Amending the Health (Regulation of Termination of Pregnancy) Bill: 5 Missed Opportunities.

Health (Regulation of Termination of Pregnancy) Act 2018: 5 Missed Opportunities.

Fiona de Londras, Vicky Conway, Máiréad Enright, Ruth Fletcher, Sheelagh McGuinness

Context

At Report stage in the Dáil, the Minister for Health appeared unwilling to accept any amendments, notwithstanding evidence that many of the current provisions in the Bill will lead to sub-optimal clinical care and potentially harm pregnant people. In addition, many of the provisions in the unamended Bill are unworkable and will be problematic to implement. The Minister’s responses to proposed Amendments rarely, if ever, engaged with the substance of the underpinning argument, relying instead on ambiguous reference to legal advice from the Attorney General’s office.

Building on our previous work, best international practice (including the WHO Safe Abortion Guidance, international human rights law, and comparative law) we have previously outlined a broad set of objectives for improvement of the Bill, most comprehensively in the Briefing Paper from October 2018 (https://lawyers4choice.files.wordpress.com/2018/10/hrtop_briefing_final.pdf).

Based on debates at Report stage in the Dáil, this document identifies five priority issues, i.e. issues where the textual difficulties in the Bill are not mitigated or are not capable of mitigation by clarity of policy objectives (c.f. the inclusion of trans persons among those to whom abortion may be delivered under the law in spite of their textual omission from the legislation). It is critical that these issues be addressed to ensure the law will provide a truly accessible and workable system of abortion care in Ireland.

Issue 1: Over-Criminalisation

Criminalisation of abortion leads to unsafe and illegal abortion and poor health outcomes for women, as well as either constituting or leading to human rights violations depending on the circumstances. While the preferable outcome is full decriminalisation, the Minister seems committed to retaining criminal offences. The current wording of the offences has two primary faults:

  • It over-criminalises abortion, with particular implications for assistance which the offence treats as if it were coercion; and
  • It results in a chilling effect for medical practitioners, including a reported nervousness among obstetricians about the use of medically indicated procedures such as feticide in certain circumstances.

On (1) at Report stage it was proposed either to (a) remove the relevant offences (esp. Section 5(4) of the Bill after Committee stage) and if necessary amend the Non Fatal Offences Against the Person Act 1997 to cover coerced abortion, or (b) to replace the current text with a more tailored text that criminalised coerced or forced abortion but was not so broad as to criminalise assistance with a consensual self-managed and self-administered abortion.

The Minister for Health refused to change the current offences, although he intimated an openness to ‘finding a better way’:

The provisions in the Bill protect people from forced abortions or an attempt to intimidate women, for example, in a situation of domestic or sexual abuse. A dominant personality trying to forcibly terminate a woman’s pregnancy might induce a woman to terminate the pregnancy herself instead of attending a medical practitioner. I accept there is a difference of views on this, but we proposed these offences in the general scheme of the Bill which the people saw in advance of the referendum….I worry that we have yet to find a better vehicle by which to do this. We have had numerous conversations with the Attorney General. Based on those conversations, on the work of the All-party Committee and on the general scheme of the Bill, I am not in a position to accept the amendments to remove the offences section.

On (2), inserting a broad ‘good faith’ exemption for medical practitioners will free practitioners of the chilling effect of criminalisation and clarify that following best medical practice where abortion is lawfully available will not attract criminal liability.

Thus we recommend amendments to s. 5 so that its first four clauses would read:

Section 5(1): It shall be an offence for a person intentionally or recklessly

(a) to cause injury or death to a pregnant person such as to cause their pregnancy to end; or

(b) without consent to administer any drug or substance to a pregnant person such as to cause their pregnancy to end.

Section 5(2): Section 5(1) shall not apply to a pregnant woman in respect of her own pregnancy.

Section 5(3): Section 5(1) shall not apply to a medical practitioner acting in good faith.

Section 5(4): It shall be an offence for a person intentionally to coerce or deceive a pregnant person into having an abortion against their will or without their knowledge.

Issue 2: Consultation v Examination

The Bill at present allows for lawful abortion under s.s. 11 (risk to life or health), 12 (risk to life or health in an emergency), 13 (condition likely to lead to death of the foetus), and 14 (early pregnancy) where either one or two medical practitioners have examined the pregnant person to assess whether the legal requirements for access to abortion are met. Furthermore, under s. 18 where a pregnant person seeks a review of a refusal to treat, the ‘review committee’ must also examine her to see whether the legal requirements are met.

An examination requirement may result in unnecessary and intrusive procedures, especially to date an early pregnancy. It also suggests that the patient must remain or be treated as passive, as if her views on whether the risk in question exists or the pregnancy is under the 12 week LMP limit for access to early abortion are not relevant to the formation of a clinical opinion.

At Report stage amendments seeking to change ‘examine’ to ‘consult with’ or ‘consult with (where possible)’ were not accepted by the Minister. The reasoning appeared to be that (a) legal certainty for practitioners required that the same word is used throughout the Bill and (b) because a woman in an emergency setting may be unconscious and could not be ‘consulted with’, the word consult could not be used in any provision. This is a weak argument and in any case replacement with ‘consulted with, where possible’ would deal with (b).

Furthermore, in his responses the Minister suggested the change would mean doctors had to certify based on the ‘opinion’ of the pregnant person. This is not what ‘consult with’ means; it means that in reaching his or her own opinion the doctor should take into account and treat as meaningful the pregnant person’s view of the level and impact of health risk. It is also clear that ‘consult’ can include examination where medically indicated but does not require unnecessary examinations.

 

These amendments were lost by only 2 votes in the Dail. We recommend that they be proposed once more in the Seanad and that the Minister be pressed to provide a more robust defence of the maintenance of the current wording.

Issue 3: Avert v Mitigate

The Bill at present allows for lawful abortion in situations of risk to life or health (s. 11) where doing so is appropriate to ‘avert’ the risk identified (and the other requirements–existence of risk, certification, and non-viability of the foetus–are fulfilled). Ordinarily ‘avert’ is taken to mean ‘eliminate’ in medico-legal settings, suggesting an extremely high barrier for access to abortion care in these situations, and an obligation on women to endure a range of severe health conditions in pregnancy. The same is the standard of review under s. 18 where abortion care has been refused.

At Report stage the Minister refused to accept amendments that would replace ‘avert’ with either ‘mitigate’ or ‘reduce’ in order to ensure a practical and practicable level of availability of abortion care after 12 weeks. His argument, in essence, was that the fact the practitioners must be satisfied that termination was ‘appropriate’, rather than ‘necessary’, to avert the risk meant that it would not require the risk to be eliminated in order for the abortion to be lawful. This argument ignores the fact that appropriateness is assessed against the standard of aversion; in other words, the substantive question is remains whether the abortion would avert the risk. His response thus does not address the actual rationale for the proposed amendment.

We propose that amendments changing ‘avert’ to ‘reduce’ or ‘mitigate’ be entered and pressed.

Issue 4: Certification and ToP by Same Practitioner

As approved at Committee stage, s. 14 of the Bill required the same practitioner who certifies as to requirements for access (gestation under 12 weeks LMP) to also provide the abortion care following the waiting period. Similarly, the practitioner who carries out the abortion must be a certifying practitioner in cases of risk to life or health (s. 11) or condition likely to lead to death of the foetus (s. 13).

The requirement that the same practitioner certify and provide is likely to act as a barrier to access to care and, significantly, to impose significant rostering burdens in hospital settings (where all abortions are to take place after 9 weeks) and, as a result, to lead to delay and later terminations especially after 12 weeks.

At Report stage the Minister did lay down and gain approval for an amendment that would allow for re-certification without a second waiting period under s. 14. In other words, where the doctor who first certified that the pregnancy was under 12 weeks triggering the waiting period is not available three days later, a different doctor may arrange for the abortion provided s/he re-certifies that the pregnancy is still under 12 weeks. No new waiting period will apply. While this imposes a second possibility of invasive ‘examination’ on a woman, it seems to mitigate many of the delay and associated problems with the original formation and to satisfy practitioners’ apparent desire not to provide abortion care based on another doctor’s certification.

However, at Report stage no amendment was made to the certify/provide requirement after 12 weeks. Thus there is no plan to mitigate the burdens on pregnant people in these cases. Neither is there any plan to mitigate the implications of this requirement for hospital rostering or individual clinicians (bearing in mind delays between administration of different drugs, or the length of time induction of labour may take, this requirement may result in clinicians having to extend shifts by days in some cases with implications for the care of other patients).

At Report stage in the Dáil, the Minister appeared to suggest that this is necessary in order to ensure the “chain of causation” is not broken if there is an unlawful abortion in a hospital setting, i.e. that requiring the same doctor to certify and provide is required in order to be able to identify who to prosecute in cases of unlawful abortion after 12 weeks. However, the explanation was not entirely clear. If this is the rationale then (a) it indicates that meaningful criminalisation is intended in hospital settings thus exacerbating the chilling effect, (b) it misunderstands the reality of team-based healthcare provision in hospital settings, especially in complex cases, and (c) it takes an overly restrictive approach to addressing a perceived problem.

A more limited and proportionate approach would be to put in place a similar recertification requirement for the practitioner who delivers the abortion care.

We propose pressing this question in hospital settings. This is also the clear desire of hospital-based practitioners who will be delivering this care.

Issue 5: Mandatory Waiting Period: Mitigation

Mandatory waiting periods are not clinically indicated, impose significant burdens on women and pregnant people with reduced access to medical practitioners (for reasons of resources, location, coercive or abusive relationships etc), and cause delays. Where the period of availability of abortion without restriction as to reason is low (as here), and where following that period the legal standard for accessing abortion care is very demanding (as here), the imposition of a waiting period can result in a woman not being able to access abortion care.

For political reasons it appears that the waiting period will not be removed, even though that is the optimal outcome.

In the absence of removal of the waiting period, amendments seeking to mitigate its impact should be pursued. In particular, amendments ensuring that (a) the waiting period starts from the first contact with the practitioner including by telephone, (b) the waiting period can be waived where it would otherwise result in the 12 week limit being exceeded, and (c) the waiting period can be waived where the medical practitioner determines in consultation with the pregnant person that its imposition would result in her not being able to access care (e.g. in cases of domestic or intimate partner violence where the woman’s movements are determined and controlled by her partner).

On (c) the Minister appeared to suggest that cases of domestic or intimate partner violence would be covered by the ‘emergency’ provisions of the legislation. We do not see how this can be the case. The emergency provision (s. 12) is confined to cases where the woman’s life or health are at immediate risk such than an immediate abortion is required. Only a small sub-set of cases of domestic and intimate partner violence can meet these criteria.

Contacts:

Fiona de Londras | f.delondras@bham.ac.uk | @fdelond |

Máiréad Enright | m.enright@bham.ac.uk | @maireadenright

Ruth Fletcher | r.fletcher@qmul.ac.uk | @fletcher_ruth

Sheelagh McGuinness | sheelagh.mcguinness@bristol.ac.uk

Vicky Conway | vicky.conway@dcu.ie

Amendments at the Health Committee

Tomorrow the Health (Regulation of Termination of Pregnancy) Bill is being debated before the Oireachtas.  180 amendments have been proposed.

This list summarises and highlights the key pro-choice amendments that have been put forward. For detailed analysis of anti-choice amendments see here.

 

General
  • Amend stigmatising definition of abortion
  • Add a long title to the Bill confirming that its role is to facilitate timely and safe access to abortion
  • Allow healthcare practitioners other than doctors to be involved in care
  • Trans* inclusive language
  • A statement guaranteeing access to abortion, without discrimination
  • A statement ensuring that where the legislation is capable of different interpretations, doctors must adopt the interpretation most favourable to protecting the pregnant person’s rights
  • Completely decriminalise abortion, whether or not carried out within the scope of the legislation, or tackle unduly broad new criminal offences in s. 5 (ensure doctors acting in good faith are not criminalised, addressing coerced illegal abortion)
  • Allow for transfer of pregnant person’s care within a team of doctors.
  • Sanction for doctors’ refusal to refer a patient to a willing colleague on the basis of conscientious objection
  • Ensure publication of relevant public health information around the abortion service, including recording refusals of access to termination
  • Prevent harassment of service providers
  • Human-rights oriented independent review of the operation of the legislation within years of its commencement
  • Ensure access to abortion in the Republic for women ordinarily resident in Northern Ireland
12 weeks
  • Replace requirement to physically examine people seeking abortion pre-12 weeks with requirement to consult with them/assess their views
  • Remove the 3 day waiting period, or mitigate delays associated with its operation
  • Allow access without the need to prove grounds, up to 12 weeks’ gestation, not 12 weeks LMP
Post 12 weeks
  • Definition of health, consistent with best international practice
  • Allow access to abortion post-12 weeks on grounds of risk to health, not risk of serious harm to health.
  • Change requirement that life-saving/health-preserving abortion can only be offered if it will eliminate (rather than reduce) the risk to life/health.
  • Remove arbitrary time limit in fatal foetal abnormality provision
  • Amend the definition of viability which might be used to refuse abortion access in cases where the woman’s life/health is at risk provided the foetus can be kept alive after birth with extreme interventions.

 

To read more about the arguments for these amendments, you could read our recent briefing paper .

The American origins of proposed anti-choice amendments to the Health (Regulation of Termination of Pregnancy) Bill 2018

Mairead Enright

This week, the Health (Regulation of Termination of Pregnancy) Bill will reach Committee Stage in the Dail. Several TDs including Mattie McGrath, the Healy-Rae brothers and Peader Toibin have tabled amendments to the Bill. It may be useful to make some points about their likely origins, and about what this tells us about legal mobilisation within the Irish ‘pro-life’ movement. Some of the amendments are expected from previous debates, and include extensive assertions of individual and institutional rights to conscientious objection, and a requested ban on abortion where the foetus has been diagnosed with a disability. Others are newer, and make very clear that Irish anti-abortion politicians are deeply influenced by, if not directly transplanting laws used in the United States. They seem particularly influenced by the Catholic anti-choice group Americans United for Life, which had a hand in the creation of the Pro-Life Amendment Campaign in 1979. The turn to statute represents a significant shift in strategy from the referendum campaign, where leading anti-abortion campaigners steadfastly refused to discuss in any detail the kind of abortion legislation that they would accept in Ireland in the event of repeal. Having lost the referendum battle, they are scrambling for legislative means to retain a foetocentric abortion law in Ireland, and to ensure continued state interference in pregnant people’s medical care, often through hyper-medicalisation, or corrupted medicalisation of abortion care. In the United States, fetal protection laws are used to spark litigation which can test the limits of the Roe v. Wade settlement, to limit women’s access to abortion to the greatest extent possible. Perhaps the Irish ambition is to achieve a similar goal.

‘Protection of infants born alive’

Anti-abortion TDs propose that doctors should have a statutory duty to ‘take all steps as may be appropriate and practicable’ to preserve the life of an infant ‘born alive as the result of the carrying out, or attempted carrying out’ of an abortion under the Act. The likely inspiration for this proposal is American federal legislation from the Bush era; the Born Alive Infants Protection Act, 2001, produced by Americans United for Life. Parts of the Irish proposal are taken almost verbatim from that law.  

During the referendum campaign the No side made much of the claim that the Act would permit termination of viable pregnancies, despite reassurances that it would not. This proposed amendment, however, is not only about viable fetuses (around 24 weeks), or those at the soft margins of viability (22-23 weeks) but about those which have shown ‘signs of life’ at earlier stages in pregnancy. It would encompass any fetus which showed  signs ‘including, but not limited to’ one or more of the following:

(a) breathing;

(b) a heartbeat;

(c) umbilical cord pulsation; or

(d) definite movement of voluntary muscles.

“Including but not limited to” is the key phrase here – the proposal is drafted to make clear that a fetus will be considered ‘born alive’ if it shows some signs of life after separation from the pregnant person’s body. The proposal does not take account of weight or gestational age – the key determinants of the foetus’ prospects of survival. ‘Life’ here is bare life.

This proposal would not directly prohibit any abortions otherwise legal under the Act. It is primarily about post-termination scenarios, though it might also have implications for how abortion is performed. Its purpose is threefold: (i) to exploit the lack of discussion in Ireland to date about how foetal life ends, including questions around the appropriateness of feticide where necessary to prevent undue distress to the foetus, the pregnant woman and medical staff providing treatment, especially in cases of foetal anomaly (ii) to fill in those gaps in legal discourse with the pro-life motif of ‘babies left to die’ and (iii) to worry doctors about the possible legal ramifications of providing necessary abortion care post 20 weeks, and to dissuade them from providing it at all.

‘Fetal pain’

Another of this group’s proposals is that an anaesthetic or analgesic should be administered to the fetus – with or without the pregnant person’s consent – prior to termination if the pregnancy is at 20 weeks’ or more gestation. The assertion that fetuses can feel pain at this stage in pregnancy is widely disputed. Under the government’s proposed abortion law, pregnancies could only be terminated after 20 weeks in cases of fatal fetal abnormality, risk to the pregnant person’s life or risk of serious harm to health. The proposal allows for some exceptions; for example, if the administration of an anesthetic or analgesic would pose a risk to the pregnant woman’s life (though, consistent with Catholic medical ethics, it does not provide for an explicit exception where the risk is to her health).   This proposal appears, at least in part, to be based on Utah’s fetal pain provisions. It does not go as far as other U.S. bills designed to protect the ‘pain-capable unborn child’, which ban terminations after 20 weeks entirely, or in all but a limited range of circumstances.

‘Dignified disposal of fetal remains’

This group also proposes that fetal remains should be buried or cremated, regardless of the stage of pregnancy at which the termination takes place. A person who disposes of fetal remains in any other way would be guilty of an offence, and it seems clear that people who have abortions, even by using pills at home are targets of this law. Burial and cremation are, of course, associated with funeral rites, and this proposed law is a clear interference with very intimate decision-making and, consequently with the right to privacy (Whole Women’s Health v. Smith 2018).  We can contrast it with s. 12 of the new Isle of Man abortion legislation, which makes provisions on disposal of remains, but emphasises the pregnant person’s wishes, and does not mandate interment or cremation.  As TFMRI have noted, under the current law, many parents have been deprived of the dignity of decision-making around burial for their child, and none of the TDs now making proposals around disposal of fetal remains have acted to support them. Numerous US states now have laws on the books which mandate interment or cremation. They all have their origin in the Unborn Infants Dignity Act, again model legislation produced by Americans United for Life. In the Irish proposals, refusal to bury or cremate remains is proposed to be regulated in the same section as sale of, or illicit experimentation upon, fetal remains – this is a clear stigmatisation of supposedly ‘improper’ modes of grieving. However, it is also a nod to the US origins of this idea – fetal disposal bills there have their origins in scaremongering around supposed illicit trade in remains.

Ultrasound

The anti-abortion TDs propose that, at least 24 hours before the termination, the pregnant person must be ‘given an opportunity’ to view the foetal ultrasound and, where possible to hear the heartbeat. This requirement would apply even in early pregnancy, where the ultrasound is not medically justified. Acquiescing would not be a condition of access to treatment under this proposal. However, the doctor providing abortion care or their assistant must certify the pregnant person’s decision (to view/hear or not), and the pregnant person must sign the certificate. Under the proposal, abortion providers who do not comply with this requirement would incur criminal penalties. Several US states have laws of this broad kind on the books, and they have their origins in an Americans United for Life bill called the Women’s Ultrasound Right to Know Act.  It is important to note that the proposal is that women would be given ‘the opportunity’ to engage with the ultrasound and audio recording. It would not be mandatory to do so. This is likely because courts have held that mandatory ultrasound laws infringe on the rights of doctors, infringe women’s bodily autonomy and can subject women to harm and distress.

Informed consent

The TDs propose that no termination should be carried out unless the woman’s consent can be considered ‘informed’. ‘Informed’ consent here is a co-option of feminist discourse. In anti-abortion terms it means that the doctor or another qualified person would be required to inform the pregnant person orally and in person of a range of matters including:

  • The probable physiological characteristics of the foetus.
  • The financial duties of the ‘father’.
  • Detailed information on foetal pain.
  • The possibility of reversal of the effects of the abortion pill.
  • Information on adoption

The pregnant person could not opt out of this information, even if she chose not to hear the foetal heartbeat or view the ultrasound. Leaving aside the dubious medical support for some of the information that anti-abortion TDs would require health professionals to promote, this proposed law blurs the boundaries between information and advocacy. This proposal again, is American in origin. Again, TDs’ proposals are routed in the anti-abortion activism of Americans United for Life; their Abortion Pill Reversal Information Act, and their Women’s Right to Know Act.Striking down a North Carolina statute which required a doctor to provide this information even where a woman chose not to engage, Judge Harvie Wilkinson said:

Informed consent… is driven by the “patient’s particular needs and circumstances”…[But] the information [prescribed by the anti-choice statute] is provided irrespective of the needs or wants of the patient, in direct contravention of medical ethics and the principle of patient autonomy. Forcing this experience on a patient over her objections in this manner interferes with the decision of a patient not to receive information that could make an indescribably difficult decision even more traumatic and could “actually cause harm to the patient.” … And it is intended to convey not the risks and benefits of the medical procedure to the patient’s own health, but rather the full weight of the state’s moral condemnation.

Conclusion

Americans United for Life have attacked abortion provision in the United States by developing a series of legislative interventions over time. Their Irish acolytes would like us to accept all of their ideas, all at once. These proposals are unlikely to make any significant impact on the Bill at Committee stage, at least in their current form.  Earlier attempts to incorporate American-style restrictions into Irish abortion legislation have failed; for example, anti-abortion senators unsuccessfully attempted to add a foetal pain provision to the Protection of Life During Pregnancy Act 2013. The greater risk is that these provisions will take up much of the oxygen in the room, leaving less time for proper engagement with the essential liberalising amendments proposed by groups including Lawyers for Choice and accepted by TDs including Kate O’Connell, Clare Daly, Louise O’Reilly and Brid Smith.  Those amendments adapt international best practice to the Irish context, are responsive to the demands of pregnant people living under Ireland’s law, and reflect the recommendations, in large part, of organisations embedded in Ireland for years and decades. Anti-abortion TDs, by contrast, are offering a copy-and-paste of the Americans United for Life legislative playbook. It should not be given more weight than it deserves.

 

Amendments needed to Health (Regulation of Termination of Pregnancy) Bill 2018.

Five of our academic members – Ruth Fletcher, Sheelagh McGuinness, Fiona de Londras, Vicky Conway and Mairead Enright – have today published a briefing on the Health (Regulation of Termination of Pregnancy) Bill 2018. 

The authors argue that:

“In repealing the Eighth Amendment on the 25th May 2018, the public provided a mandate to pass a law that would decriminalise abortion, show respect for pregnant people’s wishes, and enable provision of compassionate healthcare, especially for the most vulnerable. If the Health (Regulation of Termination of Pregnancy) Bill 2018 is enacted in its current form it will fail to reflect the ethos of the repeal mandate. It will give rise to a legal framework that does not facilitate appropriate abortion care and requires compliance with suboptimal clinical protocols…

Some of the Bill’s provisions have not been published or scrutinised before, and others have been published but not scrutinised. The Joint Oireachtas Committee on the Eighth Amendment and the Citizens’ Assembly contributed significantly to the quality of public debate about what an abortion law should look like if the referendum passed. Now that the amendment has passed and the Eighth Amendment has been replaced by the Thirty-Sixth Amendment, the Oireachtas has an important opportunity to build on the internationally recognised deliberative processes that facilitated the repeal vote, and consider the specific terms by which access to abortion care will be made lawful. In this briefing, we draw on our collective legal expertise to raise particular questions about proposed statutory provisions that carry legal risks because they are likely to (1) generate unnecessary barriers to lawful abortion access, and (2) stigmatise and punish activities that have beneficial motivations and effects.”

The authors make 6 sets of recommendations for amendments to Simon Harris’ Bill:

Legislative purposes and definitions: general principles

Recommendation 1a: Open the legislation with a statement that the purpose of the legislation is to ensure rights-respecting access to abortion care.

Recommendation 1b: Amend the long title of the Bill to reflect its character as a more enabling, rather than limiting provision. Specifically, rephrase the long title as: “An Act to ensure that pregnant people may have equitable access to abortion care in a safe and timely manner, and at no cost, and for that purpose to amend [relevant legislation as currently listed].”

Recommendation 1c: Define termination of pregnancy as “induced abortion to end a pregnancy using a medical or surgical procedure”.

Patient safety: general requirements

 Recommendation 2a: Provide that abortion be delivered in a ‘safe’ manner by ‘competent’ individuals rather than specifying where, and by what specific categories of healthcare practitioners, abortion can be performed. The specific details of these requirements should be contained in implementation guidance.

Recommendation 2b: Remove or at least reduce unnecessary requirements that risk obstructing best clinical practice. In particular, amend sections 10, 12, and 13 to remove any requirement that the same medical practitioner examines, certifies, and carries out the abortion.

Recommendation 2c: Throughout the Bill, use the term “competently trained healthcare practitioner” instead of “medical practitioner”.

Recommendation 2d: The definition of “competently trained healthcare practitioner” should clearly include those with the necessary level of skill, training and qualification to legitimately participate in certifying, making arrangements for and carrying out abortions

Regulating access: specific requirements for early pregnancy: section 13

Recommendation 3a: Amend section 13(1) to replace ‘having examined’ with ‘having consulted with.’

Recommendation 3b: In clinical guidance clarify and explain the different modes of consultation and examination that may be appropriate in different concrete contexts.

Recommendation 3c: Amend section 13 to remove the 3-day mandatory waiting period by deleting section 13(2)(b)

Or

Recommendation 3d: If agreement cannot be secured to remove this clause, clarify that the mandatory waiting period will not apply where its application would contribute to undue hardship and compromise pregnant people’s rights including by risking exceeding the 12-week limit for access to abortion in early pregnancy:

  • At the end of section 13(2)(b) add the following: ‘unless the application of the 3 day period is overly burdensome to a woman or pregnant person, including because it may contribute to them exceeding the 12 week limit referred to in subsection (1).’

Regulating access: specific requirements after 12 weeks of pregnancy: in cases of risk to life or health under section 10

Recommendation 4a: Amend section 10 so as to reflect its objective (protecting a pregnant person’s health or life and respecting their rights) more clearly:

  • Section 10(1)(c): Replace ‘avert’ with ‘reduce’, in order to avoid the possibility that too high a threshold of risk prevention would be adopted in practice.
  • Section 10(1)(c): Add ‘and to give effect to the pregnant person’s wishes’ after ‘reduce the risk referred to in paragraph (a)’
  • Section 10(1)(a): Replace ‘serious harm’ with ‘harm’

Recommendation 4b: Remove Section 10(1)(b) so as to remove foetal viability as a limitation on access to abortion where pregnancy poses a risk to the life or of serious harm to the health of the pregnant person, Or

Recommendation 4c: Remove the reference to ‘extraordinary life-sustaining measures’ in the definition of viability in section 9.

Regulating access: specific requirements after 12 weeks of pregnancy in cases of conditions likely to lead to death of the foetus under section 12

Recommendation 5: Amend section 12(1) to replace “that is likely to lead to the death of the foetus either before, or within 28 days of, birth” with “that is likely to lead to the death of the foetus before or shortly after birth”

Punishing unlawful abortion: specifying criminal offences under section 5

 Recommendation 6a: Delete section 5(4).

Recommendation 6b: Amend section 5 in order to meet legal standards of clarity and necessity. Specifically, adopt the following new language:

Section 5(1): It shall be an offence for a person intentionally or recklessly

(a) to cause injury or death to a pregnant person such as to cause their pregnancy to end; or

(b) without consent to administer any drug or substance to a pregnant person such as to cause their pregnancy to end.

Section 5(2): It shall be an offence for a person intentionally to coerce or deceive a pregnant person into having an abortion against their will or without their knowledge.

Recommendation 6c: Add a new subsection to section 5: “Subsections (1) and (2) shall not apply to a healthcare practitioner acting in good faith”.

Recommendation 6d: In clinical guidance provide examples of the kinds of evidence that medical practitioners may take into account in forming reasonable, good faith opinions about whether the legal criteria under sections 10, 11, 12 and 13 are met.

You can access the briefing at the link below:

Position Paper 2

POSITION PAPER on The Updated General Scheme of the Health (Regulation of Termination of Pregnancy) Bill 2018

Four legal academics, Mairead Enright, Fiona de Londras, Ruth Fletcher and Vicky Conway have published a preliminary analysis of the government’s proposed abortion legislation. The full position paper is available here.

The General Scheme is designed for a post-repeal Constitution in which women’s full rights must be taken into account. Abortion legislation must be drafted and interpreted to give effect, not only to pregnant people’s right to life, but to their rights to privacy, bodily integrity, freedom of conscience, liberty, equality, and freedom from inhuman and degrading treatment. However, the General Scheme does not make a sufficient break from the legal regime shaped and dominated by the 8th Amendment, which insisted on legal equivalence between a pregnant person and a foetus.

Executive Summary

The position paper makes a number of recommendations for  (i) improvements to the General Scheme (ii) designing clinical guidance to avoid unintended ‘chilling effects’ which inhibit meaningful access to abortion care (iii) policy and resource commitments (iv) regulation of the medical profession.

Improvements to the Bill

  • Decriminalisation:
    • Residual criminalisation of abortion should be removed.
    • If it is not removed (i) penalties should be reduced (ii) those who assist pregnant people in consensually ending a pregnancy should not be criminalised.
  • Interpretation:
    • Head 1 should include interpretative principles providing that the legislation “shall be interpreted in the manner most favourable to achieving positive health outcomes for the pregnant person, and to the protection of her rights”.
  • Trans* inclusion:
    • ‘Woman’ should be replaced with ‘pregnant person’ or ‘woman or pregnant person’ throughout.
  • Health
    • The law should adopt the WHO definition of ‘health’ in Head 1.
    • Heads 4-6 should require certifying practitioners to take account of the pregnant person’s own assessment of relevant risks to her life/health, or of the severity of a foetal diagnosis.
  • Abortion in Early Pregnancy
    • Certification: Nurse practitioners, midwives, nurses and other qualified healthcare. professionals should be authorised to certify gestation under Head 7.
    • Time limits: Head 7(5) should be removed, so that abortion is available up to 12 weeks gestation (14 weeks LMP).
    • Waiting period: this should be removed.
  • Accountability:
    • Refusals of abortion care including on grounds of conscientious objection should be formally notified to the Minister.
    • Time limits for review of refusals under Head 13 should be reduced.
    • Lawyers or other appropriately qualified persons should be included in panels for Head 13 reviews.
    • The legislation should provide for an independent, human-rights-oriented review of its operation, similar to that in the Gender Recognition Act 2015.
    • The legislation should stipulate remedies in cases of wrongful delay or denial of abortion care.
  • Exclusion zones should be introduced outside premises where abortion care is provided.
  • Distribution of misleading abortion information, including by ‘rogue’ counsellors, should be regulated.
  • Display of graphic abortion imagery should be regulated.
  • Head 18 should be removed.

Clinical Guidance

  • Drafting and Scrutiny
    • Draft clinical guidance should be prepared, made publicly available for scrutiny by the Oireachtas and amended if necessary before the legislation comes into force.
    • Service users, including representatives of marginalised groups should participate in drafting and scrutinising the guidance.
    • Scrutiny processes should pay particular attention to issues of human rights, and to the World Health Organisation’s guidance on safe abortion.
  • Guidance should clarify interpretation of the law, in particular:
    • How the law will affect miscarriage management.
    • How the law interacts with conflicting aspects of Catholic medical ethics, particularly, but not exclusively, in hospital settings.
    • When and how a doctor who holds a conscientious objection to abortion should disclose it.
    • Head 4
      • That ‘serious harm’ is not a synonym for ‘permanent’, ‘protracted’ or ‘life-threatening’.
      • How ‘extraordinary life-sustaining measures’ and ‘appropriate’ are to be interpreted.
      • That a pregnant person refused access to abortion care in later pregnancy may not be subjected to alternative treatment which violates their constitutional rights to bodily integrity or freedom from inhuman and degrading treatment.
    • Head 6
      • That where the test under Head 6 is not satisfied but there is an independent risk of serious harm to the pregnant person’s health, termination under Head 4 may be lawfully permitted and should be considered.
    • Head 7
      • That all suitably qualified healthcare professionals, including nurse practitioners and midwives, can provide abortion care.
      • That multiple appointments are not mandated.
      • That onerous examinations to date pregnancy are not mandated.
      • That self-administration of pills is permitted.
      • That ‘as soon as may be’ should be understood as ‘as soon as practicable’.
      • That, except where necessary in the interests of the pregnant person’s health, Head 7 abortion care should be provided locally.
    • Guidance should detail care pathways for persons requiring special provision including people with physical and psychosocial disabilities, minors, people living in direct provision, survivors of sexual violence and people whose capacity to make medical decisions is in question.
    • Capacity: Guidance should clarify how the law interacts with the law on consent for for minors and for adults with diminished capacity.  Updates to the National Consent Policy may also be required.
    • Interlegal issues: Guidance should clarify care pathways for pregnant people whose circumstances are also governed by other specialised legislation.

The Minister should clarify:

  • How public information about the new law will be disseminated.
  • What training will be provided for doctors implementing the legislation, and how that training will ensure rights-oriented interpretation of the legislation.
  • What systems (including disclosure protocols) will be put in place for managing conscientious objection.
  • What support will be available for those who still need to travel for abortion care in circumstances where Irish law does not permit it.
  • What information and training will be made available to others involved in abortion decision-making; for example, those involved in assisted decision-making where a pregnant person’s capacity is in issue.
  • How universal access to abortion care will be guaranteed, whether under the Mother and Infant Care scheme, the new Regulation of Termination of Pregnancy Act, or an alternative scheme.

The Medical Council, and other relevant professional bodies, should clarify:

  • What disciplinary measures will be taken where a doctor who holds a conscientious objection to abortion refuses to refer patients as required by Head 15(3).
  • What steps will be taken to discourage abuses of conscientious objection.
  • What disciplinary measures will be taken where a doctor wrongfully refuses abortion care under the Act.

 

DOWNLOAD POSITION PAPER

Lawyers For Choice Launch

A Plain English Guide to the Referendum

On Tuesday 8th May Lawyers for Choice launched “A Plain English Guide to the Referendum”, a clear and comprehensive guide to the upcoming Referendum to answer common questions about the referendum. You can download and print copies of the guide here. An easy to read version of our leaflet was made by the Center for Disability Law and Policy at NUIG and it is available for download here.

We are also sending printed copies and badges to groups around the country, if you would like some email us at lawyers4choice@gmail.com.

Speaking at the launch at the Legal Eagle, Chancery Place, were:

· Amanda Mellet, Mellet v Ireland (TMFR)

· Natalia Fernandez, Migrants and Ethnic-minorities for Reproductive Justice

· Emma Burns, the Centre for Disability Law and Policy

· Katie Dawson BL

For those who missed the launch, videos of each of the speakers are available on our YouTube channel here!

On the day

Organiser, Dr Ruth Fletcher, Senior Lecturer in Medical Law, QMUL, said:

“I’m proud to be part of the legal campaign for Together4Yes because medical law needs to work with pregnant people, not against them.

Lawyers for Choice work to improve public understanding of Irish abortion law. We want to be part of answering those questions. That’s why we’ve produced this guide.

This Referendum could be an important step in telling a different story about Ireland. The campaign could create the space for a different kind of public legal conversation, one that listens to pregnant people’s experiences and works with them to make a caring legal system. But this kind of legal storytelling needs good quality legal information, and to hear from those who have been excluded from the conversation in the past.”

Speaking at the Launch, Katie Dawson BL said:

“At canvasses and meetings throughout the country people are asking tough questions about abortion law, about consent and secrecy in sex, pregnancy and health care, and about the proper role of the constitution in a legal system. Telling a new story about Ireland through this public legal conversation is not easy. If we want to make the most of what the referendum might be, we need to find new ways of listening and turning what we hear into legal guidance.”

Organiser Sinead Williams said:

“Lawyers for Choice have invited speakers who have different experiences of the Eighth Amendment and how it contributes to a harmful legal environment. We need to learn from the resourcefulness of migrants, people with disabilities, human rights litigants and social justice lawyers.

Together, with quality legal information and knowledge of people’s everyday lives, we can overcome the cruelty of the Eighth Amendment. With a yes vote on the 25th May we can tell a new legal story of Ireland, one that speaks to the everyday compassion we see around us making tough situations a little better.”

Lawyers for Choice also provide #AskALawyer services with local #Together4Yes groups around the country. If you would like a member to come speak at an event or stall email us at lawyers4choice@gmail.com

 

Referendum FAQ

Due to the high levels of misinformation surrounding the referendum taking palce on May 25th and what it would mean in relation to the law on abortion in Ireland Lawyers For Choice have to put together this FAQ. We will be updating it frequently and you can email us any other question that you may have or you have encountered while canvassing at lawyers4choice@gmail.com

If you would like a printable version of this FAQ you can print one here.

1. What does ‘repeal’ mean?

‘Repeal’ is the word we use for removing a part of a law. When we say ‘repeal’ we mean removing the part of our constitution that bans a pregnant person from having control over their own body and from having an abortion.

2. What is the 8th Amendment?

The 8th Amendment is what we call Article 40.3.3 of the Constitution of Ireland. It says that there is an equal right to life for a ‘mother’ and an ‘unborn’. This means that only in cases where the mother will die because of her pregnancy can she have an abortion. Article 40.3.3 is called ‘the 8th Amendment’ because it was the eighth change to be made to the constitution. It was put into the constitution by referendum in 1983. It was put in to try and prevent people from having abortions.

3. Why do we need a referendum?

Our constitution is the foundation of our legal system.  All other legal rules are built on this foundation. All our laws have to agree with the constitution. The constitution can only be changed by the people. It cannot be changed by Parliament or the courts on their own.  If we want to change or remove part of the constitution, we have to ask and get the approval of the people. The process of asking for people’s approval to change the constitution is called a referendum.

Because the 8th Amendment is so restrictive, we cannot change the laws we have without removing it from the constitution or changing it in some way. We cannot allow a person who is pregnant because of rape or incest have an abortion. We cannot allow a person whose baby will die before or shortly after birth have an abortion. We cannot allow a person whose pregnancy will make her seriously ill have an abortion.  We cannot allow a feeling, thinking pregnant person to make her own decisions about her pregnancy.  If we want to change the law and remove the roadblocks allowing people to make these decisions, we need to remove the 8th Amendment.

4. What will we be voting for in May?

On May 25th, we will be asked if we want to remove the words of Article 40.3.3 and replace them with ‘Provision may be made by law for the regulation of termination of pregnancies.’ This means that politicians will be allowed to make laws about abortion in the same way that all laws are made. A yes vote is a vote for change.

5. What is the law currently?

Right now, you can only have an abortion legally if your life is at risk because of your pregnancy.  This was what the Supreme Court decided in The X case in 1992 (Attorney General v X [1992] 1 IR 1). If your life is at risk because you are suicidal, you are entitled to an abortion. In 20132 we introduced the Protection of Life During Pregnancy Act which says when an abortion can take place. A pregnant person whose life is at risk must be examined by two doctors to ensure that her life is at risk. A pregnant person who is suicidal must be assessed by two psychiatrists and one doctor before she is allowed an abortion. A person is guilty of a crime and can be imprisoned for up to 14 years if they have an abortion in Ireland illegally. This includes women who buy abortion pills on the internet and take them in Ireland. Women who travel to England or any other country are not guilty of a crime. No person has ever gone to prison in the Republic of Ireland for having an illegal abortion under the laws we have now.

6. What will happen if we repeal?

If we vote Yes on May 25th, our politicians will be free to bring in new laws to allow women and people who can get pregnant to control their own bodies. A Citizens’ Assembly and a Joint Oireachtas Committee discussed the 8th Amendment and possible changes to the law. After this politicians from all parties and none have proposed new laws that will be brought in if we repeal the 8th Amendment.

7. What will happen if we don’t repeal?

If we do not repeal the 8th Amendment, abortion remains illegal here unless there is a risk that the mother will die because of her pregnancy. People who are pregnant because of rape or incest, or whose babies are likely to die before birth or soon after will not be allowed to have an abortion. Abortion pills ordered online will continue to be illegal and if someone is caught using them, they may still be imprisoned for 14 years. Women will still be forced to travel for abortions. Women who cannot travel, such as asylum seekers, poorer people, younger people, people in poor health, or people without a passport will be forced to stay pregnant if they cannot access abortion pills.

8. What will the changes to the law look like?

The new laws will allow people to have an abortion up to 12 weeks of pregnancy. A pregnant person who requests an abortion from her GP will have to wait 72 hours before she can have one. The new laws will also make sure that pregnant people who are at risk of death or who face a serious risk to their health because of being pregnant will be able to have an abortion when they need it. People whose babies will die before or soon after they are born (commonly called Fatal Foetal Abnormality), will also be able to get an abortion when they need it and chose to have it. No one will be forced to have an abortion.

9. Why is 12 weeks the time allowed to have an abortion on request?

There are two main reasons for allowing people to have an abortion up to 12 weeks of pregnancy. First, for rape victims, it is hugely traumatic and upsetting to have to prove that you were raped in order to get an abortion. Allowing a person who is pregnant because of rape to have an abortion without having to justify, prove or explain her circumstances is the best way to minimise the trauma she may experience.

Secondly, in most European countries, abortion is available on request up to 12 weeks. When an abortion happens this early in pregnancy, it can be done using abortion pills (such as those already being ordered online illegally by many Irish women). These pills are totally safe and mean that the person doesn’t have to have surgery to have an abortion. People could take these pills in private, at home and with their doctor’s supervision.

10. Are there other countries that have similar laws to our current laws?  

Irish laws are some of the most restrictive laws in Europe. There are no other countries that ban abortion in all cases but death in their constitutions. In Europe, only Malta has more strict laws than Ireland. In Malta, abortion is completely illegal, even if the mother will die because she is pregnant. Countries such as El Salvador and Nicaragua also ban abortion in all circumstances. The UN has said that laws  criminalising women who have abortions, and denying access to safe and accessible abortion can violate women’s rights.

11. Will our new laws be more liberal than the abortion laws in Britain?

No. In Britain, people can access abortion for 24 weeks’ pregnancy in cases where staying pregnant would be more risky for a woman’s health than ending the pregnancy. Two doctors have to agree that these conditions have been met in order for an abortion to be legal under the Abortion Act 1967.  Modern, medically supervised abortions are very safe. Carrying a pregnancy to term is usually more dangerous than not being pregnant. In Britain, in practice this means that any person can access abortion on request up to 24 weeks of pregnancy, though the majority of abortions take place well before then. The proposed new Irish laws would only permit access on request up to 12 weeks.

After 24 weeks, the law in England only allows a person to access an abortion where her life is at risk, where the foetus would be born with severe disabilities or where continuing the pregnancy would cause a grave permanent injury to the pregnant person’s health. There is no time limit where an abortion is carried out for these reasons under English law. The proposed Irish law is different for two reasons. First, Irish law will not permit doctors to terminate a pregnancy because the foetus will be born with a disability. Second, except in emergencies, or where the foetus has been diagnosed with a fatal foetal abnormality, Irish law would place a time limit on abortion, even where the woman’s life or health was as risk.

If  the baby is capable of surviving outside the womb, Irish doctors would be required by law to deliver it early, and provide the baby with the same care that is given to any other premature baby.

12. No one has ever been put in prison for having an abortion – why do we need to change the law?

While no one in Ireland has ever gone to prison under the current law, a woman has been prosecuted in Belfast for ordering an abortion pill online and taking it. Many women in Ireland order abortion pills over the internet. Although abortion pills are safe, they should be taken under supervision from a doctor. If an Irish woman takes an abortion pill at home alone and she is worried that something has gone wrong, she may be afraid to cannot contact a doctor because she has broken the law. Women are scared of facing a 14 year prison sentence so they will not go to their doctors to seek help. Doctors who do help women to have an abortion in Ireland would also face 14 years in prison.

13. Will the new legislation be gender neutral or inclusive of trans/non-binary people?

The proposed new law is not written in gender neutral words.

14. Can’t people give up children for adoption as an alternative to abortion?

Certainly, we have laws in Ireland that allow people to give children up for adoption. This will not change if we change our abortion laws. However, forcing someone who does not want to be pregnant to remain pregnant is a violation of human rights. While many pregnant people who chose to give their child up for adoption may do so, not  everyone wants to make this choice. For women who have been raped, who have poor health or who do not wish to go through with a pregnancy that they do not want, this is not a compassionate option. For people whose baby cannot survive outside the womb or who will die shortly after they are born, they very often wanted to have their baby. Adoption is neither possible nor suitable for them.

15. Doesn’t repealing the 8th mean that unborn babies will have no rights?

No.  If the 8th Amendment is repealed ‘the unborn’ will no longer have constitutional rights. However, the proposed new law imposes restrictions on accessing abortion. Time limits, waiting periods and limiting the circumstances where abortion is allowed after 12 weeks will be included in the new law in order to protect foetal life.