Dr. Ruth Fletcher:

On the question of societal value versus objective value in respect of foetal life, we must bear in mind that law is a complex toolbox and there are different ways in which we can respond to the fact there are pluralities in society and people have very different views, but those views are not black and white. The law can work in a way that is layered and complicated in attempting to respond to the different interests people have.

This development of a recognising of a value in foetal life is an effort to respond to that plurality but also to say that there are things we want to do such as provide good maternity care, miscarriage care and education around reproductive health and sexual health. There are things we can do which have an impact on the value of reproduction and the contribution which reproduction makes. It is a kind of public value and societal value in the reproductive contributions that are made. Within that model, prenatal life has some weight. However, as it does not meet the same criteria or have the same social history or social relationships as born, living, feeling, thinking women, it is not the same weight and would always be subject to the protection of the full human rights of pregnant people. However, there is still a way we can try to promote that public interest in doing the best we can in terms of the provision of reproductive health care. That is one of the reasons on-request models have found support not just among pro-choice constituencies in other jurisdictions but among constituencies where people are perhaps not against abortion entirely but they have concerns about it. Those concerns can be addressed by saying that the effect of an on-request model will make it easier for pregnant people to access abortion at earlier stages, and the views of those who adopt a kind of gradualist model of pregnancy can be accommodated in that way.

The point about learning from the Protection of Life During Pregnancy Act is an important one. Medical law would normally have audit, research and reflection into legal processes and it would be a good idea to build that into our statutory processes in this area, as in any area of law. In some areas it happens more than others. We have seen with the Protection of Life During Pregnancy Act some non-delivery of abortion care that seemed to meet legal grounds, for instance, the cases of Ms Y and the woman who was detained under the Mental Health Act. There is definitely lessons to be learned there. Even though formal legal grounds can be created for accessing abortion and making it lawful, the interpretation of those grounds needs to be guided by professional regulation and perhaps a code of practice to ensure that they are implemented fully. Those are the main areas. We can learn from what did not work as well as was expected with the Protection of Life During Pregnancy Act. Life exceptionalism - the right to life-saving abortion - can be interpreted in a more positive and human rights-respecting way to enhance the dignity of the woman whose life is threatened, for example. We see that in some Latin American countries but it does not seem to have happened in this case. That is therefore an interesting lesson to learn.

In terms of conscientious objection, my recommendation would be to recognise conscientious refusal to provide abortion care. That is out of an interest in recognising plural opinions and wanting to build a system in which there is public trust. It is not good for pregnant people accessing services if they are coming up against people who do not want to provide the care to them. There are good reasons to have a protection of conscientious refusal to provide abortion care but it has to be implemented in a way that respects the rights of the pregnant woman. There has to be a referral, for example, and it has to come under the guarantee of access in the sense that she has to get a safe and timely service, even though there is that particular conscientious refusal. It also has to be clear that it does not apply to institutions, for example, as that would be contradictory. It is supposed to protect individuals. If an institution is protected, individuals in an institution do not get their right to differentiate from the institution.

In terms of thinking about different ways in which we could implement access when pregnant women need it at later stages of pregnancy on grounds of rape or foetal anomaly, if we use the term "rape" or a diagnosis of "foetal anomaly" in the law specifically as the reason, it generates problems, as the committee has been hearing. Let me tackle the rape one first. We do not need to have the rape ground specifically in the legislation. It can be the set of circumstances which generate the risk to the woman's health. It is a set of circumstances that generate the qualification on the legal ground. That is a typical way of addressing the issue. Then we do not have the sort of problems around requiring women to engage with the criminal justice system when they are not ready to or the proof problems the committee has been hearing about.

On foetal anomaly, we are trying to think about what is the best way of achieving legal criteria to implement the Citizens' Assembly's objectives. In a sense, often we have conflicting objectives. Here we are trying to avoid a stigmatisation around disability or vulnerability, for example. People have concerns that we stigmatise disability or vulnerability if we specify "foetal anomaly" in legislation . The idea is to avoid the legal stigmatisation by recognising that those are circumstances which can generate a risk to health and the ground is one that is focused on the woman or pregnant person rather than one that is focused on the anomaly of the foetus. Again, a code of practice would be used to make that clear.