The General Scheme of the  Protection of Human Life Bill During Pregnancy Bill 2013 was published last night. The General Scheme is not a draft Bill but it gives us a sense of the likely content of the Bill and of the rationale for the proposed provisions. This is a quick overview of some of the most important questions which it presents, with links to the answers which we have provided on this blog in previous posts. Other members of HRinI may add to this with their own observations in the coming days. Your comments and questions are very welcome.

Have the Floodgates Opened? No. This is legislation for X, 21 years later. It is not a revolutionary Bill. Beyond the Scheme, abortion – whether procured by a doctor or by the woman herself – remains a criminal offence, albeit the penalty will change from life imprisonment to a fine or a maximum 14 years in prison. The proposed Bill does not, and indeed as Laura Graham and Fiona de Londras explained,  cannot extend Ireland’s abortion scheme beyond the scope of X. The Scheme emphasises that it applies only to the minority of cases. The Scheme makes significant provision for recording and reporting the basic details of terminations carried out under it, which will lend welcome transparency to this area of law. Abortions will not be permitted in Ireland in cases where there is a risk to the physical or mental health of the mother eg as might happen in cases of incest, rape, or the non-viability of the foetus. Women in that position will be at the mercy of the ‘constitutional right to travel’. Arguably, the proposed legislation does not go to the full extent of what is permitted by X in that it does not make provision for the termination of pregnancy where the foetus is not viable. On the possible justifications for including such a provision see Ivana Bacik here and Jennifer Schweppe and Eimear Spain here.

Will the Legislation Affect Assisted Reproduction? The Bill suggests that the Government is willing to provide a legislative definition of ‘unborn’. Embryos pre-implantation do not fall within the scope of the Scheme. ‘Unborn’ includes a foetus in the process of being born, and no term limits are included.

How Many Doctors Will Be Involved in Clinical Assessment? Appropriate clinical assessment triggers the constitutional right. One doctor may provide an abortion without further permissions from colleagues if the mother’s life is at immediate risk and an abortion is immediately necessary to save it.  Otherwise, a woman may refuse an abortion, but she cannot obtain one without the permission of multiple doctors. Where there is no immediate risk to life, the woman who obtains an abortion under the proposed scheme will have been examined and certified by multiple doctors; 2 (an obstetrician/gynecologist and one other of a relevant clinical speciality) where the mother’s life is at risk due to physical illness and 3 (one obstetrician/gynecologist and two psychiatrists) where the risk arises from the mother’s suicidal intent. GPs will be consulted but will not have decision-making powers. The doctors must jointly certify their opinion. The Taoiseach today said that they must be ‘unanimous’, which raises issues as to whether a single doctor of two or three can effectively block access, compelling the woman to appeal or – if she is able – seek termination elsewhere.

What About Suicidal Women? Suicidal women are to be included in any legislation, despite opposition from within Fine Gael. As  Fiona argued here,  the Oireachtas cannot exclude suicidal women from the legislation and still meet its constitutional obligations.  (See Paul Brady here for a counter-argument). However, suicidal women are to be subjected to a separate scheme to women whose life is at risk for purely physical reasons. Fiona explained why this is unjustifiable here.  Clare Murray explained here. that the provision for multiple doctors to ‘certify’ the risk to life is unusual and controversial even a mental health context (and of course, this legislation will apply to women who are not mentally ill), but the Taoiseach seems convinced of the need for a demonstrably more rigorous standard given the ‘subjective’ nature of the assessment of suicide risk. The mooted requirement for the involvement of perinatal psychiatrists has been removed. The application of this scheme could subject the woman to multiple examinations as it is not required that the three doctors examine her together or at the same location. The Scheme leaves it to the professional bodies to provide guidance on standard medical practice, referral pathways and so on. Real concerns are emerging around the participation of psychiatrists in this process as one significant group of psychiatrists have refused to participate in any form of assessment panel while another minority group actively campaigned for the exclusion of suicidal women from the legislative scheme. There is, and can be, no suggestion that a woman who is not otherwise mentally ill can be detained until a decision is reached as to her entitlement to abortion.

Will this Scheme Provide Clarity to Doctors? Doctors acting as gatekeepers to a woman’s constitutional right are asked to determine ‘in good faith’ that there is a ‘real and substantial risk to the life of the mother’ and that in their ‘reasonable opinion’ that risk can only be averted by a termination. See John O’Dowd on the difficulties in assessing ‘real and substantial risk’ here. While the Scheme makes clear that an abortion is permissible even where the risk to the mother’s life is not ‘immediate’, real difficulties in applying the test remain. In a case mirroring that of Savita Halappanavar, access to abortion would still depend on medical assessment of the risk, albeit the Scheme formalises the process of assessment.  However, the Scheme explains that it would have been difficult to provide in legislation for every one of the complex and unpredictable circumstances in which a risk to the mother’s life might arise. The Department of Health will work with the relevant professional bodies in developing guidelines for members.

What if a Woman is Refused an Abortion? The HSE will establish and maintain a medical review panel to which such women may appeal. Members will be nominated by the professional bodies. Members of the panel will convene as an independent committee on a case by case basis to review refusals in cases of risk arising from physical illness and risk arising from suicidal ideation. The committee will have two members in the latter case (an obstetrician/gynecologist and a specialist) and three members (an obstetrician/gynecologist and two psychiatrists) in the former. Thus a woman who obtains an abortion in Ireland may indeed have been subject to the judgment of six doctors. This appeals process is the Scheme’s effort to establish the appeals framework needed meet the requirements of the A, B and C v. Ireland judgment. The woman may apply for an appeal herself, or it may be made on her behalf with her consent. The committee will be competent to review the reasons for the decision and the relevant evidence, and to fulfill the requirement of A, B and C v. Ireland should provide the woman with an opportunity to be heard. It shall convene within 7 days of application and reach a decision within 7 days. If a medical emergency develops such that there is an immediate risk to the mother’s life, the emergency provisions will apply and there will be no need to await the outcome of the appeal. No third party may use the scheme to challenge a decision to provide an abortion. Again, the decision must be jointly certified.

Are There Too Many Obstacles In Women’s Path? Humiliation, fear and other dignitary harms are not in themselves breaches of a woman’s European Convention Rights. What we need to look out for in the operation and enforcement of the scheme are chilling delays and uncertainty; the systemic placing of obstacles in a woman’s path to undermine her access to her rights. While the appeals mechanism indicates a 14 day time limit for decision-making, concern has been expressed about rural women’s timely access to doctors qualified to certify their entitlement to abortion under the scheme in the first place. It may be, nevertheless, that women who are entitled to abortions under the scheme will prefer to travel outside the jurisdiction rather than submit to the certification and appeals process.

Can Doctors Privilege the Interests of the Foetus Over the Interests of the Mother Under the Proposed Law? The Constitution already limits the rights of the mother by reference to those of the foetus. However, there are a number of important points here.

First, the legislation imposes a duty on medical practitioners ‘to preserve the life of the unborn insofar as possible’, and this may include efforts to deliver a viable foetus. This does not mean that doctors should adopt an attitude of hostility or skepticism in assessing the risk to the mother’s life (the ‘good faith’ decision) but it will legitimately affect doctors’ choice between abortion or other medical procedures compatible with the right to life of the mother (the ‘reasonable’ decision).

Second, a doctor may exercise the individual right of conscientious objection to participation in an abortion. I discussed this issue at length here. Under Medical Council Guidelines a doctor exercising this right should refer the patient to an alternative practitioner.  An action for abuse of this provision (for instance where a doctor did not declare his conscientious objection and refused to certify a woman without explaining that this was the reason) should lie in negligence, if appropriate harm results. It would be preferable, in my view, if the legislation made explicit provision as to conscientious objection rather than relying on the Medical Council Guidelines, which are brief and somewhat vague.

Finally , a woman refused an abortion will have a right of appeal as set out above. It is especially important that the appeals mechanism is seen to be sufficiently independent and impartial to inspire public confidence.

 

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Written by Máiréad Enright

Máiréad Enright lectures at Kent Law School. She is also a PhD candidate in the Centre for Criminal Justice and Human Rights, University College Cork. Her research interests are in gender and the law, law and religion, citizenship and the political dimensions of private law. You can contact her at M.Enright[at]kent.ac.uk or (+44) 1227 827996.