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.

‘Kitchen Table’ Meeting [Where When]

Lawyers for Choice invite interested pro-choice legal academics, practitioners, undergraduate and postgraduate law students, and legal activists to an open ‘kitchen table’ meeting. The purpose of the meeting will be to plan future activities and create working groups. All lawyers, and especially law students, are most welcome. Those who attend will decide the meeting agenda together. However, likely topics for discussion now and in the future (drawn from email feedback from prospective members) include:

  • Administrative issues e.g. forming a steering group/committee, governance principles.
  • Fundamentals of reproductive justice advocacy and reproductive rights law.
  • Prioritising and drafting ‘position papers’.
  • Drafting plain English ‘explainers’ on important legal issues.
  • Public legal education: events and materials.
  • Student-led activities, on and off campus.
  • Practitioner activities.
  • Knowledge exchange events for politicians and practitioners.
  • Creating online and print resources to inform politicians, practitioners and the voting public.
  • Collaboration with other pro-choice groups.

If you have any advance suggestions for the agenda or need further information, please email lawyers4choice@gmail.com.

Law Reform Proposals

Lawyers for Choice has not yet made detailed proposals for reform of the Irish abortion law post-8th. We look forward to working with interested parties. For our ideas on what the law should contain, please see the ‘Explainers and FAQs‘ section of the website.

Other Projects.

In April 2017, we drafted a short bill giving effect to the Citizens’ Assembly’s recommendations on grounds for access to abortion.

In December 2015, several of us were involved in drafting a ‘compromise’ abortion bill for Labour Women, which later informed Labour’s abortion law reform policy.

In-Depth Research & Analysis

Lawyers for Choice Working Papers

Members’ Publications (freely accessible)

 

 

Explainers and FAQs.

Have a question or comment? Email us at lawyers4choice@gmail.com

ABOUT THE CONSTITUTION

What is the 8th Amendment?

The 8th Amendment was added to the Constitution in 1983. It provides that the State must act to protect and vindicate the right to life of ‘the unborn’ (the embryo or foetus in the womb from of conception until birth), with ‘due regard’ to the equal right to life of the pregnant woman. In the case in 1992, the Supreme Court interpreted the Amendment conservatively to mean that abortion can only be permitted where there is a ‘real and substantial risk’ to the right to life of the woman, which can only be avoided by terminating the pregnancy. The pregnant person’s rights besides life (for example her right to bodily autonomy) are not taken into account. Her right to life means only that she is entitled to survive the pregnancy. The Constitution is the fundamental law of the State: all legislation passed by government must comply with it. The government argues that the  8th Amendment prevents the legislature from liberalising the current abortion law.

What is Ireland’s current abortion legislation?

The Protection of Life During Pregnancy Act 2013 regulates access to life-saving abortion in Ireland. Two doctors must confirm a woman’s entitlement to access an abortion in cases of physical risk to life; three in cases of suicide risk. In 2015, just 26 abortions were carried out under the Act.  In 2014 the number was 25. So the Act is of no assistance to the vast majority of people who need abortions. The Act also criminalises all other abortions carried out in Ireland. So, for example, a person who causes her own miscarriage in early pregnancy using pills has committed a criminal offence which can attract a 14 year prison sentence.

The Regulation of Information (Services Outside the State For Termination of Pregnancies) Act, 1995 governs the information which doctors and pregnancy counsellors may give to patients who need to access terminations outside Ireland. They may not make appointments for their patients with services abroad, and they may not ‘advocate or promote’ abortion. 

What are the effects of the 8th Amendment?

The 8th Amendment does not mention the word abortion. It refers to the ‘unborn’. As such the 8th Amendment affects all pregnancies, and has been used to override pregnant persons’ medical decision-making where doctors feel that their decisions present a risk to their foetus’ life. Organisations working on this issue include AIMS and Midwives for Choice.

The most well-known effect of the 8th Amendment is that it prohibits abortion except in life-saving cases. Most people who need an abortion (including those pregnant through rape, those whose pregnancy places their health at serious risk, those living with domestic violence or in poverty, and those whose foetus is unlikely to survive long after birth) will need to travel abroad to access services, often at great personal cost, or may use illegally-obtained abortion pills.  

The 8th Amendment may also require doctors to take extreme measures in an effort to provide an opportunity for the foetus to be born alive, even where those measures harm and degrade the pregnant woman. The case of Ms. Y showed that later on in pregnancy, a person deemed entitled to a life-saving abortion under Irish law may be required to submit to a Caesarean section for this reason. In the case of PP v HSE, the body of a woman who was brain-dead was kept on life support in an effort to prolong her pregnancy. The High Court allowed the life support to be withdrawn when it was shown that the foetus was extremely unlikely to survive to term.

Why does the 8th require criminalisation of abortion?

We do not agree that it does. Criminalisation of abortion is stigmatising, discourages pregnant persons from seeking necessary healthcare, and does not prevent termination of pregnancy. The current criminal penalties for abortion are too high. The State could instead work with pregnant persons to meet its constitutional obligation to ‘respect, defend and vindicate’ the right to life of the foetus by taking positive steps to ensure the continuation of pregnancy; for example by enhancing social and economic supports for marginalised pregnant persons and improving sex education in schools and communities.

Why does the 8th deny access to abortion in cases of fatal foetal abnormality?

We do not agree that it does. The State’s obligation under the 8th Amendment is to defend unborn life insofar as it is ‘practicable’ to do so. At least in cases where it is probable that the foetus will not be born alive, the prohibition on abortion is not justified. However, the 8th Amendment may impose an unworkably high standard of proof in cases of fatal foetal abnormality: it is not always possible to tell with certainty at the point of diagnosing a fatal foetal abnormality whether the foetus will survive until birth, survive the birth itself, or live for some short time after birth. The State has argued that if there is some chance that the foetus can be born alive, the pregnancy cannot be terminated. This position places parents who have received a diagnosis of fatal foetal abnormality in an impossible position, violating their human rights. We support Termination for Medical Reasons Ireland in their campaign for law reform.

Should the 8th be repealed or replaced?

We argue that the 8th should not remain in the Constitution in any form. The  text of the Constitution should not reference termination of pregnancy: healthcare should be regulated by legislation, not by the Constitution. 

  The Constitution could be changed by referendum in any of several ways including:

  • Repeal the 8th Amendment and do not replace it.
  • Replace the 8th Amendment with a provision making clear that the Oireachtas has wide powers to legalise access to abortion (as recommended by the Citizens’ Assembly).
  • Replace the 8th Amendment with a positive limited right to reproductive autonomy, clarifying the balance which the people wish to strike between the rights of pregnant persons and the state’s interest in protecting foetal life. We say ‘limited’ here because very few constitutional rights are absolute.

Wouldn’t removing the 8th generate huge uncertainty in the law?

We do not believe that removing the 8th would generate extraordinary uncertainty in the law. Some measure of uncertainty is normal in a constitutional system like Ireland’s; constitutional provisions are expressed in broad language, and we can only know precisely how a given Supreme Court thinks a particular provision should apply in a particular scenario when an appropriate case comes to the Court. If the 8th were repealed or replaced, the current abortion law (the Protection of Life During Pregnancy Act, 2013) would remain in force until the Oireachtas changed it.  New legislation passed by the Oireachtas would be presumed to be constitutional and, in general, where complex issues of  public policy are concerned , the courts defer to the Oireachtas. See below for the question of what the Supreme Court might do if this Act, or new legislation were challenged, in full or in part. 

What will the Constitution say about the rights of pregnant persons and the rights of the unborn if the 8th is removed?

This depends on the text, if any, inserted in the Constitution after a referendum. The most important changes effected by removing the 8th Amendment are that:

  • the rights of the pregnant person would no longer be considered ‘equal’ to any rights or interests attributed to the foetus.
  • the courts and the legislature would be free to take account of women’s rights other than the right to life. These include the right to freedom from torture, inhuman and degrading treatment; the right to private and family life; the right to health and the right to freedom of conscience.

Whether the ‘unborn’ would remain an independent rights-bearing- legal ‘person’ within the Constitution is uncertain. However, it is  almost inevitable that, even if the Constitution is changed,  it will continue to recognise some important interests in relation to ‘foetal life’, and the right of the State to take appropriate measures to protect that interest, as a key aspect of the common good.  This has been the experience in other constitutional democracies. Taking this approach would mean that the state would not be permitted to take any steps to prevent termination of pregnancy which disproportionately affected women’s constitutional rights.

It is important to remember that abortion cases are rarely brought to the Irish courts; pregnant persons are understandably reluctant to bring these cases; most of the cases brought under the 8th Amendment involved young women in the care of the state, or were brought by ‘pro-life’ pressure groups such as SPUC. The most likely avenue by which new abortion legislation could come to court might be if the President referred it to the Supreme Court before signing it, as permitted by Article 26 of the Constitution.

If the Constitution is changed in a referendum and the Oireachtas passes new abortion legislation, could that legislation be struck down by the Supreme Court?

This very much depends (i) on the text, if any, inserted in the Constitution after a referendum and (ii) on the content of that legislation. However, we maintain that if the 8th is repealed, or replaced with a provision permitting abortion, there is a strong argument that very restrictive abortion law would be incompatible with the new constitutional position.

Abortion law can be quite complex, as it may need to cover, not only ‘grounds’, but questions of access to medical treatment, non-discrimination, regulation of care and information,  and issues of freedom of conscience. It is difficult, therefore, to say in advance whether a particular legislative proposal is constitutionally ‘watertight’. By the same token, it is important to acknowledge that the government has considerable scope, consistent with the constitution, to develop liberal, human rights-compliant, abortion law.

How can we know what sort of law the government will pass if the Constitution is changed in a referendum?

We would encourage the government to prepare and publish a draft bill or heads of bill in advance of a referendum, and commit to enacting that legislation as soon as possible after a majority vote for repeal/replacement. 

How many other countries put abortion in the Constitution?

About 20. Their provisions take different forms; some are more conservative than others. Most countries which put abortion in the Constitutions have a very poor record on abortion rights.

ABOUT REFORMING THE LAW AFTER THE CONSTITUTION IS CHANGED.

What does international human rights law say about abortion legislation?

A range of international treaty bodies have confirmed that Ireland’s abortion law does not meet the requirements of international human rights law. In the years since the PLDPA was passed:

  • CEDAW has said that the State must change the constitutional provisions on abortion, repeal the Protection of Life During Pregnancy Act 2013, and pass new abortion legislation decriminalising abortion and expanding access. It emphasised the discriminatory effects of the obligation to travel to obtain an abortion.
  • In Mellet v Ireland the UN Human Rights Committee held that Ireland’s abortion law violated Amanda Mellet’s rights to privacy and freedom from inhuman and degrading treatment.
  • The UN Human Rights Committee, in line with CEDAW, has recommended constitutional change, and liberalisation of the abortion law to cover cases of rape, incest, fatal foetal abnormality and serious risk to the health of the mother. It also emphasised the need for guidance to ensure that doctors interpret the existing law appropriately.

For an accessible discussion of Ireland’s human rights obligations see the Center for Reproductive Rights’ submission to the Citizens’ Assembly.

What is the abortion law elsewhere in Europe?

The majority of European countries provide for a period of abortion on request, most up to 12 weeks. For a detailed discussion see here.

What should good abortion legislation do?

Lawyers for Choice have not yet made concrete recommendations for abortion law reform, though we will be working together with other civil society organisations, as appropriate, to do so.

Good abortion law will come from a careful process of reflective deliberation and drafting, informed by a range of national and international experiences and expertise. In order to comply with international human rights law and reflect best international practice in abortion care, abortion legislation should:

  1. Take abortion outside of the criminal justice system. People who obtain abortions, doctors and nurses who provide them, counsellors who assist people to access them, and activists who supply abortion medication should not be vulnerable to prosecution. People pregnant through rape should not be required to engage with the criminal justice system as a condition of accessing abortion.
  2. Vindicate pregnant people’s human rights. The law should not impose formal conditions for accessing abortion which place pregnant people’s lives or health at risk. It should not tolerate inhuman and degrading treatment; especially practices which subject pregnant persons to medical treatment without their full and informed consent, or pressuring them assent to such medical treatment. It should empower pregnant people to make their own healthcare choices in conditions which secure their privacy and dignity.
  3. Ensure that those who need abortions can access them – as early as possible and as late as necessary. It is essential that legislation ensures that people can access abortions in circumstances of serious health crisis, including risk to life, severe health risks, rape, and diagnoses of fatal foetal abnormality. That is the minimum required by international human rights law. In addition, we must recognise that abortion is an ordinary women’s healthcare need, and access should not be confined to ‘exceptional’ cases. It should be available on request, without the need to show additional grounds. Most abortions are accessed in early pregnancy; however, pathways to care must also be available to vulnerable people who may experience delay in accessing services.
  4. Avoid placing arbitrary obstacles in the way of people who need abortion services. Abortion should be understood as part of the continuum of women’s reproductive health care, and not as an aberration. Unless they request it, pregnant persons should not be required to submit to additional interviews, counselling, or information sessions which would not be compulsory in any other healthcare context. Abortion care providers should not be burdened by exceptional regulations unless these have an independent clinical justification.
  5. Positively ensure meaningful access to abortion services, and ensure reproductive justice for marginalised communities. The state must ensure that people have equal access to legally available abortion services. This will mean funding appropriate abortion services nation-wide, and ensuring that staff, both in private providers and in the private and public healthcare sectors more broadly, are trained in accordance with international best practice, and familiar with all governing law. It must also secure the rights of those providing abortion care to dignity and safety at work. Although the state must accommodate conscientious objection, it must ensure that sufficient non-objecting service providers are available to meet needs. Care pathways must be designed with the particular needs of teenagers, disabled people, and ethnic and linguistic minorities in mind. The state must take responsibility for ensuring that everyone who needs it can access accurate information about abortion care and the abortion law.

Should the government adopt the recommendations of the Citizens’ Assembly?

The Assembly’s recommendations provide a very good starting point. In particular, it is significant that the Assembly recommended that legislation provide for access to abortion on request up to 12 weeks, and access on socio-economic grounds and health grounds up to 22 weeks. However, the Assembly’s proposals are not comprehensive and require further scrutiny in several respects. [link to press release]

Are the Assembly’s recommendations constitutional?

See our FAQ notes on constitutional issues here and here. [insert links]

Why do we need any abortion legislation at all?

Some reproductive justice advocates argue that abortion should be regulated like any other healthcare issue, without the need for a separate abortion law. We agree in principle, and we also argue that the regulation of abortion should not be separated from the regulation of access to reproductive healthcare and information more generally. However, we argue that legislation can empower pregnant persons while a healthcare system is transitioning from very restrictive abortion law to more liberal access, in particular by providing clarity as to the extent of rights to abortion. Absence of legal clarity is already a ‘chilling factor’ in Ireland; doctors have argued that they cannot interpret the law in concrete cases. In drafting this legislation, however, we have been equally mindful of the potentially exclusionary and discriminatory effects of restrictive exceptions-based legislation.

Some Irish reproductive justice advocates argue that Ireland should adopt the ‘Canadian’ abortion law model. More context on that idea is available here.

Where can I find a good timeline on the development of abortion law in Ireland?

The IFPA have an excellent timeline here.

Why is it important to ‘decriminalise’ abortion and what does that mean?

Decriminalising abortion means taking abortion outside of the criminal justice process, and regulating it under medical law, not criminal law. It means that neither a person terminating their own pregnancy, nor anyone assisting them to terminate their pregnancy with their consent (whether medical professional, friend, pregnancy counsellor or otherwise) should be vulnerable to prosecution. [More detail needed here]

Should abortion legislation include a rape ground?

We recommend that no ‘rape ground’ should be included in any legislation. In other jurisdictions, accessing abortion on grounds of rape requires women to ‘prove’ their rape to the satisfaction of medics, police or courts. Such requirements reinforce damaging myths about rape victims’ credibility and lead to trauma and delay. Instead, the Oireachtas should ensure that other broader grounds (e.g. risk to health) can meet the needs of those pregnant through rape.

Should abortion be available on the grounds of a diagnosis of foetal disability?

We support the Termination for Medical Reasons Campaign, and argue that termination of pregnancy for reasons of fatal foetal abnormality is already constitutional in many cases, even without repeal or replacement of the 8th.

We do not support a specific disability ground short of fatal foetal abnormality. Its inclusion is stigmatising. Again, care should be taken to ensure that other grounds are drafted appropriately to ensure that they can meet the needs of those unable to continue a pregnancy after a diagnosis of severe foetal anomaly. We adopt the Center for Disability Law and Policy at NUI Galway submission to the Citizens’ Assembly.

What would abortion legislation contain besides grounds?

Abortion legislation should also take measures to improve and ensure access to abortion, particularly among marginalised groups. This includes:

  • decriminalising abortion
  • providing for funding of services
  • educating medical professionals about law and best practice in abortion care
  • ensuring the availability of appropriately skilled professionals willing and able to provide legal abortion care
  • regulating exercise of conscientious objection
  • protecting people seeking abortions and those treating them from harassment 
  • ensuring access to accurate and appropriate abortion information and education

Can Irish hospitals refuse to perform abortions if the law is liberalised?

There are no decided Irish cases on this issue, although the relationship between obstetric practice and religion is a matter of some public controversy.  Article 44.2 of the Constitution guarantees individual freedom of religion and conscience, and so conscientious objection must be accommodated by any abortion law. However, Article 44.2 states that this right is guaranteed to every citizen ‘subject to public order and morality’. As such, it is restricted. We would argue that the right to conscientious objection should extend to direct participation in abortion procedures, but not to ancillary work such as hospital administration or nursing aftercare. In addition, the state has an obligation to ensure that assertions of conscientious objection do not inhibit access to legal abortion. It must ensure that sufficient trained and willing healthcare practitioners are available and authorised to provide abortion care.  

A separate issue arises around institutional assertions of conscientious objection; the right of e.g. a religious congregation to prohibit procedures from being carried out in publicly funded hospitals under its control. We would argue that the right to conscientious objection must be an individual and not an institutional right. However, Article 44.5 of the Constitution provides for denominational autonomy; the right of religious groups to manage their own affairs. It is not clear that healthcare, particularly where a pregnant person’s life or health is at risk, falls within the scope of denominational autonomy.

What is a good example of a country with liberal abortion laws?

One recent common law example is the Termination of Pregnancy Reform Act, passed in Australia’s Northern Territory in 2017. One good European example is the Spanish law of 2010.

Why does this guide say ‘pregnant person’ instead of ‘woman’?

We support the use of inclusive language in the reproductive justice movement, irrespective of statutory niceties. However, we also believe that this language is consistent with the Gender Recognition Act 2015. In Ireland, transgender people can self-determine without the need to undergo medical intervention or examination. Thus, under Irish law, not everyone who can become pregnant will identify as a ‘woman’.

Note the photo is of one of Lois Weaver’s Long Tables.