nurses in the abortion clinic even if they did not actually administer the pills and again relying on section 4 of the Abortion Act and the Equality Act. The hospital eventually backed down and the nurses were allocated to other duties.

Neil Addison (pictured above), the national director of The Thomas More Legal Centre, says: "I feel privileged to have had the opportunity to represent these brave nurses. Taking the stand they did took immense moral courage and I am delighted that they have been successful."