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Commentary: the scope of the conscience-based exemption in section 4(1) of the Abortion Act 1967 : Doogan and Wood v NHS Greater Glasgow and Clyde Health Board [2013] CSIH 36

Neal, Mary (2014) Commentary: the scope of the conscience-based exemption in section 4(1) of the Abortion Act 1967 : Doogan and Wood v NHS Greater Glasgow and Clyde Health Board [2013] CSIH 36. Medical Law Review. ISSN 0967-0742

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Abstract

Doogan is a judgment of the Inner House of the Scottish Court of Session in an action brought by two midwives (‘petitioners’ at first instance and ‘reclaimers’ on appeal) for judicial review of a decision by Greater Glasgow and Clyde Health Board (‘respondents’). At issue in the litigation was the scope of the conscience-based exemption contained in section 4(1) of the Abortion Act 1967, which included consideration of where the burden of managing the exemption should fall. The court of first instance (Outer House) had held that section 4(1), which exempts people with a conscientious objection from having to ‘participate in any treatment authorised by this Act’, ought to be read in light of section 1, which was the authorising provision. On the analysis adopted by the Outer House, any activity which was not unlawful before the 1967 Act came into force, and which therefore did not require to be authorised by section 1, was not covered by section 4(1). Roles which consisted of ‘supervision, delegation, and support’ were held not to fall within the scope of section 4(1) for this reason. The Inner House rejected the argument that the scope of the exemption in section 4(1) must be coextensive with the scope of the authorisation in section 1, and held that section 4(1) covered the ‘whole process of treatment’ given for the purpose of terminating a pregnancy. For the Inner House, therefore, ‘supervision, delegation, and support’ of staff directly involved in the abortion process did constitute the kind of ‘participation’ that a person could be exempted from under section 4(1). Moreover, the court took the view that the reclaimers' interpretation of section 4(1) was also to be preferred in terms of its likely management consequences. The appeal succeeded, and the Health Board has begun the process of appealing to the UK Supreme Court.