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

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