An IHRL-compliant post-8th Amendment Abortion Law for Ireland. #repealthe8th

The open-access journal feminists@law has today published the general scheme of the ‘Access to Abortion Bill 2015; a piece of model legislation drafted by a group of feminist academic lawyers and intended to regulate abortion in Ireland after repeal of the 8th Amendment.

The authors are: Mairead Enright, Fiona de Londras, Vicky Conway, Mary Donnelly, Ruth Fletcher, Natalie McDonnell, Sheelagh McGuinness, Claire Murray, Sinead Ring and Sorcha Ui Chonnachtaigh.

  • The model legislation is here.
  • A short paper placing it in its constitutional and statutory context is here. This blogpost draws on that paper.

The legislation was originally drafted for Labour Women, which established a Commission for Repeal of the 8th Amendment in late 2014. Part of the work of that Commission was to produce proposed legislation which could regulate  abortion in the event that the 8th Amendment was removed from the Constitution. The Commission comprised three groups: a political group, a medical group, and a group of legal experts. The authors of this paper are those legal experts. Although drafted as part of the Labour Women Commission, and with some (limited) input from the other Commission groups, the proposed draft is that of the authors of this paper (working within the confines of our remit as ‘legal experts’ to the Commission) and not of the Labour Party or of Labour Women. It has not been adopted by the Labour Party or by Labour Women.

In drafting, we were guided by four principles.

  • First, and perhaps most importantly, we were determined to design a law that would regulate abortion in Ireland by primary reference to the bodily integrity, welfare, agency, autonomy and self-determination of pregnant women while still recognising a public interest in preserving foetal life where possible, with the pregnant woman’s consent. By achieving this, we hoped to express a legislative commitment to no longer viewing a pregnant woman’s body as the mechanism by which the State fulfils its perceived responsibilities towards the foetus, but rather as the body of a woman who maintains her agency and her constitutional rights notwithstanding her pregnancy. In that sense, we proposed a piece of law, which would aim to be transformative, to a significant degree, of the prevailing discourse around Irish abortion law. The point is not that we think foetal life is unimportant. Rather, we wanted to show what woman-centred abortion legislation would look like in an Irish context.  To that end, we inserted key Guiding Principles in Head 3 that should be applied whenever the legislation is being interpreted or applied. These radically shift the approach to abortion from that the status quo. Head 3 provides:

(1) Access to abortion is guaranteed in accordance with the provisions of this Act.

(2) In making any decision under the Act, or in providing medical care and services under this Act, the Heads shall be interpreted in the manner most favourable to achieving positive health outcomes for the pregnant woman, and to the protection of her rights, including the rights to:

a. life;
b. freedom from torture, cruel, inhuman and degrading treatment;
c. bodily integrity and autonomy;
d. self-determination, including the right to informed decision-making in relation to medical treatment;
e. private and family life, including the right to privacy;
f. health, including the right of access to appropriate health-care in a safe, prompt and timely fashion, and the right of access to healthcare information.

(3) Access to abortion services will not be impeded because of race, sex, religion, national, ethnic or social origin, disability, HIV status, marital or family status, immigration status, sexual orientation, age, birth or other social status.

(4) Sustaining embryonic and foetal life in pregnancy is an important social role, which should be voluntary and consensual.

That said, this is not pro-choice legislation in the ‘free safe and legal’ mould, not because the authors are not pro-choice (we are), but because we were drafting for the Labour Party, which is not, as yet, committed to providing free, safe and legal abortion after repeal of the 8th Amendment. (The explanatory notes to the draft legislation highlight points at which we feel the legislation may be too conservative). Bearing in mind the restrictions entailed in drafting abortion legislation for a political party in Ireland at the time, we strayed beyond mainstream political consensus to the extent that we felt European and international human rights law clearly enabled us to do. As such, we suggest that our draft law may represent a useful yardstick against which to measure later legislative proposals by a future Irish government.

  • Second, the proposed law designates grounds for abortion which, to a significant degree, challenge the mainstream consensus on what a new Irish abortion law should contain. Politicians advocating for reform have tended to accept that a new law should permit abortion not only on grounds of risk to the life of the woman, but on the grounds that the pregnancy has come about through incest or rape, or that the foetus is incapable of surviving outside the womb. There is also some agreement that abortion should be available on a limited ‘health’ ground – certainly one which would reassure doctors that they could act to end the pregnancy of a seriously ill woman whose life is not at risk. Our proposed grounds go somewhat beyond such mainstream consensus. In particular :
    • we do not provide for a separate rape ground, in order to avoid any suggestion that a woman should be required to prove that she has been raped or to participate in any criminal process;
    • we provide for two health grounds: a simple one applicable in early pregnancy, and a requirement to prove severe or disabling damage to health in later pregnancy and
    • we do not confine the foetal anomaly ground to situations in which the foetus is certain to die within the womb if the pregnancy continues.
  • The proposed law aims to enshrine an approach to medical practice that replaces pro-natalist paternalism with a welfare orientation, seeing the pregnant woman as the patient and abortion as a medical procedure. This is intended not only to nudge a reorientation of Irish maternal medical practice, but also to empower medics to follow the course of medical treatment that they believe is best for their primary patient (i.e. the pregnant woman) as determined by doctor and patient together.
  • We were concerned that the legislation should ensure—to the extent possible—that abortion is actually available in practice, while also respecting the deeply held convictions of members of the medical profession and of the public in respect of the status of the ‘unborn’.This was of fundamental importance. It is quite clear that the legal availability of abortion can be frustrated by harassment, unregulated conscientious objection, and failure to provide services. In order to try to achieve this we focused on three areas: conscientious objection, provision of services and protection of locations in which services are provided, and review of negative decisions as to the availability of abortion in any particular case.

We have published our proposals on an open-access basis for discussion, debate and development by all interested parties.

An IHRL-compliant post-8th Amendment Abortion Law for Ireland. #repealthe8th

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