Irish women are still travelling to England to terminate their pregnancies. Meanwhile, the legal fallout of the Eighth Amendment mounts up. At the inquest into the death of Savita Halappanavar in Galway last week, a senior midwife manager explained how she had come to make the ‘Catholic country’ remark which, in the words of the coroner ‘went around the world’. “I was trying to explain this is Ireland”, she said. The Irish Times reports:
“It was not said in the context to offend her. I’m sorry how it came across. It does sound very bad now but at the time I didn’t mean it that way,” she said.“It was the law of the land and there was two referendums where the Catholic church was pressing the buttons.”
She said it was more to give information and to throw light on Irish culture[…]
Ms Burke said Ms Halappanavar knew a termination was against the law. She, Ms Burke, felt her back was against the wall and had to say something. “I shouldn’t have said it but it came out the wrong way.” It was a chat and had nothing to do with the provision of care, she told the inquest today.
Praveen Halappanavar has thanked Ms Burke for her statement. It has come as a surprise that her remark was not made in the context of a direct conscientious refusal to participate in an otherwise legal termination of pregnancy. We might wonder how easy it really is to draw the line between a formal demand for a conscience exemption, and the informal undisclosed – and therefore unregulated – tug of individual or collective habits of conscience in the context of medical decision-making. This protracted, uncomfortable, deeply gendered and raced encounter between Ms Burke and the Halappanavars reminds us that the intersections of law, medicine and conscience (what Ms Burke called ‘Irish culture’) are more complex than often appears from the public debate. There is more to the entanglement of law, Catholicism and agency than we can comfortably stuff in the box marked ‘Youth Defence’. There is an ethical question about the ways in which a single practitioner comes, ‘back to the wall’, to induct a patient into an entire culture of conscience; its suspicions, silences, compromises and coping mechanisms. And there is another about the terms on which individuals – perhaps especially women – take up the burden of easing the state’s wrongdoing: how do we understand the legitimatory relationship between words of comfort or excuse and the violent enforcement of a law which apparently requires women to ‘enter the antechamber of death before they can be snatched back from the brink‘?
As the Government has announced that it will publish the ‘Protection of Maternal Life’ Bill to legalise abortion in certain circumstances between now and the summer break it may be time to look at one law-and-religion question which law reform can simplify, if not answer. We need to start to think about the formal legal relationship between religious conscience and abortion in Ireland. The debate here usually focuses on religious medical professionals’ conscientious refusals to perform abortions, though of course, medical professionals might also be moved to perform an abortion for reasons of conscience and though, of course, religious believers may be divided as to what conscience requires in a particular case.
The basic philosophical issues presented by claims of conscience are set out by Kent Greenawalt here and this useful resource from the Essex Human Rights Centre outlines the international legal position. From a human rights perspective, the key point is that individual claims of conscience must not be allowed to nullify access to essential medical treatment (bearing in mind that access may already be precarious because of other systemic factors). For an idea of the varying difficulties caused by conscientious objection across a range of European jurisdictions see here. The European Court of Human Rights has emphasised (most recently in P and S v. Poland) that States are required to organise their health system in such a way that the effective exercise of freedom of conscience by medical professionals does not prevent patients from accessing the services to which they are entitled under legislation.
As things stand, two draft bills are in the public domain which, although they have not attracted Government support so far, give us a hint of the future Irish approach to a conscience clause. Both s. 5 of the Medical Treatment (Termination of Pregnancy in Case of Risk to Life of Pregnant Woman) Bill 2012 championed by Clare Daly TD, and s. 13 of the Draft Termination of Pregnancy Bill submitted to the Oireachtas Committee on Health and Children by Simon Mills BL contain suggested conscience clauses. Readers may remember the debates about the possible inclusion of a conscience clause in the Civil Partnership Act. (For a discussion of the constitutional issues raised, see Eoin Daly on this blog). The Irish draft Bills raise 4 key questions:
Can a Doctor/Nurse/Midwife Refuse to Participate Directly in the Termination of a Pregnancy?
We know from the Oireachtas Abortion Hearings that doctors do perform a small number of abortions in Ireland every year, as well as referring women for terminations abroad. Other doctors, such as Dr. Mary McCafferty, have expressed their objection to participating in abortion procedures. Recently, the IMO has repeated its position against reform of Irish abortion laws. The Draft Bills seek to provide for circumstances in which a doctor might refuse to perform a termination for reasons of conscience. This has been a significant problem in other European countries. For instance, in 2010 it was reported that some 70% of Italian gynecologists refused to perform abortions; rising to over 80% in some parts of southern Italy.
Both Bills provide for a right, in principle, to refuse to participate in the termination of a pregnancy. But both Bills distinguish between emergency and non-emergency situtations. s. 5(1)(b) of Clare Daly’s Bill requires a medical practitioner to directly participate in termination of a pregnancy if it is immediately necessary to save the life of the mother and no other competent medical practitioner is available to carry out the procedure. To similar effect, s. 13(2) of Simon Mills’ Bill restates the duty of a doctor, nurse or midwife to participate in any treatment necessary to save the life of a pregnant woman.
This approach seems somewhat stronger than that taken by the Medical Council, whose 2009 Guidelines simply provide that conscientious objection does not absolve a doctor of her duty to her patients under emergency circumstances. At the Oireachtas Abortion Hearings the IMC argued that no special procedures were required for emergency cases, and reiterated its position that the right to conscientious objection must be balanced against the rights of the mother.
The Daly and Mills approach reflects s. 4(1) of the Abortion Act 1967, which regulates abortion provision under English law. This section allows health professionals to opt out of participating in abortion procedures on the basis of conscientious objection. However, s. 4(2) provides that a doctor may not rely on the provision in cases where the abortion is necessary to save the life of the woman, or to prevent grave injury to her physical or mental health. Of course, unlike the 1967 Act, the proposed Irish legislation will only allow for abortion in ‘X-type’ circumstances, so that a doctor must refuse a termination unless it is necessary to save the woman’s life.
Irish women are also entitled to abortions even where their life is not at immediate risk. A doctor or other professional might ask to be exempted from involvement in a termination in such non-emergency circumstances. Then three further questions arise:
What are the Duties of a Doctor Who Refuses to Terminate a Woman’s Pregnancy?
S. 5(1)(b) of Clare Daly’s Bill requires a medical practitioner who refuses to treat a woman to refer her/transfer her to the care of another medical practitioner who is competent and readily available to perform the treatment. This also reflects the English position. In Barr v. Matthews the plaintiff patient argued that Dr. Matthews had wrongly determined that she was not legally entitled to an abortion or had used undue influence to dissuade her from terminating the pregnancy, and that Dr. Matthews had been influenced in these respects by her Christian beliefs. The Court did not address this argument, but held that once termination had been recognised as an option, Dr. Matthews should have referred the patient to another colleague at once. To similar effect, the 2009 Medical Council Guidelines provide that ‘Ordinarily, a doctor who objects to providing a particular course of treatment him/herself must inform the woman of that fact, and must make the names of other doctors available to her’. It would seem sensible to enshrine that policy in future legislation so that an objecting doctor faced with a ‘X type’ case would have a clear obligation to cede any decision-making powers in respect of abortion to a colleague who did not share her objection. That sort of provision, however, may not remove what Robin Fretwell Wilson calls the ‘dignitary harm’ which the direct communication of refusal may do to the patient. We also need to think about the organisational dynamics of medical institutions, and the possible obligation of a medical practitioner to inform her employer of her conscientious objection in advance, so that staffing decisions can be taken around her (and issues of workplace discrimination addressed). In Britain, BPAS have argued that women should be allowed to refer themselves directly to abortion providers, to avoid an unnecessary confrontation with a refusing doctor.
Must A Doctor Provide A Medical Opinion on Whether a Woman Meets the Legal Criteria for a Termination of Pregnancy?
s. 13(1)(b) of Simon Mills’ Bill provides that a doctor, nurse or midwife may refuse to participate in the provision of an opinion that the conditions necessary for a lawful termination of pregnancy exist. This sort of provision will be particularly important where the threat to the mother’s life is related to a psychiatric condition. (Note, however Professor Veronica O’Kane’s suggestion that this could be avoided by constructing a volunteer panel for this purpose). However, if a doctor refuses to provide such an opinion, he must refer the woman to an alternative doctor who is able and willing to provide one. S. 5(1)(b) of Clare Daly’s Bill requires a medical practitioner to provide all relevant information to the woman regarding her right to treatment, but does not distinguish between information and diagnosis.
Can A Hospital Refuse to Provide Termination Services as a Matter of Policy/Ethos?
44 US states allow health care institutions to refuse to provide abortions which has led to something of a postcode lottery in American women’s reproductive health. Clearly the prospect of institutional refusals to provide abortions, were it to arise in Ireland, would pose significant problems for the vindication of women’s constitutional rights. This year in its Concluding Observations on the Report of Hungary, CEDAW confirmed its opposition to institutional conscience claims. Clare Daly’s Bill clarifies in s. 5(3) that Irish institutions and organisations may not refuse to treat a woman in the pursuit of a conscientious objection. The right claimed here is an individual right. The Bill further provides in s. 5(2) that “it shall be the duty of every health institution to ensure that the necessary number and category of personnel, both medical and non-medical, are made available and are not obstructed” in providing medical treatment to a woman entitled to a termination of pregnancy. In s. 5(1) the Bill confines the right of conscientious objection to individuals “directly involved in the provision of medical treatment”. It excludes those engaged in management, administration or other ancillary services from its remit. Similarly, Simon Mills’ Bill refers exclusively to doctors, nurses and midwives.
Indirect involvement in an abortion was the core issue in the Arizona excommunication of Sr. Margaret McBride.The issue of conscientious objection by non-medical personnel has also arisen in the UK, where the approach taken matches that in the draft Bills. In Janaway v. Salford the Court of Appeals held that a receptionist could not invoke the protection of the statutory conscience clause in refusing to refer a woman for a termination because she was not directly involved in the procedure. Similar reasoning was recently adopted in the Scottish case of Mary Teresa Doogan and Concepta Wood. This rationale is also consistent with the obligation of refusing doctors to refer their patient to a colleague (see Question 2 above and on the philosophical difficulties with that rationale see McLeod here).
The ill-fated 2010 McCafferty Report to the Parliamentary Assembly of the Council of Europe identified four problems with European conscientious objection regimes: (i) lack of oversight and monitoring of the exercise of conscientious objection, and in particular lack of monitoring of differential regional impacts (ii) doctors’ non-compliance with the conscientious objection regime by failing to report their objection to patients, and ‘informally’ following their conscience against the best interests of the patient (iii) delays in access to medical treatment as a result of conscientious objection, as where a doctor fails to refer a patient to an alternative colleague in a timely manner and (iv) lack of clarity about the scope of conscientious objection. In cases where the objecting doctor has referred the patient to a colleague, there is also the matter of continuity of care during the transition period. Any conscience clause in Irish legislation must address these issues with as much precision as possible. Finally, there is the issue of the political framing of the conscience clause. Stigma remains a significant obstacle to women’s access to abortion. Discussions of conscience should not be used as occasions to honour the ethics of certain religious medical practioners by pathologising women’s reproductive decisions; a difficult task, of course, when we remain within a legal system which treats abortion as a criminal act and grudgingly permits it only in exceptional circumstances.