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The Purpose of the Law

One important constraint on the prima facie right to conscientious objection is that the exercise of that right must not frustrate the purpose of the law. All things being equal, it is of course better to fulfil the (presumably) just aims of a legal policy without having to coerce anyone to act against conscience. However, things stand differently if and when allowing for a right to object is not compatible with the aims of the law. Thus pacifism can be tolerated if there are enough conscripts, but not otherwise.

As Raz explains, the prima facie right to conscientious objection is at its strongest in relation to paternalistic laws, imposed for the benefit of the would-be objector. It is particularly difficult to justify coercing someone’s conscience for her own good. The right is markedly less robust with regard to laws and policies which aim to promote the public interest. In this context, Raz claims, the right to object will be more defensible when fulfilling the purpose of those policies does not depend on any one individual. As he says, laws that are there to protect the public interest ‘normally allow for a certain flexibility because of the insignificance of each individual’s contribution’.[1] However:

... here as elsewhere one is concerned with balancing the right to autonomy as against other interests. Thus if too many people will, in a particular society and at a particular period, claim the right to object they may defeat the interest served by the law and this may be indefensible.^

It is an upshot of this that the right to conscientiously object to military service may well depend on how many others wish to rely on the right in order to excuse themselves. If it is engaged so widely as to defeat the interest served by the law—in this case, fighting a just war—the right must be restricted. The same will be true of other public interest laws where compliance by any individual is insignificant to carrying out the purpose of the law. Raz gives taxation and pollution laws as examples where individual contributions are clearly insignificant. That consideration goes in favour of a right to conscientiously refuse to comply, where a matter of conscience is plausibly implicated. However, since the purposes served by taxation and pollution laws clearly cannot be sustained in the face of widespread conscientious objection, a right to object to such laws cannot be afforded if the predicted uptake is great.

In the case of abortion, then, one pertinent question is what interests are meant to be served by a state’s abortion policy, and in what circumstances conscientious exemptions could obstruct those interests. In its decision in Doogan, the Supreme Court underscored the fact that the main purpose of the 1967 Abortion Act was to provide for safe and effective abortion treatment, with the section 4 right only included as a ‘quid pro quo’ of that provision.!® If the wider purpose of the Abortion Act is read this way, it follows from the above that the section 4 right is subject to the limit that it cannot be exercised in such a way that jeopardizes the very availability of safe abortion within the provisions of the statute. The question then becomes what sort of use or interpretation of the section 4 right to conscientious objection would constitute the frustration of that purpose.

It will not normally be the case that an individual practitioner’s refusal to participate in abortion treatment precludes a woman’s access to safe, legal abortion. This owes primarily to the fact that there will, in ordinary circumstances, be someone who can perform the task in their stead—to perform a surgical abortion, or administer a pill, or type a referral letter. Still, circumstances will arise in which the exercise of conscientious objection is at odds with the law’s commitment to safe, legal abortion provision, the purpose of the 1967 Act. One obvious circumstance is where a conscientious objector refuses to perform an abortion in an emergency scenario in which no one else is available to perform it. In light of this, it is clear that the section 4(2) qualification for emergency abortions is an essential limit on the right to conscientious objection.

There may be other circumstances, however, in which an objector is so positioned that to exercise the right to conscientiously object would effectively be to obstruct safe abortion provision. One such case might be where a healthcare professional obtains employment at a clinic established to practice abortion exclusively or predominantly, only to then claim her right to conscientiously object to performing almost all tasks associated with her employment. Affording the right to someone thus situated is plainly incompatible with the law’s aim of ensuring abortion’s availability, for, if safe abortion is to be accessible, then at the very least those who are employed for the sole purpose of carrying it out must be willing to do so.

What we might call the ‘effectiveness provisio’ limit on the right of conscientious objection might also come into play in relation to the duty to refer, in the right circumstances. Usually, refusal to refer a patient to another doctor for consultation on abortion will not obstruct abortion provision, since the patient will be able to quickly and easily obtain a consultation with a non-objecting doctor. However, there will be circumstances in which this is not the case, for a number of possible reasons. For instance, where the patient lacks the wherewithal to obtain an alternative appointment, or misunderstands the refusing doctor’s objection as an authoritative medical decision against the abortion, the exercise of the conscience right will have obstructed abortion provision. The same will be true if there are no other non-objecting doctors accessible to the patient. These considerations place limits on the right of doctors to object both to referral and, even, on their right to object to authorizing a legal abortion themselves. Everything here will depend on alternative opportunities for procuring an abortion and the effect of the doctor’s refusal. If time is of the essence (say, because the pregnant woman is approaching the legal limit for abortion), then the stalling effect of a doctor’s decision to refer rather than authorize the abortion herself, or to refuse to refer, may again function to obstruct the purpose of the law’s abortion provisions.

Finally, and most evidently, as is true of pacifist refusal to perform military service, the ‘effectiveness provisio’ limitation restricts medical practitioners’ right to claim conscientious exemption from participating in abortion treatment where there are not enough willing providers to fulfil the law’s purpose of making abortion legal and accessible in a number of circumstances. The absence of sufficient willing providers may owe to the widespread invocation of conscientious exemptions, or may be due to a simple dearth of qualified personnel. Either way, the implications for the conscience right are the same. If the right of conscientious objection is subject to an effectiveness proviso, then it can be legitimately restricted wherever, in all of the circumstances, its effect is to preclude abortion access.

  • [1] ibid 285. I8 ibid 286. 1® Greater Glasgow Health Board v Doogan and Another (n 5) per Lady Hale [27].
 
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