Guest Post by John Olusegun Adenitire
It seems that if you are a nurse you cannot be a good Catholic. Or, better: if you want to work as a nurse then you might have to give up some of your religious beliefs. A relatively recent decision of the UK Supreme Court, the highest court in the country, seems to suggest so. In a legal decision that made it into the general press (see here), the Supreme Court decided that two Catholic midwives could not refuse to undertake administrative and supervisory tasks connected to the provision of abortions.
To be sure, no one asked the nurses to directly assist in the provision of abortions. The Abortion Act 1967 says that “No person shall be under any duty … to participate in any treatment authorised by this Act to which he has a conscientious objection.” The Nurses argued that this provision of the Act should be understood widely. Not only should they be allowed to refuse to directly assist in abortion services: they should also be entitled to refuse to undertake managerial and supervisory tasks if those were linked to abortion services. The nurses’ employer was not impressed; neither was the Supreme Court which ruled that the possibility to conscientiously object only related to a ‘hands-on’ capacity in the provision of abortion services.
In a recent paper in the JME (available here) I have argued, albeit only indirectly, that this decision is only half-correct. Nurses and other medical professionals have a human right to object to the provision of a wide range of services which they deem incompatible with their conscience. I say that the decision of the Supreme Court is only half-correct because the Court explicitly avoided investigating the possibility of the nurses’ human right to conscientious objection. Under the Human Rights Act, individuals have a right to freedom of conscience and religion. That right may, in appropriate circumstances, entail the right for nurses to object to being involved in administrative and supervisory duties connected with abortion services. If you ask me how the Supreme Court avoided having to consider the nurses’ human right to freedom of conscience and religion I couldn’t tell you. I bet neither could any of the Law Dons at Oxford.
I realise that by appealing to human rights I am not necessarily making the nurses’ case any more deserving of sympathy that it already is(n’t). The Human Rights Act is not a very popular piece of legislation. The tabloid newspaper The Sun hates it: see here. (If you read The Sun other than for the comedy effect of the paper, then we probably can’t be friends anyway.) David Cameron’s party is thinking of repealing the Human Rights Act: see here. (If you like David Cameron’s party… we probably should not talk about politics.) But despite the lack of popularity of the Human Rights Act, it confers legal rights that you have a right to enjoy. And you should be able to enjoy those rights even if people think that you are a bigoted conservative Catholic nurse who should be fired on the spot for refusing to do her job. You should be able to enjoy the rights conferred by the Human Rights Act even if The Sun or David Cameron hate the Act. That is the whole point of legal rights.
In my JME paper I do not spend much time criticising the Supreme Court for not doing its job properly. I criticise instead the British Medical Association’s policy on the right for doctors to conscientiously object to providing medical services. I argue that the policy document is inadequate because it does not properly consider the rights of doctors under the Human Rights Act. I could have equally criticised the Nursing and Midwifery Council’s policy on conscientious objection for the same reason. My intention was to show that the law on conscientious objection is complex and is influenced heavily by human rights considerations. If you have to give advice to doctors or nurses on their right to conscientious objection you have to get the law (including human rights law) right. My view is that neither the British Medical Association nor the Nursery Council have got it right. Fortunately, I think the General Medical Council has.
Let me conclude by saying that I don’t think nurses should refuse to provide legal abortions because the Catholic Church tells them not to. I am not a Catholic and I don’t think anyone should be a Catholic. But what I think people should or should not be is irrelevant when it comes to the matter of what they have a legal right to be. Whether I like it or not, nurses have a human right to be good Catholics.
Read the full paper here.