Four legal academics, Mairead Enright, Fiona de Londras, Ruth Fletcher and Vicky Conway have published a preliminary analysis of the government’s proposed abortion legislation. The full position paper is available here.
The General Scheme is designed for a post-repeal Constitution in which women’s full rights must be taken into account. Abortion legislation must be drafted and interpreted to give effect, not only to pregnant people’s right to life, but to their rights to privacy, bodily integrity, freedom of conscience, liberty, equality, and freedom from inhuman and degrading treatment. However, the General Scheme does not make a sufficient break from the legal regime shaped and dominated by the 8th Amendment, which insisted on legal equivalence between a pregnant person and a foetus.
The position paper makes a number of recommendations for (i) improvements to the General Scheme (ii) designing clinical guidance to avoid unintended ‘chilling effects’ which inhibit meaningful access to abortion care (iii) policy and resource commitments (iv) regulation of the medical profession.
Improvements to the Bill
- Residual criminalisation of abortion should be removed.
- If it is not removed (i) penalties should be reduced (ii) those who assist pregnant people in consensually ending a pregnancy should not be criminalised.
- Head 1 should include interpretative principles providing that the legislation “shall be interpreted in the manner most favourable to achieving positive health outcomes for the pregnant person, and to the protection of her rights”.
- Trans* inclusion:
- ‘Woman’ should be replaced with ‘pregnant person’ or ‘woman or pregnant person’ throughout.
- The law should adopt the WHO definition of ‘health’ in Head 1.
- Heads 4-6 should require certifying practitioners to take account of the pregnant person’s own assessment of relevant risks to her life/health, or of the severity of a foetal diagnosis.
- Abortion in Early Pregnancy
- Certification: Nurse practitioners, midwives, nurses and other qualified healthcare. professionals should be authorised to certify gestation under Head 7.
- Time limits: Head 7(5) should be removed, so that abortion is available up to 12 weeks gestation (14 weeks LMP).
- Waiting period: this should be removed.
- Refusals of abortion care including on grounds of conscientious objection should be formally notified to the Minister.
- Time limits for review of refusals under Head 13 should be reduced.
- Lawyers or other appropriately qualified persons should be included in panels for Head 13 reviews.
- The legislation should provide for an independent, human-rights-oriented review of its operation, similar to that in the Gender Recognition Act 2015.
- The legislation should stipulate remedies in cases of wrongful delay or denial of abortion care.
- Exclusion zones should be introduced outside premises where abortion care is provided.
- Distribution of misleading abortion information, including by ‘rogue’ counsellors, should be regulated.
- Display of graphic abortion imagery should be regulated.
- Head 18 should be removed.
- Drafting and Scrutiny
- Draft clinical guidance should be prepared, made publicly available for scrutiny by the Oireachtas and amended if necessary before the legislation comes into force.
- Service users, including representatives of marginalised groups should participate in drafting and scrutinising the guidance.
- Scrutiny processes should pay particular attention to issues of human rights, and to the World Health Organisation’s guidance on safe abortion.
- Guidance should clarify interpretation of the law, in particular:
- How the law will affect miscarriage management.
- How the law interacts with conflicting aspects of Catholic medical ethics, particularly, but not exclusively, in hospital settings.
- When and how a doctor who holds a conscientious objection to abortion should disclose it.
- Head 4
- That ‘serious harm’ is not a synonym for ‘permanent’, ‘protracted’ or ‘life-threatening’.
- How ‘extraordinary life-sustaining measures’ and ‘appropriate’ are to be interpreted.
- That a pregnant person refused access to abortion care in later pregnancy may not be subjected to alternative treatment which violates their constitutional rights to bodily integrity or freedom from inhuman and degrading treatment.
- Head 6
- That where the test under Head 6 is not satisfied but there is an independent risk of serious harm to the pregnant person’s health, termination under Head 4 may be lawfully permitted and should be considered.
- Head 7
- That all suitably qualified healthcare professionals, including nurse practitioners and midwives, can provide abortion care.
- That multiple appointments are not mandated.
- That onerous examinations to date pregnancy are not mandated.
- That self-administration of pills is permitted.
- That ‘as soon as may be’ should be understood as ‘as soon as practicable’.
- That, except where necessary in the interests of the pregnant person’s health, Head 7 abortion care should be provided locally.
- Guidance should detail care pathways for persons requiring special provision including people with physical and psychosocial disabilities, minors, people living in direct provision, survivors of sexual violence and people whose capacity to make medical decisions is in question.
- Capacity: Guidance should clarify how the law interacts with the law on consent for for minors and for adults with diminished capacity. Updates to the National Consent Policy may also be required.
- Interlegal issues: Guidance should clarify care pathways for pregnant people whose circumstances are also governed by other specialised legislation.
- Head 6
The Minister should clarify:
- How public information about the new law will be disseminated.
- What training will be provided for doctors implementing the legislation, and how that training will ensure rights-oriented interpretation of the legislation.
- What systems (including disclosure protocols) will be put in place for managing conscientious objection.
- What support will be available for those who still need to travel for abortion care in circumstances where Irish law does not permit it.
- What information and training will be made available to others involved in abortion decision-making; for example, those involved in assisted decision-making where a pregnant person’s capacity is in issue.
- How universal access to abortion care will be guaranteed, whether under the Mother and Infant Care scheme, the new Regulation of Termination of Pregnancy Act, or an alternative scheme.
The Medical Council, and other relevant professional bodies, should clarify:
- What disciplinary measures will be taken where a doctor who holds a conscientious objection to abortion refuses to refer patients as required by Head 15(3).
- What steps will be taken to discourage abuses of conscientious objection.
- What disciplinary measures will be taken where a doctor wrongfully refuses abortion care under the Act.