Catherine Murphy (Kildare North, Independent) | Oireachtas source

A small but significant number of women each year find themselves in circumstances where, because of an underlying medical condition, the continuation of a pregnancy would involve a serious risk to their health or life or both. It is important to be clear about the scope and intent of the expert group report. There must be no confusion about the report and one must not allow any misrepresentation of the report to frustrate the efforts of this Legislature to implement the judgment in the A, B and C v. Ireland case. The scope of the report is extremely limited, regrettably so. However, as legislators Members must deal with the report that has been presented to them and not with misrepresentations or misinterpretations of its aims and contents. The task of the expert group was to propose mechanisms to give effect to the limited constitutional right to abortion which is established under the X case, that where as a matter of probability, there is a real and substantial risk to the life of a pregnant woman, which can only be averted by the termination of the pregnancy, such a termination can lawfully take place. While I acknowledge that other Members have made this point earlier in the debate, the preface to the report is unambiguous in stating "the X case decision is the law of the State". Moreover, this was declared by the highest court of the land and is binding on all the lower courts and is the law. The report does not advocate or present options that would allow termination of pregnancy in circumstances that fall outside the limited constitutional right and nor does it advocate for or propose options that would be more restrictive than the existing case law allows. The options outlined in the expert group's report address only the rare cases that arise where pregnancy presents a risk to the life of a pregnant woman, with a view to ensuring that all necessary medical treatment can be carried out within the law in such cases.

The report is grounded in four principles that govern all the options discussed and seek to strike a balance between a woman's right to a termination where her life is at risk and the constitutional obligation to protect and vindicate, as far as practicable, the life of the unborn. The first principle was that the entitlement to have the right to lawful termination of pregnancy ascertained should be established. The second principle was that the State's constitutional obligations under Article 40.3.3° should be reflected in the options proposed to implement this judgment. The third was that termination of pregnancy should be considered a medical treatment, regardless of whether the risk to the life of the woman arises on physical or mental health grounds. The fourth principle was it always will be a matter for the patient to decide if she wishes to proceed with a termination, following a decision that it is clinically appropriate medical treatment. In this context, I can recall Mr. Praveen Halappanavar talking about how he and his wife were looking forward to a healthy baby at the end of the pregnancy. This was a much-wanted baby and in many cases in which there is a risk to life, the baby is much wanted. I have listened to some of the debates in recent weeks in which people were talking about walk-in and walk-out-type services. This is not what Members are talking about. This is an extremely limited report with a limited scope that is in line with the constitutional provision in Article 40.3.3°.

In scope, the expert group report addresses the court's finding of a violation of the privacy rights under the European Convention on Human Rights in the case of one of the three applicants in the case, namely, Applicant C, who was in remission from cancer when she became pregnant and was unable to obtain clear advice about the risks to her health and life and to the foetus if she continued to term. It is regrettable that the scope of the report is so limited because there are cases that require serious consideration beyond the scope of the expert group report. While the court did not hold that there had been a violation of the rights of the two applicants whose cases did not involve risk to life, the court did find that the necessity to travel to the United Kingdom for an abortion amounted to an interference with their rights. The court held that the State was free to decide on how such cases should be addressed. The expert group could have considered how the law might be changed to bring Ireland's abortion regime into line with the approaches in other European countries that allow terminations in a wider range of circumstances but it did not do so. In this context, it is useful to study the third appendix at the end of the report to see how other European countries deal with this issue. The only one with which Ireland is absolutely comparable in this regard is Andorra. However, as the latter has a population of 86,000, the situation is hardly comparable.

The report states the legal position that the European Convention on Human Rights is legally binding on the State and that Ireland's duty to comply with the judgment of the European Court of Human Rights is integral to the scheme of the convention.

The report is unambiguous about Ireland's legal obligation as a result of the ruling. In the words of the court, "It would obviously be insufficient for the State to interpret the court's judgment as requiring only a procedure to establish entitlement to termination without also giving access to such necessary treatment".

The report addresses a number of issues relating to access to treatment. It details the working of the Offences Against the Person Act 1861 and one can consider how a doctor would read it. It is very much something from two centuries ago, even if we just take in its terminology. The report addresses one of the central concerns of the European Court of Human Rights, the continuance on the Statute Book of the criminal provisions of the 1861 Act and the chilling effect on women and doctors due to the risk for both parties of criminal conviction and imprisonment. The report recognises that only legislation that would provide a defence to these provisions would give the required legal protection for woman and their doctors.

The report proposes a number of models of appeal processes for cases of disagreement between a woman and her doctors or between doctors. It highlights that a right to legal abortion must be supported by procedural safeguards to ensure that the law is correctly applied. Medical and legal models and models that combine both perspectives are proposed. The report is clear that the core issue is medical, not legal, and that a seriously ill pregnant woman should not be subjected to an adversarial legal process which would be protracted, embarrassing and invasive of her privacy. It outlines the attributes of an appeal process, including that it must be independent, competent and give written decisions in a timely manner, and that the procedures must include the possibility for the woman's voice to be heard.

With regard to conscientious objection, the report highlights the need to regulate individual rights to conscientious objection in such a way that it cannot be exercised to frustrate a woman's right to receive treatment. The report highlights cases where particular options could create procedural or practical barriers to access to treatment, such as options creating the necessity for two psychiatrists to make a decision in a case of suicide intent and options imposing a requirement for lawyers to be included in any review panel.

The expert group makes it absolutely clear that the judgment in the A, B and C v. Ireland case implies an obligation on the State to the ruling of the Supreme Court in the X case. The report gives some consideration to aspects of the X case that have been considered particularly problematic. The issue of suicide arises most often. The report is unambiguous that termination of pregnancy should be considered a medical treatment in cases where the risk arises on mental health grounds, which is an obvious reference to suicide. The report acknowledges that diagnosis of suicide intent presents challenges and considers whether a risk to life from suicide warrants extra safeguards such as, for example, the involvement of two psychiatrists in the decision making process. This might give the woman and her doctors more security in the diagnosis and decisions but there are also significant disadvantages outlined by the report. These include the extra burden on a patient by imposing a practice which is not standard when a patient is not pregnant, the risk of stigmatising mental health conditions and the possibility of delay due to geographical and service delivery issues.

The report directly addresses concerns that the judgment in the X case establishes a right to a termination at any gestational age. The expert group is clear that the right to have the pregnancy brought to an end does not entail the right to end the life of a viable foetus. The report proposes measures to maximise the chances of survival of a foetus that is at the "fringes of viability". The report highlights that the issue of how to provide for the X case has been considered by other bodies which have all concluded that legislation in some form is the most appropriate way to regulate abortion in Ireland. It casts doubt on whether any implementation option that does not include legislation will satisfy the requirements of the court for substantive measures that will give effect to the right to abortion in the X case.

Nevertheless, the report also expresses serious concern about the lengthy nature of the process of legislative drafting and democratic scrutiny. Attention was drawn to this in 2000, as if we had legislated for the issue at that stage, we would not now be talking about a lengthy process. The Government must introduce emergency legislation or other interim measures, such as, for example, the announcement of a moratorium on prosecutions, in order to ensure that no pregnant woman will be denied a termination of pregnancy in circumstances where her life is at risk. Even with legislation to implement the judgment in the A, B and C v. Ireland case, Ireland will still have one of the most restrictive legal system approaches to abortion in the world. I draw attention for anybody who cares to read it to the last couple of page of the report, which outline how such issues are handled in other countries.

The expert group gave consideration only to the requirement to give effect to the right to an abortion where a woman's life - as distinct from her health - is at risk. No other country in Europe makes that distinction. It is a very hard line to draw with certainty, meaning a clinician can be left with a very difficult decision. The great majority of countries with otherwise highly restrictive abortion laws, such as Colombia and Costa Rica, recognise that when women's lives or health are threatened by a pregnancy, measures must be taken in order to preserve women's health. The right to life of a foetus cannot be absolute, as it must be understood in tandem with the woman whose life on which it is dependent.

Some have suggested that the right to lawful therapeutic abortion should be further restricted by the exclusion of the threat of suicide. It is clear that introducing legislation to exclude suicide as reason for a therapeutic abortion is currently unconstitutional and would require a referendum. Proposals to amend the Constitution with this intent have twice been rejected in referendums. Rather than propose a further referendum, the expert group outlines a number of ways of regulating the application of the law, such that women whose mental health condition leads to a real and substantial threat of suicide have access to all appropriate treatment, including the option of a termination. These merit consideration by the Legislature. If suicide were to be excluded, inevitably, at some point, the death of a pregnant woman would occur. Are we willing to be implicated in such a death?

The expert group was not mandated to consider the ban in Ireland on abortion to preserve a woman's health in cases of rape or incest, cases of serious foetal abnormality or in any other case. We know that 4,000 women every year travel to the UK for abortions. The European Court of Human Rights accepted that these women experience significant physical, financial and psychological burdens and those whose experience is the hardest are those who are most marginalised and who experience most disadvantage and discrimination in our country. These are women with little or no income, with care responsibilities, with disabilities, with mental illness, women experiencing violence, young women and women of uncertain residency status who are unable to leave or re-enter the State freely.

The report is limited in scope. If its scope were broadened, a constitutional referendum would be needed to address such issues as the right to health as well as rape, incest and fatal abnormalities in a foetus. All of these issues deserve consideration in a civil society.

See this speech in context