The conscience clause in the Abortion Act 1967 provides that “no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection.”

The two midwives were employed by the Greater Glasgow and Clyde Health Board in a supervisory position as labor ward coordinators at the Southern General Hospital, the principal maternity hospital in Glasgow.

Early abortions take place in the gynecological unit; abortions after eighteen weeks are carried out in the labor ward. Following reorganization of maternity services in Glasgow, the Foetal Medicine Service, which provided centralized specialist diagnostic facilities, including the diagnosis of fetal abnormality, were transferred to the labor ward at the Southern General Hospital. Thus, the number of abortions carried out in the labor ward increased.

As a result of concerns over the increase in terminations, the two midwives initiated a formal grievance procedure in September 2009 in which they sought confirmation that, having expressed a conscientious objection to the termination of pregnancy, they would not be required to delegate, supervise, or support other staff in the participation and provision of care to patients undergoing medical termination of pregnancy, at any stage in the process.

Their employer ruled that “delegating to, supervising, and/or supporting staff who are providing care to patients throughout the termination process does not constitute providing direct 1:1 care.” (“1:1 care” refers to the medical termination of pregnancy under Section 1:1 of the Abortion Act 1967.) This ruling reflected in the guidance given for many years by the Royal College of Midwives and the Royal College of Nursing that the conscience clause only applied to direct participation in the termination of a pregnancy.

The midwives petitioned the Court of Session for judicial review and, in the Outer House on February 29, 2012, the Lord Ordinary, Lady Smith, accepted the distinction between direct and indirect care and upheld the ruling of the employers. Construing the word “treatment” in the conscience clause, she said, “It seems to me that the ordinary meaning is that the word refers to that which is capable of bringing about and has as its purpose, the termination of the pregnancy—in present practice, giving the abortifacient drugs.”

The Petitioners appealed and in the Inner House on April 24, Lady Dorrian, giving the opinion of the court, quoted an English case:

The treatment in question, as Nolan J. observed in Janaway, is: ” . . . not begun or, I imagine, finally decided upon before the patient arrives at the hospital. The treatment is not simply abortion. It includes pre- and post-operative care. It covers the case where, for one reason or another, no abortion in fact takes place.”

She went on to say that “In our view the right of conscientious objection extends not only to the actual medical or surgical termination but to the whole process of treatment given for that purpose.”

She concluded that “The conscientious objection in section 4 is given, not because the acts in question were previously, or may have been, illegal. The right is given because it is recognized that the process of abortion is felt by many people to be morally repugnant. As Lord Diplock observed in the RCN case, it is a matter on which many people have strong moral and religious convictions, and the right of conscientious objection is given out of respect for those convictions and not for any other reason. It is in keeping with the reason for the exemption that the wide interpretation which we favor should be given to it. It is consistent with the reasoning which allowed such an objection in the first place that it should extend to any involvement in the process of treatment, the object of which is to terminate a pregnancy.”

The court appears to have been influenced by the consideration that “The effect of the interpretation contended for by the respondents [the employers] would be that whether one of the reclaimers was able to exercise their right to conscientious objection would require to be assessed on a task by task basis. That in itself might not be easy to manage. Moreover, it is debatable whether safety would be compromised more by what the reclaimers [the midwives] propose than by a system which places on those who may already be struggling with their conscience the additional burden of having to assess whether each task comes within the scope of their conscientious objection and of having to re-state that objection, possibly on a daily basis. On the reclaimers’ interpretation, the matter would be clear from the outset and management structures and protocols could be devised (as seem to have been possible to some extent previously) to deal with the situation, in respect of procedures which are, for the most part, elective ones.” It is difficult to disagree with that.

An appeal could be taken to the U.K. Supreme Court.

Were Joseph and Mary married? The Catholic Church, Eastern Orthodox, and some Protestants teach that Mary remained “ever virgin.” Some, though, claim that a marriage has to be consummated to constitute a real marriage. Is this true? And what is the Church’s position on such marriages today?

Under Roman law of their time, Mary and Joseph were clearly married. Nuptias non concubitus, sed consensus facit (It is not sleeping together, but agreement that makes marriage), wrote the prominent Roman jurist Ulpian (170-228). In his famous letter written to the Bulgarian prince Boris I in 866, Pope Nicholas I takes the same view, “according to the laws (leges), the consent of those whose union is arranged should be sufficient. If that alone is absent, all the other solemnities, even including coition, are in vain, as the great teacher John Chrysostom attests, who says: Not intercourse but will makes marriage.”

Yet the declaration from the book of Genesis, “and they shall be one flesh,” suggests that consummation is essential to marriage. That is what the great canonist Gratian of Bologna thought in the twelfth century. However, Peter Lombard thought otherwise, insisting that it was the agreement, the meeting of minds of the couple that makes marriage, leading to a lively debate between the universities of Bologna and Paris.

The Parisian view was adopted by Pope Alexander III (1159-1181) in answering a case propounded to him by the Archbishop of Salerno, declared that if consent de praesenti (“de præsenti” is an ellipsis for “de præsenti tempore”—“words in the present tense”) was expressed by such words as these “I accept you as mine.” “and I accept you as mine”, whether an oath was interponed or not it was unlawful for the woman to marry another and if she should contract a second engagement by promise even although followed by sexual intercourse she should be separated from the second and should return to the first husband. (Corpus Juris Canonici Decretales Gregory IX lib iv tit iv cap iii) Alexander III confirmed the Parisian view in another decretal, “Veniens ad nos G.”

And what of Genesis? The Parisian school countered with First Corinthians: “The wife hath not power of her own body, but the husband: and likewise also the husband hath not power of his own body, but the wife.” From the moment of the marriage the man has no power over his own body. His body is already his wife’s and her body is his. Therefore, this is the moment at which they become “one flesh.” Their agreement makes them “one flesh” by giving to each power over the other’s body; the sexual union is mere matter of fact. As the great English legal historian, F W Maitland put it, “We must distinguish between the perfection of a legal act and the fulfillment of obligations which that act creates.”

Alexander III, following the ancient tradition of the Church declared that “After a lawfully accorded consent affecting the present, it is allowed to one of the parties, even against the will of the other, to choose a monastery (just as certain saints have been called from marriage), provided that carnal intercourse shall not have taken place between them; and it is allowed to the one who is left to proceed to a second marriage” (III Decretal., xxxii, 2). But this is a case of the dissolution of a marriage, not a declaration that there was no marriage to dissolve. The Council of Trent makes this clear: “If anyone shall say that a marriage contracted, but not consummated, is not dissolved by the solemn religious profession of either one of the parties to the marriage, let him be anathema” (Sess XXIV Can vi). In Maitland’s words, “a marriage is a marriage, and it cannot become more of a marriage than it already is.”

The answer, then, is yes. Whether viewed in light of Church law today or of Roman law of their own time, Joseph and Mary were fully and truly married.

Marriage in its origin is a contract of natural law; it may exist between two individuals of different sexes although no third person existed in the world, as happened in the case of the common ancestors of mankind. It is the parent not the child of civil society. In civil society, it becomes a civil contract regulated and prescribed by law and endowed with civil consequences. In most civilized countries, acting under a sense of the force of sacred obligations, it has had the sanctions of religion superadded; it then becomes a religious, as well a natural and civil, contract; for it is a great mistake to suppose that because it is the one, therefore it may not likewise be the other. Heaven itself is made a party to the contract and the consent of the individuals pledged to each other is ratified and consecrated by a vow to God.

Defenders of traditional marriage, in particular, should see the connection between the two fundamental principles of filiation, “the child conceived or born in marriage has the husband for father” and its counterpart, “the investigation of paternity is forbidden.”

Parental acknowledgement, of course, has always been an option. I do not know the figures for the United States, but in France, according to the INED, births outside marriage represented 44 percent of all births, more than half (56 percent) of the births of first children, a third of the births of second children, and almost a quarter of the births of third children.

However, 85 percent of children under fifteen lived with both their parents. Some 82 percent of children born outside marriage were recognized by their father within one month (compared with only a third of children born outside marriage in 1965 and 1970), and 92 percent were ultimately recognized. Some 94 percent of babies recognized by their father within a month were living at that time with both their parents, whereas the proportion was only about 80 percent in the late 1960s and early 1970s. Lastly, only 15,000 children a year are expected to remain without paternal recognition, about as many as in the 1960s, when fewer than 6 percent of births took place outside marriage.

While the presumption of paternity constitutes the essence of marriage, children born out of wedlock are nevertheless very widely and promptly acknowledged by their parents.

The family is increasingly centred on the child. In the face of changes in family life and conjugal relations in particular, the child appears to be the only enduring reality. Whereas in the past, marriage was the prerequisite for the formation of a family, today the prerequisite is essentially the presence of children. As Martine Segalen told the Pécresse Commission (2006), “Studies show that when a member of a family lives with a partner outside marriage, that person is considered to belong to the family only from the birth of a child on.”

In the increasingly frequent absence of marriage, therefore, it is indeed the child that makes the family. In fact, by making the relationship between his parents irreversible, the child brings each of them into the other’s family, something a childless common-law relationship does not.