Mick Wallace (Wexford, Independent) | Oireachtas source

A number of Deputies in their Second Stage contributions have claimed that the people voted in the referendum earlier this year with the heads of this Bill in mind and that, therefore, we should stick to the draft legislation that was published before the referendum. While some, or even a majority of people, may have voted with the heads of the Bill in mind, we have no idea to what extent this is true. What we do know for certain is that the people voted overwhelmingly to repeal the eighth amendment. We also know that in doing so, they gave elected Members the power to legislate on behalf of the people. Our job now is to scrutinise the Bill, as initiated, and to propose and defend amendments as we see fit. I do not want to delay this legislation, but we would not be doing our jobs properly if we did not address some of the serious problems that we see in the Bill in its current form. It is important that we get it right.

One of the main problems with the Bill is that it does not fully decriminalise abortion. In fact, it creates a new offence in section 5(4) of helping another person to have an illegal abortion. The Bill also retains a 14-year prison sentence for performing an abortion "otherwise than in accordance with the provisions of this Act". As such, doctors will still worry about prosecution. This fear of prosecution will inevitably cause doctors to interpret the legislation conservatively and will have a negative effect on facilitating access to abortion, which is surely not what the Bill should be about. This means that the serious historical problems we are trying to move away from will, in fact, be replicated.

The Bill states that abortions, examinations and certifications must be carried out by a "medical practitioner". However, a "medical practitioner" is defined in section 2 of the Bill as a medical practitioner who is registered with the Irish Medical Council, which lists only doctors. This means nurses or midwives will not be allowed to examine or certify or provide abortion care in early pregnancy. I appreciate that in terms of assessing risk to the health or life of a pregnant person, a registered doctor should be required, but the World Health Organization safe abortion guidelines advise that "abortion care can be safely provided by any properly trained health-care provider, including midlevel (i.e. non-physician) providers." There is no provision in the Bill, for example, for nurses and midwives to certify or provide abortion care in early pregnancy, even though nurses and midwives are perfectly capable of performing these functions.

I also have concerns about the assessment of risk in sections 10 and 11. Given that the report of the Joint Committee on the Eighth Amendment of the Constitution did not recommend the qualification of harm as serious or otherwise, why are we inserting this into the Bill? Previous abortion law created major problems in assessing what constitutes "real or substantial risk" and this Bill repeats the same mistake. We should not define or qualify risk in legislation. Medical risk should be considered in a clinical setting, in real time, by medical specialists. I made exactly the same point in this Chamber when debating the referendum Bill as a reason to repeal the eighth amendment and it is strange to be back arguing the same point again in respect of legislation that is supposed to facilitate abortion services. Have we not learned from past mistakes? Risk can escalate quickly, and because of this it is actually extremely dangerous to qualify risk in legislation.

Experts at the committee warned against using the term "serious". It introduces uncertainty for doctors and therefore creates a chilling effect, and it also creates an access barrier for proper, timely intervention. The committee report specifically states:

The advice to the Committee is that the assessment of that risk is best considered in a clinical setting rather than being fixed in legislation. The Committee accepts this.

The report also accepts that it is especially difficult to grade or assess risk in the case of women who present with mental health issues. We need to amend the relevant sections of the Bill or more women may die.

Section 12 refers to a "condition likely to lead to the death of the foetus within 28 days". There was no mention of 28 days in the heads of the Bill and the committee report makes no such suggestions. Surely this kind of clinical or medical specificity has no place in legislation. Again, this will create a problematic lack of clarity for doctors. How can a doctor be expected to come up with such an exact prediction? Problems like this in the Bill will have a debilitating effect on doctors instead of empowering them to provide a proper medical service to women who need it. These problems in the Bill still frame and present abortion services in a negative way.

Many Deputies have referred to the 72-hour waiting period. This provision should be removed. The World Health Organization has said that waiting periods like this demean women as decision makers. Waiting periods will only lead to delays in accessing treatment. The UN Committee on the Elimination of Discrimination against Women has also recommended the elimination of medically unnecessary waiting periods for abortion as they pose a barrier to access. This legislation is supposed to facilitate access to abortion services. There is no medical basis whatever for this waiting period. It will particularly hit poorer people, isolated people, people living in rural areas and also people who are in abusive relationships.

Section 13 provides that a pregnant person must be examined prior to certification. This requirement was not part of the draft legislation and was not recommended in the committee report. Where is the medical evidence for such a requirement? Does it specifically mean a physical examination? Presumably it does, and it will have to be conducted in person, rather than over the phone. Again, like so many sections of this Bill, this is yet another barrier to care. We should replace the phrase "having examined the pregnant woman" with "having consulted the pregnant woman", which would facilitate a telephone consultation. We should be clearing the pathway to care and eliminating delays, but instead the Bill seems to be creating some obstacles. There also seems to be a poorly concealed moral or ethical distrust of abortion in its drafting.

The Southern Taskgroup on Abortion and Reproductive Topics, START, is a collection of general practitioners, obstetricians, public health doctors and psychiatrists. It has highlighted serious problems in a likely path to care based on the legislation due to the requirement in sections 10, 11 and 12 that the termination of pregnancy is carried out by the same doctor who certifies that the pregnancy has not exceeded 12 weeks. START argues that it is not workable in practice if the legislation requires that the same doctor who certifies must be available three days later to facilitate the abortion by prescribing medication in primary care or arranging the termination in hospital. According to START, it is obviously entirely possible that the same doctor will not be available when the mandatory 72-hour period after certification has elapsed. This doctor might be unavailable for various reasons. He or she might work part time, may be on leave of some sort, or may have other work commitments at the time.

Even assuming everything goes well and according to plan and there are no conscientious objections, 12 weeks, which is actually nine weeks in practice, is unlikely to be enough time for many women. It is not clear that the time limit is workable based on the Bill, as initiated, which means we will continue to see women travel or rely on the use of unsupervised abortion pills. This will defeat the purpose of this legislation. There is no medical reason for this requirement and it poses a serious risk to the implementation of abortion services in clinical practice. START argues that there are numerous examples of well-established protocols in primary and secondary care which allow the hand-over of care from one doctor to another so as to ensure continuity of care for patients.

Surely similar protocols could be used for abortion services.

Section 12 states that a termination may be carried out where the pregnancy has not exceeded 12 weeks. This period may need clarification. How are we to interpret it? Does the 12 weeks mean 84 days, full stop, or could it mean 12 weeks plus four, five or six days, but obviously not seven. It might be a simple thing but it may need some clarification.

I am not trying to be critical. I am trying to make it better.

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