Draft Safe Access Zones Bye Law

This is a work in progress. For further information email lawyers4choice@gmail.com

 

X City/Council Council Safe Access to Abortion Services Bye-laws 2019

 

WHEREAS [Name of Council] is of the opinion that it is desirable in the interests of the common good of the local community within its functional area and for the purpose of ensuring safe access to abortion services, and that Bye-Laws should be made for this purpose.

 

NOW [Name of Council], as local authority for its functional area (being [X]) (hereinafter called “the Council”) in exercise of the powers conferred on it by section 199 of the Local Government Act 2001 hereby makes the following bye-laws for the regulation and control of [describe exclusion zones – talk about control of activity/suppression of nuisance] hereinafter described which are situated within its functional area.

 

1.Title

 

These bye-laws shall be known as the X City/Council Council Access to Healthcare Bye-laws 2019

 

 

2. Scope of Applicability

 

These Bye-laws shall apply to the premises specified in Schedule 1 [can limit by time e.g. during working hours]

 

 

3. Commencement

 

These bye-laws shall come into operation on the [date]

 

4.  Previous Bye-Laws

 

[Repeal any conflicting bye-laws]

 

5. Interpretation

In these bye-laws unless the context otherwise requires, the following words and expressions have the meaning hereafter respectively assigned to them, that is to say

 

“Authorised person” means an authorised person within the scope of s. 204 of the Local Government Act, 2001

 

“Abortion services” means lawful services for the termination of pregnancy in accordance with the provisions of the Health (Regulation of Termination of Pregnancy) Act, 2018.

 

“Healthcare facility” includes a hospital, health centre, clinic or general practitioner’s office.

 

“Service provider” means a person who works at a healthcare facility, or who provides, or assists in the provision of, abortion services in accordance with the provisions of the Health (Regulation of Termination of Pregnancy) Act, 2018.

 

6. Authorised persons

A person shall comply with any and all directions given to him/her by an authorised person.

7. Prohibited Behaviour

A person must not engage in prohibited behaviour within 150 metres from the outer edge of a healthcare facility.

For the purposes of these bye-laws, ‘prohibited behaviour’ shall include:

(i)  continuously or repeatedly observing a service provider or other person accessing a healthcare facility.

(ii) continuously or repeatedly observing a healthcare facility.

(iii) persistently requesting that a service provider refrain from providing, or assisting in the provision of abortion services.

(iv) engaging in threatening conduct directed at the service provider or a person known to them.

(v) advising or persuading, or attempting to advise or persuade, a person to refrain from accessing abortion services.

(vi)  besetting, harassing, intimidating, interfering with, threatening, hindering, obstructing or impeding a person who is attempting to enter a healthcare facility.

(vii) informing or attempting to inform a person of issues relating to abortion services.

(viii) communicating disapproval of abortion services.

(ix) in any way recording a service provider, or a person accessing, or attempting to access a healthcare facility without that person’s consent, or publishing or distributing a recording so obtained, except in discharge of police duty.

(x) recording information about  a person accessing, or attempting to access a healthcare facility without that person’s consent, or publishing or distributing information so obtained, except in discharge of police duty.

(xi) engaging in distressing behaviour that can be seen or heard by a person accessing, or attempting to access a healthcare facility.

(xii) distributing or displaying any leaflets, pamphlets, notices, advertisements or other documentation relating to abortion services.

(xiii) affixing bills, posters or stickers relating to abortion services upon any wall, door, pole, structure, vehicle,
floor or pavement or on any surface forming part of, or used in relation to the healthcare facility.

(xiv) conducting or taking part in public meetings, demonstrations or processions relating to abortion services.

8. Offences

(i) An authorised person or a member of An Garda Síochána may take appropriate action to enforce these bye-laws.


(ii.) Any person who contravenes a provision of these bye-laws or who obstructs or impedes or refuses to comply with a request of an authorised person or member of An Garda Síochána made in the course of enforcing compliance with the provisions of these bye-laws shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €1500.

(iii.) Where an authorised person or member of An Garda Síochána has reasonable grounds for believing that a person is or has contravened a provision of these bye-laws, or is acting in breach of the terms of a permit granted under these bye-laws, he/she may serve a Notice on such person stating that prosecution of such contravention shall not be instituted if payment of €75 is made to the Council within twenty-one days of the date of service of the Notice.

(iv.) If the contravention of a provision of a bye-law is continued after conviction, the person causing the contravention is guilty of an offence on each day on which that contravention continues and is liable on summary conviction for each such offence to a fine not exceeding €100 or such lesser amount as may be specified in the bye-law in respect of such contravention.

(v.) An authorised person or member of An Garda Síochána may request any person who appears to be contravening or to have contravened a provision of these bye-laws to refrain from such activity and may remove any person failing to comply with such request.

(vi) Where an authorised person or a member of An Garda Síochána is of the opinion that a person is committing or has committed an offence to which these bye-laws relate, he/she may demand the name and address of such person and if that demand is refused or the person gives a name and address which is faulty or misleading that person shall be guilty of an offence.

(vii.) An authorised person or member of An Garda Síochána may issue on-the-spot fines for breach of the bye-laws.

(viii) Pursuant to Section 204(3)(d) of the Act where a member of An Garda Síochána is of the opinion that person is committing or has committed an offence under these ByeLaws, that member may arrest the person without warrant.

9. Fixed Payment Notices

(i.) The Council may, as an alternative to prosecution, serve on a person alleged to have contravened any of these bye-laws, a notice specifying a fixed payment to be made in respect of such contravention.

(ii.) The amount of the fixed payment will be €75 or such different amount as may be so prescribed at the date of the alleged contravention.
(iii.) The said amount shall be paid within a period of four weeks from the date of service of the said notice.
(iv.) If the contravention of a provision of a bye-law is continued after conviction, the person causing the contravention is guilty of an offence on each day on which that contravention continues and is liable on summary conviction for each such offence to a fine not exceeding  €100 or such lesser amount as may be specified in the bye-law in respect of such contravention.

Review

(i.) The operation of these bye-laws shall be reviewed within twelve months and will be revised by the Council as considered appropriate at that time.

 

 

Notes on Regulating Rogue Counsellors: Options for Reform

Rogue crisis pregnancy agencies are an anti-choice guerrilla strategy.  They are generally not medical facilities, but rather Christian ministries which attempt to dissuade women from obtaining an abortion. They attempt to obstruct or delay women’s access to abortion through misinformation. Although Irish law closely regulates abortion service provision and counselling (including payments to counsellors under s. 25, HRPTA), rogue crisis pregnancy agencies are not regulated or criminalised in the same way, in part because they do not receive public funding. They have never been legally required to provide non-directive counselling.  It is a crime to “aid, abet, counsel or procure a pregnant woman” to obtain an illegal abortion (s. 23, HRTPA). The Minister for Health explained that this provision is intended to prevent coerced illegal abortion (though its application is much broader than that). By contrast, it is not a specific offence under the HRTPA to mislead or intimidate an individual in order to obstruct their access to an illegal abortion.

Registered counsellors are now regulated under the Health and Social Care Professionals Act 2005, and many crisis pregnancy counsellors are members of other registered professions. A person who is not a registered counsellor for the purposes of the 2005 Act commits an offence under s.79(4) if s/he uses that title with intent to deceive another person. Crisis pregnancy centres whose staff do not claim membership of any registered professions are not affected by this Act.

There are three main approaches to regulating anti-choice crisis pregnancy agencies:

  • The state could create a general offence of obstructing access to legal abortion, like those in South Africa or France, which could cover many of the activities of anti-choice crisis pregnancy agencies.
  • The state could specifically prohibit dissemination of misleading or false information in a crisis pregnancy context. The remit of the Advertising Standards Authority in Ireland is confined to commercial activities. Complaints about rogue crisis pregnancy services have been upheld by the UK Advertising Standards Authority.  It is possible to draft legislation which would promote transparency in the advertising of pregnancy counselling services. An example provision is s. 5 of the Pregnancy Counselling (Truth in Advertising) Bill 2006. This Bill failed to pass in Australia for want of political support. Another possibility, demonstrated by model legislation from the American Public Leadership Institute, is to criminalise the behaviour of some rogue crisis pregnancy agencies as fraud. General consumer protection law e.g. the Consumer Protection Act 2007, is of no use here because it only applies to ‘commercial practices’  carried out in the course of a business, trade or profession, and rogue counsellors are not run for profit.
  • The state could use a mandatory disclosure law to regulate counsellors or persons holding themselves out as counsellors, and offering crisis pregnancy services. Laws of this kind require anti-choice agencies to disclose their anti-abortion status directly to clients, using a statement like: “This service does not provide referrals for terminations of pregnancy”. This could be done on websites, leaflets or in clinic premises. An example provision is s. 6 of the Australian Pregnancy Counselling (Truth in Advertising) Bill 2006.  Some cities in the United States have also attempted to require rogue clinics to inform patients of the availability of other services, but these laws have had little success before the courts. Recently, in National Family and Life Institutes v. Berecca, a bare majority of the United States Supreme Court held that it was unconstitutional for a state to require anti-choice clinics to publish specific notices (i) informing clients that they did not provide abortion care  and (ii) telling them about state services for termination of pregnancy for low-income women. This was in part because the state did not make any similar requirements of pro-choice clinics, and did not take full advantage of other options for advertising its services to women. Although laws of this kind have had little success in the United States, given its stringent protection of free speech and lack of attention to the rights of pregnant people, they may have more success in Ireland.

It is ultimately the state’s responsibility to ensure that women have access to clear, objective and truthful information on abortion. However, anti-abortion activists can readily circumvent government information campaigns. Careful and legal grassroots documentation of these practices, such as https://www.exposefakeclinics.com/ may also be valuable tools in the battle against misinformation.

This note was prepared by Mairead Enright. It is a work in progress. Corrections/additions are welcome.

A Note on Exclusion Zones: Possibilities for Reform

The Health (Regulation of Termination of Pregnancy) Act, 2018 (HRPTA) makes no provision for exclusion zones to prevent protests at locations where abortions are provided. However, exclusion zone legislation is expected to be introduced this year. This note explains some options for reform.

Exclusion zones are also called safe access zones, safety zones, or buffer zones. They are designed to criminalise behaviour outside healthcare premises which is intended to, or is likely to, deter people from accessing abortion, undermine their privacy, or prevent them from entering the premises at all. United Nations bodies have recommended that states should take measures to prevent violence, harassment and obstruction of women seeking access to termination of pregnancy services and facilities.

Exclusion zone laws usually designate the dimensions of an area (e.g. 100 metres from a clinic entrance in all directions) within which certain behaviours are forbidden. Relevant behaviour may include protest, display of graphic images, attempted on-street pregnancy counselling, “vigils”, recording people entering a building, surveilling a building or its staff, approaching people trying to enter a building or blocking their way, or public prayer.

Exclusion zone laws are in effect in parts of Canada (at provincial and local government level), parts of Australia and some of the United States. The Isle of Man’s new abortion legislation (not yet in force) also provides for safety zones.

In the UK, in a widely-criticised decision, the Home Secretary recently declined to legislate for exclusion zones, despite ample evidence of the impact of clinic protest on women. Instead, local authorities have narrow, time-limited powers to grant public space protection orders in respect of individual affected clinics under the Anti-Social Behaviour, Crime and Policing Act 2014. This was first done in the London Borough of Ealing.

Jurisdictions tend to introduce exclusion zone legislation where other approaches prove inadequate to protect legal rights to access healthcare. In New Zealand (which has a more conservative abortion law than Ireland) the Law Commission explains that it has not recommended exclusion zones for this reason. At the moment, there is no specialised Irish law which can effectively tackle protest outside buildings where abortion services are provided.

  • The Criminal Justice (Public Order) Act 1994 is not an effective means of preventing anti-choice obstruction of access to care.  Section 7, which regulates display of offensive material has already proven ineffective to address display of graphic abortion imagery outside maternity hospitals. Other provisions under the Act are targeted at violent or provocative behaviour, and so are unlikely to catch more restrained activities – for example, silent or polite protest – which may nonetheless be hurtful, obstructive and intimidating.
  • The law on harassment is only useful to catch repeated targeting of one individual by another. So, while it might be useful to doctors or employees who encounter the same protestor every day, will not be helpful where a patient is targetted during one or two visits to the same healthcare premises.
  • Some years ago, the IFPA obtained an injunction against militant anti-abortion protestors, and Canadian courts have granted injunctions in similar cases. Injunctions are granted in response to past behaviour – and the test for obtaining a permanent injunction is reasonably demanding. And, even if injunctions can be obtained in individual cases, this route is obviously expensive and burdensome. The number of affected locations (especially given the role of primary care providers in the provision of services and the potential for protest at their homes) and the number of potential protestors may also pose challenges.
  • Arguably the law on nuisance could be also used to control some kinds of ongoing loud or disturbing protest, but again this is a limited avenue.
  • The offence of coercion under s. 9(1) (d) of the Non-Fatal Offences Against the Person Act 1997  may also apply in cases where a person “with a view to compel another to abstain from doing or to do any act which that other has a lawful right to do or to abstain from doing, wrongfully and without lawful authority” (a) uses violence to or intimidates a woman or (d) “watches or besets the premises or other place where that other … works or carries on business, or happens to be, or the approach to such premises or place”.
  • Finally, a garda may issue a verbal or written behaviour warning under the Criminal Justice Act, 2006 if one person subjects another to behaviour which causes or is likely to cause “significant or persistent alarm, distress, fear or intimidation”. This is the first step in applying for a temporary civil anti-social behaviour order, if the behaviour persists.

Many policy-makers think that the key issue here, as the Taoiseach has recently acknowledged, is the balance to be struck between protecting access to premises (and service provision, given the deterrent effect of protests) and protecting freedom of protest, assembly, political expression and perhaps religion in public space. It is generally accepted that the right to freedom of protest can be restricted in the interests of public order and morality, including to protect the rights of others (see e.g. Van den Dungen v. Netherlands)The point is not that some viewpoints must be silenced, but that some methods of expressing those viewpoints cannot be permitted.

The legal question, on this framing, is essentially whether the exclusion zone is a proportionate means of achieving the government’s aims. The balance to be struck is sometimes controversial. The Australian High Court is expected to give judgment soon on the constitutionality of exclusion zones in Tasmania and Victoria. By and large, however, as the Center for Reproductive Rights has noted, courts have upheld measures of this kind. The recent English High Court decision in Dulgheriu v. Ealing  suggests that issues to consider in striking the balance may include:

  • The forms of harm and intimidation which anti-abortion activism may cause to people seeking to access abortion services, doctors, employees and others accessing, passing by or living near the healthcare facility. These issues have been considered by the European Court of Human rights in Annen v. Germany (2015) and (2018), (unfortunately with an emphasis on doctors’ rights rather than on the rights of both doctors and patients).
  • The size and location of the zone e.g. within 150 m of the entrance to a doctor’s home. Some U.S. states employ ‘bubble zones’  or ‘floating’ buffer zones, where the distance is calculated from an individual, such as a staff member or a patient. Bubble zones may be used instead of or in addition to exclusion zones. In the Isle of Man, safety zones will not be attached to buildings by default, but will be established at health providers’ request.
  • The specific activities to be prohibited within the zone.  An exclusion zone which, for example, prohibits simply standing on the street near a healthcare facility where abortions are carried out would probably be too broad. (This was one reason why the Massachusetts Freedom of Access to Clinic Entrances Act was struck down by the US Supreme Court in McCullen v. Coakley for violation of the U.S. constitutions very broad freedom of speech guarantees. More narrowly-drawn buffer zones were upheld in  Hill v. Colorado; Madsen v. Women’s Health and Schneck v. Pro-Choice Network.) In principle,  an exclusion zone could apply to both anti-abortion activity and pro-choice counter-protests.
  • Whether the operation of the zone will be reviewed regularly.
  • Whether those who would wish to engage in protest, or in conversation with service users will have an alternative effective means of exercising their freedom of expression. In R v. Spratt, the British Columbia Court of Appeal accepted that an exclusion zone is not invalid simply because it captures some forms of peaceful anti-abortion protest, or deprives anti-abortion activists of a captive audience.
  • Whether the state can use less restrictive methods than an exclusion zone; for example criminalising individuals’ actions, or protecting locations which are at particular risk rather than imposing exclusion zones at all relevant premises. (This was another reason why the Massachusetts buffer zone law was struck down in McCullen v. Coakley.)
  • The powers and practical capacity of An Garda Siochana and other security personnel to enforce those zones (e.g. arrest as a last resort).

Instead of exclusion zones, some jurisdictions provide for tailored individual offences of obstructing access to abortion, or obstructing access to premises where abortion is provided. These include South Africa (s. 10(c) of the Choice, Termination of Pregnancy Act), France (under the Public Health Code) and some U.S. states. U.S. law is quite varied and ranges from broader prohibitions on intimidating or noisy behaviour outside clinics, to narrower bans on directly blocking entry to a clinic. While these measures provide more space for protest, they may be inadequate to protect pregnant people. We have already seen, from garda refusal or inability to enforce s. 7 of the Criminal Justice (Public Order) Act against the Irish Center for Bioethical Reform, which displayed graphic foetal imagery on the streets and in front of maternity hospitals during the referendum, that offences which depend on evaluation of individual behaviour and intentions may be difficult to enforce, especially in politically contested contexts. They are reactive, not proactive.  They may also be also an inadequate response to organised anti-abortion activism, whereby when one activist is punished, another can simply take their place. A safe access zone, by contrast, lends clarity and certainty to the question of demonstrations and activism at health facilities. Individual offences of obstructing access to abortion may be useful for other purposes, but are not a real substitute for an exclusion zone.

Legal protections of this kind for people needing to access abortion and their doctors are both permissible and necessary. The policy decision facing the Oireachtas now is about how substantial those protections should be. In July we recommended that the Oireachtas provide for exclusion zones. Some of our academic members have previously written in support of exclusion zones along Australian lines. Prohibited activities should not be confined to acts of violence, ‘obscenity’ or efforts to directly obstruct access to a healthcare facility by impeding individuals’ free movement, but should also include any threatening behaviour likely to intimidate or distress potential service users or disrupt employees’ working conditions. Protection should extend to those inside the facility, who can hear and see activities outside. The law should be drafted to take account of the likelihood of causing distress to those hearing or seeing the offending behaviour, irrespective of the anti-abortion activist’s stated intentions.

Note prepared by Mairead Enright. This note is a work in progress and we are happy to accept corrections/ideas, especially from those with experience of the operation of buffer zones elsewhere.

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