"An Escape Route from the Absolute": Summary of Today's Joint Committee on Health and Children Hearings on Abortion.

The Joint Committee on Health and Children has been holding public hearings on “the Implementation of the Government Decision following the publication of the Expert Group Report into matters relating to A, B, C, vs Ireland”. You can find the Expert Group Report, published in November, here. The transcripts of the public hearings are available here and you can view recorded proceedings on the Oireachtas Youtube channel.

The Committee heard evidence from medical experts yesterday, and heard evidence from legal experts,  including HRinI’s Jennifer Schweppe, today. Representatives of the churches and advocacy groups will be heard tomorrow.  A number of important legal arguments have been raised before the Committee, including some which would not only clarify the scope of the X ruling, but legislate on the basis of a relatively liberal interpretation of X and its progeny. HRinI will host a blog carnival on abortion and Irish law in the coming weeks. For now, you can find a range of materials connected to the hearings after the break.

Some of the submissions made to the Committee by those who spoke before it today are available online:

  • Jennifer Schweppe’s submission, which explains her argument that Article 40.3.3  of the Constitution already allows for the abortion in Ireland in circumstances in which the foetus, for reasons of fatal abnormality, is not capable of surviving outside the womb, even for a finite and brief period. (This argument has raised the question of whether  e.g.  the parents represented by TMFR Ireland should have been able to access terminations in Ireland. However, it is worth reading this section of Jennifer’s submission – derived from an analogy with pre-implantation embryos in Roche v. Roche,  and a somewhat self-serving government argument in D v. Irelandcarefully. The first three speakers were agreed today that  Article 40.3.3 confers rights on the foetus which will survive even for a few moments outside the womb, even if, as Simon Mills put it, it will essentially be born only to suffer and die.) Jennifer also raised important questions around young people’s access to abortion; the position of children in care and teenagers’ capacity to consent to medical treatment, particularly where their parents would not wish to consent on their behalf (see the Law Reform Commission’s 2011 Report)
  • Simon Mills’ written submission, which includes his Draft Termination of Pregnancy Bill. The Bill, as Mills puts it, would essentially restate and consolidate the existing law. It would not allow for the destruction of a foetus which was mature enough to survive independently outside the womb. However, it would allow for termination of pregnancy in any one of 4 circumstances (this is a useful, wide reading of X which rarely sees the light of day):
    • where the termination arises indirectly as a consequence of other medical treatment necessary to save the woman’s life.
    • where the X ‘risk to the life of the mother’ criteria are met, including cases of threatened suicide.
    • where a woman is experiencing an inevitable miscarriage which is not amenable to treatment, and allowing the miscarriage to continue would pose a threat to either her life or her health (the Savita Halappanavar type scenario).
    • where the foetus has been diagnosed with an abnormality which is incompatible with life outside the womb.
  • Alan Brady’s submission on behalf of the ICCL, which explains the ICCL’s argument that a violation of Article 3 ECHR may arise in certain circumstances, if a woman who is carrying a non-viable foetus is hindered in obtaining an abortion. The argument is based on a reading of  RR v. Poland and P and S v. Poland . In discussion, he also discussed the importance of ensuring that procedures put in place to regulate abortion (options are set out in the Expert Group Report) were not so cumbersome that women entitled to abortions under Article 40.3.3 could not access them in a timely fashion.
  • Ciara Staunton’s opening statement
  • William Binchy’s and Catherine McGuinness’ submissions do not appear to be online, but their contributions are reproduced in the transcripts. They are interesting, less for what they say about the content of the law, but for their engaging discussion of the relationships between the law and the political process, and between law and social change (the “floodgates” argument). Essential reading for any law student.

A number of other submissions made by organisations and individuals are also available online. Please alert us to others in the comments.

The Committee are accepting submissions until Friday morning at 10am. Instructions on how to make a submission are here.

"An Escape Route from the Absolute": Summary of Today's Joint Committee on Health and Children Hearings on Abortion.

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