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 Now that the amendment has passed and the Eighth Amendment has been replaced by the Thirty-Sixth Amendment, the Oireachtas has an important opportunity to build on the internationally recognised deliberative processes that facilitated the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

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