Dr. Ruth Fletcher:

Thank you, Chairman. I thank the members of the committee for the invitation. It is a great pleasure to be able to draw on the research and teaching I have been doing in the area of medical law to think practically about how we might build on the insights of the Citizens' Assembly and how we can practically translate that into legislation.

I thought in this presentation I would select some key points from the submission I made. Before I get to focusing on how we might translate the Citizens' Assembly recommendations in regard to both on-request models and criteria for access in the later stages of pregnancy, there are two framing issues on which I wish to focus.

The first is in regard to the trend towards decriminalisation and the significance of decriminalisation. That that is an option open to the committee members in order to progress the framework within which the Citizens' Assembly recommendations might take effect. Basically, as I am sure the committee will be aware, decriminalisation of abortion is part of an international trend. Even though there are significant criminal prohibitions in many different countries, we are seeing a trend towards taking the criminal law out of the regulation of reproductive health care, in particular, abortion, partly because it is about having the right tool for the job. In a sense, criminal law is not the right regulatory tool for regulating reproductive health care and the main argument around decriminalisation of abortion health care at present is about taking the punitive aspect of law out of the regulatory tool box that is available for different kinds of abortion care.

One key reason people find it persuasive to take that punishment element out of the regulation of abortion care is because it is having a chilling effect on professionals providing quality abortion care and health care, and because it stigmatise this kind of reproductive health care and because it has an impact in the sense that we have seen individual prosecutions and there is fear and stigma then attached to that for individual users of abortion care. However, it is important to remember that taking the criminal law out of the regulation of abortion care and reproductive health care, that is decriminalising, is not about deregulation or full legalisation. Decriminalisation is about, as I say, removing the punitive element but there are still many other legal tools available to ensure that good practice is promoted and that poor practice is held to account. That would be the function of the civil law, for example, in regard to the tort of negligence, and it would also be the function of professional regulation. In medical law, we have other legal tools available to hold good practice to account and to promote that good practice. Criminal law does not need to do it.

The second key point is that decriminalising does not necessarily mean one is fully legalising something. One can still adopt criteria that make certain kinds of abortion care lawful and unlawful. It is merely that one might use other sorts of public tools, such as incentive measures and funding measures, and even information, in order to monitor that boundary between what is lawful and what is unlawful. That is the first key framing issue that we might want to think about a bit more that might help implement the recommendations of the Citizens' Assembly.

The second is the guarantee of access that I have proposed in the third part of provisions that might implement the Citizens' Assembly objectives. That is about making clear that there is a public responsibility to provide abortion care to the highest attainable standards. One has two framing measures with regard to the statutory provisions in a possible Bill that would implement the Citizens' Assembly, namely, decriminalisation, and a positive guarantee of access to make sure that it is the Minister for Health - the public system - which is responsible for ensuring access and for implementing principles around non-discrimination.

Not only does it seek to make sure there is a level of public responsibility for delivery of a quality service but it also attempts to redress the previous situation in the sense that we know that the negative effect of abortion restriction has been most keenly felt by those who are most disadvantaged, so we can address that by making a guarantee of access as clear as possible. Those are the two framing points on which I would be delighted to take questions and comments.

I will now focus on what I am recommending in terms of the actual grounds themselves and what might be the best and clearest way to implement the recommendations of the Citizens' Assembly. The first is on language that might implement the on-request model. There are three main reasons parliaments and people have found on-request models persuasive. Two of them are related to women-centred arguments but one is related to a more foetal life-centred argument. On-request models have received public support because they take women's wishes seriously and that is one of the key reasons. A second key reason is because they make it easier. By that I mean there is less obstruction or less harm for the particularly vulnerable cases. Making abortion available on request means that the barriers and scrutiny that might come with particular pathways for rape victims or women who have serious health conditions are reduced in terms of facilitating access for that vulnerable group of women seeking abortion.

The third reason is because on-request models, as committee members have heard, tend to have the impact that abortions are more likely to be availed of at an earlier stage. There is a way, therefore, in which, in effect, if one takes the view that foetal life develops more value in a gradual way over time and if one does not have an absolutist value on foetal life, and many people think foetal life deserves some respect but just does not deserve the same kind of legal recognition women's lives do, there are ways in which many different legal regimes have recognised that foetal, prenatal, life deserves some sort of respect. On-request models can deliver on that to some extent in the sense that they make it more likely that abortion would be earlier rather than later. The effect of them is also to speak to people's concerns that prenatal life should have some respect but just not in the same way that women's lives would have.

The other issues to think about in relation to abortion on request, and I have recommended that we follow the Citizens' Assembly recommendations, is by providing that a person who is not more than 12 weeks pregnant may access abortion on request and without the need to demonstrate indications other than her own wishes. Again, the woman's wishes would be the main criteria for accessing an abortion on an on-request ground. One thing to think about in relation to that is that it might be possible, given what the Citizens' Assembly recommended, and given the recommendations based on the World Health Organization guidelines and the kind of variety the committee has been looking at in the earlier sessions, to extend that period from 12 weeks up until something more like 22 weeks, which 44% of the Citizens' Assembly recommended.

The final point is in relation to how to translate the types of recommendations that speak to making access available later in a pregnancy for especially vulnerable groups. What I have recommended in relation to that is that we have a ground which would allow a person who is between 12 and 22 weeks pregnant, for example, to access an abortion where an appropriately qualified medical practitioner determines that the abortion is appropriate in all the circumstances and then in making that determination the practitioner shall have regard to the pregnant person's own wishes, feelings and thoughts on her current and future circumstances. There is a way of making sure that the pregnant woman's concerns are part of that process but where one still has an approval process for later terminations. An appropriately qualified medical practitioner could include nurses and midwives, for example. We could expand the provision and enhance a local service in that regard.

For pregnancies that are of longer duration than 22 weeks, where the Citizens' Assembly wanted access at that point to be still available where there was risk to the person's life or a risk to health or in cases of fatal foetal anomaly, the idea would be that the appropriately qualified medical practitioner could consult a second appropriately qualified practitioner but that one would make it available on the legal pathway of a risk to a pregnant person's life or health. There is a difference between the reasons people have, in particular in vulnerable situations, in terms of serious risks to health, rape or carrying a pregnancy with a serious anomaly. Those are the reasons particularly vulnerable people might have for wanting access to abortion later in pregnancy but we do not necessarily have to use that language in the law. The language we use in the law can be a more open ground such as risk to health or life. In that way one removes the ways in which criteria such as rape grounds, anomaly grounds or a finding of serious risk can be an obstruction and instead one puts the details around what circumstances might qualify into the code of practice or into guidelines. Those are really the main points I wanted to emphasise in relation to the submission. I look forward to discussing them in more detail.