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Today (Monday 6\u00a0July) Parliament will consider proposed amendments to the Domestic Abuse Bill. One of the proposed amendments\u2014New Clause 29 (NC 29)\u2014has the potential to eradicate the statutory right of health professionals to opt out of participating in abortion up to 24 weeks, a right that has existed in this country for over 50 years.<\/p>\n
The relevant part of NC 29 reads:<\/span><\/p>\n \u201cAmendment of criminal law in relation to termination of pregnancy<\/span><\/p>\n (1) The Offences Against the Person Act 1861 is amended as follows.<\/span><\/p>\n (2) Sections 58 (administering drugs or using instruments to procure abortion) and<\/span><\/p>\n 59 (procuring drugs, etc, to cause abortion) are repealed.\u201d<\/span><\/p>\n To understand the effect of this on the statutory right of conscientious objection in section 4 of the Abortion Act 1967, we must start from the judgment of the UK Supreme Court in the case of <\/span>Greater Glasgow Health Board v Doogan <\/span><\/i>[2014] UKSC 68. <\/span>Doogan<\/span><\/i> concerned the scope of the right to opt out under section 4.\u00a0<\/span><\/p>\n Section 4 provides: \u201cno person shall be under any duty\u2026to participate in any treatment authorised by this Act<\/span> to which he has a conscientious objection.\u201d In Doogan, the Supreme Court held that \u201ctreatment authorised by this Act\u201d means treatment \u201cmade lawful by\u201d the Act.<\/span><\/p>\n Abortion is a prima facie crime in England and Wales, under sections 58 and 59 of the Offences against the Person Act 1861, and (after viability) under the Infant Life Preservation Act 1929.<\/span> The 1967 Act made abortion lawful (\u201cauthorised\u201d it) in certain circumstances. NC 29 proposes to repeal the sections of the 1861 Act that make abortion criminal, but to leave the 1929 Act in place (for now).\u00a0<\/span><\/p>\n So how this would affect the statutory right to conscientious objection in section 4? Since <\/span>Doogan <\/span><\/i>established that section 4 only covers what is \u201cauthorised\u201d by the 1967 Act, the question is: what abortion <\/span>would<\/span><\/i> still be \u201cauthorised by the 1967 Act\u201d if NC 29 is accepted?<\/span><\/p>\n The answer is that abortion before 24 weeks would no longer be \u201cauthorised\u201d by the 1967 Act, but abortion after 24 weeks would. Abortion after 24 weeks would still be a prima facie crime (under the 1929 Act, which would still be in place), but abortion before 24 weeks would no longer be a prima facie crime (sections 58 and 59 of the 1861 having been repealed) so would require no \u201cauthorisation\u201d from the 1967 Act (or any other source).\u00a0<\/span><\/p>\n Following the <\/span>Doogan <\/span><\/i>decision that only abortion \u201cauthorised\u201d by the 1967 Act is covered by the right to conscientiously object, this would mean that the right no longer applied to abortion before 24 weeks, so health professionals would no longer have the statutory right to opt out of participating in the majority of abortions. Conscientious objection would be available <\/span>only <\/span><\/i>in relation to abortions <\/span>after<\/span><\/i> 24 weeks\u20140.1% of abortions in England and Wales in 2018.<\/span><\/p>\n Another odd\u2014and presumably unwanted\u2014consequence of NC 29 would be that the 1967 Act would still \u201cauthorise\u201d abortion up to 24 weeks in Scotland, but not England or Wales, because sections 58 and 59 of the 1861 Act never applied in Scotland, and their repeal would make no difference there. Thus, while health professionals in England and Wales had the statutory right removed in all but 0.1% of cases, their colleagues in Scotland would continue to benefit from it as before.<\/span><\/p>\n