An appeal by two Catholic midwives who lost a legal battle over their role in abortion procedures got under way at Scotland’s highest civil court on Tuesday.
Midwifery sisters Mary Doogan and Concepta Wood maintained that being required to supervise staff involved in abortions was a violation of their human rights.
They claimed that, as conscientious objectors to the process, they should be entitled to refuse to delegate, supervise and support staff taking part in pregnancy terminations or providing care to patients during the process.
The midwives took their case against NHS Greater Glasgow and Clyde to the Court of Session in Edinburgh but lost last year.
In February, a judge ruled that the midwifery sisters did not have direct involvement in the procedure to which they object and dismissed the action.
Lady Smith found that the women were sufficiently removed from involvement in pregnancy terminations to afford them appropriate respect for their beliefs.
The women said at the time that they were “very disappointed and greatly saddened” by the decision, and later began moves to appeal against the ruling.
That appeal, being heard by Lord Mackay, Lady Dorrian and Lord McEwan at the Court of Session, is expected to run into Wednesday.
The court heard claims that it should be up to an individual’s conscience, and not officials, to determine what amounts to “participation” in the abortion process.
Ms Doogan, 58, and Ms Wood, 52, were employed as labour ward co-ordinators at the Southern General Hospital in Glasgow.
At the time of the original ruling, Ms Doogan had been absent from work due to ill health since March 2010 and Ms Wood had been transferred to other work.
Both women registered their conscientious objection to participation in pregnancy terminations years ago, as allowed by the Abortion Act, but became concerned when all medical terminations were moved to the labour ward in 2007.
They argued that before they were not called on to delegate, supervise or support staff treating or caring for patients undergoing termination procedures - a stance disputed by the health board.
They said the supervision and support of staff providing care to women having an abortion did amount to “participation in treatment” and breached their rights under the European Convention on Human Rights. They raised a judicial review at the court which was ultimately dismissed.
The health board said it recognised the midwives’ right not to participate in abortions but argued that the Act did not give them the right to refuse to work with staff providing care to such women.
Lawyers representing the midwives returned to court as the full appeal against the original decision began. The midwives were also in court to observe the proceedings.
Gerry Moynihan QC, representing the women, suggested that their consciences should determine what tasks they undertake.
He told senior judges: “The dividing line ought to be the individual’s conscience, not a bureaucrat saying what is within the literal meaning of the word ‘participation’ or not.”
The lawyer told how the 1967 Abortion Act sought to balance two objectives.
The QC said: “What it sought to balance was the interests of those who wished abortion to be liberalised and indeed carried out more safely, so it was not carried out by back-street practitioners, and regulated. It decriminalised abortion in certain circumstances.
“But Parliament also recognised that, having decriminalised it, it could then be that a supervisor could direct a junior person, a nurse or junior doctor, to participate in treatment for which they had a well-recognised conscientious objection.
“What Parliament did was balance the interests of those who wished to liberalise the treatment while respecting the right of conscientious objection.”
Mr Moynihan told the court that the women have no conscientious objections to pregnancy terminations when they are necessary to save the life of the mother.
He also said that the case could end up at the Supreme Court in London, on appeal from either side.
The midwives’ appeal is being supported by the Society for the Protection of Unborn Children (SPUC).
A representative of the body, who was present in court, declined to comment at this stage.
The hearing continues.