Ms Doogan and Mrs Wood (‘the reclaimers’) worked as midwives in the labour ward at the respondents' Southern General Hospital as labour ward co-ordinators. Both are practising Roman Catholics who, when they started working in the labour ward, claimed conscientious objection to participating in termination of pregnancy, pursuant to section 4 of the Abortion Act 1967, and took no part in the treatment of certain patients in the ward. Previously, terminations had been carried out in the labour ward at the Southern General only if the foetus was more advanced than 18 weeks' gestation, but from 2007 all terminations took place in the labour ward. The number of abortions increased further in 2010 when the Queen Mother's Maternity Hospital was closed. In September 2009 the reclaimers initiated a formal grievance procedure, concerned that their duties had changed and that they were being required to supervise and support staff who were carrying out abortions; however, the Board rejected their complaint. On appeal to the Outer House the Lord Ordinary [Lady Smith] refused declarator that their right of conscientious objection included a right to refuse to supervise and/or support staff caring for patients undergoing termination of pregnancy. They reclaimed.

It was agreed that the reclaimers' duties as labour ward co-ordinators included, inter alia, managing resources within the labour ward; providing detailed handover on every patient in the ward; allocating staff to patients; giving guidance, advice and support (including emotional support) to all midwives; responding to requests for assistance and providing direct care in emergencies; and supporting and assisting with medical interventions such as forceps deliveries. At first instance, the Lord Ordinary construed the words ‘treatment’ and ‘participate’ in the phrase ‘participate in any treatment authorised by this Act’ in section 4(1) very narrowly and concluded that because the reclaimers were not required to play any direct part in terminating pregnancies they were not being asked to ‘participate in any treatment authorised by this Act’; instead, their role was a supervisory and administrative one.

Delivering the judgment of the Inner House, Lady Dorrian noted that Parliament had tried to balance competing interests by liberalising the law while exempting from participation those with a genuine conscientious objection, qualified only by the need to participate if treatment was required to save the life of a pregnant woman or to prevent grave permanent injury to her physical or mental health. Counsel for the Board had accepted that the performance of any of the listed duties might involve participation in treatment authorised by the Act and therefore be covered by the right of conscientious objection, and that, even though their role was supervisory, the reclaimers were part of the team responsible for the overall treatment and care of the patient and would thus participate in treatment authorised by the Act. Distinguishing R v Salford Area Hospital Authority ex parte Janaway [1989] 1 AC 537 (which involved a conscience claim by a secretary who was required to type appointment letters for patients seeking termination), she concluded that the reclaimers' duties were far removed from those of the petitioner in Janaway and it had not been argued that their duties involved anything other than treatment in the proper sense. They were actually taking part in treatment for the purpose of terminating pregnancy in accordance with section 1(3) of the Act. The appeal was therefore allowed. [Frank Cranmer]