Cogs in the Machine
A second core consideration when attending to the limits of the right to conscientious objection is the degree to which objectors are, by virtue of performing particular tasks, implicated in the conduct which they deem deeply immoral. If the interest in granting conscience rights is that of protecting the moral integrity of objectors, it will clearly matter just how morally compromised objectors are likely to feel as a result of different levels of involvement in abortion. Causal proximity to the immoral activity, directness of involvement, the presence of intervening acts, and whether or not one’s agency is an essential condition for the immoral enterprise are all factors which can be thought to go to the depth of a person’s reasonable self- perceived complicity in what he regards as a morally objectionable activity.
In the British case, this issue bears out in the sorts of activities thought to amount to ‘participation’ in abortion treatment. What degree of ‘participation’ ought to invoke the conscience protections of section 4? As we saw, the view of the Scottish Court in Doogan was that it was for the objector herself to draw the boundaries of that protection. In other words, what amounts to morally compromising ‘participation’ was itself a question of conscience. The implication of this answer, we saw, is that there are no limits whatsoever on the kinds of conduct from which objectors can excuse themselves with legal protection. The sandwich delivery person on a hospital ward has as much right to refuse, without repercussions, to service those involved in abortion treatment as a doctor has to refuse to carry out a surgical abortion. Yet it strikes me as wholly inappropriate to regard these two examples as equally serious breaches of conscience from which objectors are in need of equal protection. And considering the fact that the right to conscientious objection must be limited to those refusals which can be tolerated whilst still meeting the legal aim of safe abortion provision, it is reasonable to think that in delineating those limits, the law should be sensitive to the degree of moral complicity which goes hand in hand with different sorts of acts.
The most obvious feature relevant to the severity of a breach of conscience is the directness of involvement in the perceived immoral outcome. The more remote that outcome is from the contentious conduct, the less severe the breach of conscience will be. However, the directness of the causal relationship between the conduct and the outcome is not the only thing relevant to the gravity of a breach of conscience. A notable limitation of the Scottish Court’s approach in Doogan was its propensity to mask some distinctions between levels of facilitating abortion which are likely to be pertinent to breach of conscience. Lady Hale was of course right that Doogan and Wood’s supervisory tasks could be likened to hospital cleaning and catering in the respect that they all facilitated abortion in the widest sense—they might all claim to be cogs in the machine. However, the midwives were very differently situated with regard to the level of responsibility and authority they exercised over the abortion procedures on their ward and the infrastructure required to carry them out. While the supervising midwives may have been no more directly involved in ‘hands on’ abortion treatment than were the caterers, they were, when on duty, at the helm of the abortive procedures and the ward on which they occurred. Much unlike the caterers, their lack of direct involvement in those procedures did not owe to the fact that they were too insignificant to the process, but to the fact that they were at too high a level of responsibility. But morality does not cut any breaks for this. Being distanced from morally prohibited conduct because one is too much in charge of the mechanisms effectuating it is not the same as being distanced because one is too inconsequential. A person is not morally off the hook for refusing to get her hands dirty if she is the one overseeing the entire operation. It is reasonable, therefore, if Doogan and Wood had believed themselves to be in a fundamentally different moral position from that of the hospital caretakers, and thus in need of greater protection for conscience. These important differences were also rendered negligible on the Scottish Court’s reasoning which seemed to bring potentially any refusal within the scope of section 4.
Lady Hale’s comparison of the midwives’ supervisory tasks with the jobs of hospital cleaners and caterers might also be considered inapt insofar as they were thought to exemplify the same degree of actual participation in abortion treatment. It is undoubtedly true, as Lady Hale remarked, that the cleaners and caterers would also facilitate abortion by contributing to the general upkeep of a hospital in which abortions are performed. Yet the duties of the supervising midwives directly contributed to the effectuation of each individual abortion in a way that hospital caretaking patently does not. Booking appointments, allocating beds and staff, and supervising handovers are essential components of every individual abortion treatment, as well as being causally quite proximate to those treatments. Lady Hale might just as well have pointed out that the drivers of the delivery vehicles supplying the hospital equipment also facilitate the abortions that happen there, in a more general way. But hospital delivery drivers who object to abortion are not thereby in the same boat as an objector whose job is to book termination procedures and oversee the staff performing them.