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.

 

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