Thursday, 13 July 2023
Health (Termination of Pregnancy Services) (Safe Access Zones) Bill 2023: Second Stage (Resumed)
This is my second time speaking on this Bill and the third time the Bill has been before the Dáil. It has been shunted around the schedule. I acknowledge that the Minister for Health, Deputy Donnelly, is here. I appreciate that. I also take this opportunity to thank Together for Safety and my comrade in the Seanad, Senator Paul Gavan, who has been working on a similar safe access zones Bill that he drafted with Together for Safety in order to ensure that this matter stays in the public consciousness.
We repealed the eighth amendment. Women must be able to avail of abortion services as conveniently, particularly from a geographical point of view, as possible without strangers who should have no say in their lives and choices accosting them by insult or, more arrogantly, by prayer. To the men's prayer groups that are obstructing women's access to abortion care by prayer, I say that generations of women have spent long enough on their knees. We are up off them now. I recommend to these men that they get off their knees as well, get out of women's lives and stay out of them. If they will not listen to me, they might listen to Jesus, who told them in the gospels that if someone does not want to be a hypocrite, he or she should say his or her prayers at home. I recommend that these men go home, say their prayers and mind their own business.
It is a concern that swathes of the State are still without abortion services. I would like the Government to have gone further with the Bill. I believe fervently in the right to protest but decency must come into this. Nobody should be the subject of a protest when they are just going around and receiving whatever medical treatment they need. It is also a worry that while An Garda Síochána can make an arrest without warrant where they believe an offence has being committed in terms of this Bill, it also says it does not have an appropriate facility for recording offences. In effect, a person can have warnings at several locations if they are protesting but if these are not recorded, what action can follow? Will the Minister address that when he is replying? The Bill must be stronger in this recording regard because the practice is as important as the principle here.
As we know, five years ago people in this country voted in overwhelming numbers to confirm that abortion services are a vital and legitimate part of women's healthcare. We voted to have abortion services seen under the law as a legitimate healthcare service provided by the State. To date, that democratic choice has not been realised with over 775 women having to travel to obtain abortion services in the UK since the referendum. The majority of these women travelled for health-related reasons.
I welcome the Bill as another step towards providing access to free, safe, legal, local abortion services for anybody who needs them. Abortion is healthcare; everyone has a right to it. Our current system does not go far enough to guarantee that right. The protests we have seen across the country have had a massive chilling effect on people's ability to get the healthcare they need. Like other Deputies, I received emails from people who are part of the Together for Safety campaign reporting regular protests outside University Maternity Hospital Limerick and the National Maternity Hospital, Holles Street, as well as reports of semi-regular protests at various medical centres around the country. I thank Karen and Yvie for the work they do on this and for reporting it. This does not just affect those availing of abortion services. No one should have to walk past protestors on their way to receive any sort of medical care. I am aware that some may have questions over this law with regards to civil liberties. However, ordinary women and healthcare workers are simply exercising their rights to give or receive the healthcare for which we voted in the referendum to repeal the eighth amendment.
I do not believe this Bill will overly restricts people's right to protest. People can protest all they want. They just cannot do it in a deliberate way that restricts people's right to the healthcare they need. It is the politicians here who wrote the existing laws, not the patients or workers in health clinics and hospitals. If anybody has a problem, they should be protesting outside the Dáil, not outside of our healthcare facilities.
In its submission to the Joint Committee on Health, the Irish Council of Civil Liberties, ICCL, stated the following with regard to human rights aspects of this Bill:
ICCL considers that demonstrations outside abortion providers designed to shame, harass, and deter women from accessing abortion care and deter service providers from providing such care pose a serious risk to a range of rights. These rights include the right to privacy, the right to bodily integrity, including the right to mental and physical health, and the right to access healthcare without discrimination. Anti-abortion demonstrations can also negatively affect the right of medical service providers to access their place of work safely. Evidence shows that the effect of anti-choice protests outside abortion clinics can have long lasting negative effects on a person’s health and well-being and can deter women from accessing the medical care they need.
I cannot sum it up better than that. I respect everyone's right to protest. I have protested all my life. I do not believe that right is overly affected by this Bill. Having to stand 100 m further away is fully proportionate to ensure the rights of everybody to receive the healthcare they need with privacy and dignity and without harm to their health or well-being. The same goes for healthcare workers' rights to do their jobs as well. We still have a way to go in this country before we can ensure proper access to abortion services for all.
Our current laws are woefully inadequate to provide abortion services properly. I welcome the Minister's comments in April to the effect that we will have all 19 maternity hospitals offering abortion services by early next year but we need reassurances on this. Will the Minister provide a timeline and confirm that all maternity hospitals will offer the full range of abortion and reproductive health services. I ask the Minister what he will do about the number of GPs offering services. Only one in ten GPs offers full reproductive healthcare. The independent review highlighted the fact that there was a very bad spread in the south east, with the west, the midlands and Border counties having clear regional disparities when it comes to services. Some 50% of counties have ten or fewer GPs who offer full reproductive healthcare. The independent review also highlights that we are not training or recruiting enough doctors. I agree there needs to be service maps to identify service gaps. Each year, more and more women travel to access abortion services abroad and each year more and more of these women suffer due to health reasons. I think the Minister will agree that this is not good enough. It shows a failure to follow through on the democratic choice the people of this country made in 2018. We need to make sure that no matter who someone is, no matter how much money or what visa status they have or where in the country they live, they have full access to abortion services when they need them. I hope we get the Health (Regulation of Termination of Pregnancy) (Amendment) Bill 2023 through the Houses as soon as possible in order that we can continue the work towards free, safe, legal, local abortion services and reproductive healthcare for all.
The mandatory three-day waiting period is identified in the report relating to this matter as a contentious issue. The report informs us that the position of the World Health Organization is that a mandatory waiting period should not be required and the evidence does not establish any benefit to mandatory waiting periods for women. The report cites the Unplanned Pregnancy and Abortion Care Study commissioned by the HSE, which showed that respondents wish to access care as quickly as possible and do not perceive any benefit to having the three-day waiting period for reflection on their decision. Respondents stated that they felt certain of their decision, had not taken their decision lightly and had reflected upon it prior to arranging an appointment with a GP or community provider. Research has found that the respondents were almost universally consistent on the portrayal of the three-day wait as having next to no impact on their decision.
I will make a final point. I echo the calls made during this debate to keep a register of offences by individuals across all safe access zones.
I will be supporting this Bill. I will also support any amendments designed to enhance it.
There are a number of areas of consideration raised by the Health (Termination of Pregnancy Services) (Safe Access Zones) Bill 2023. On one hand, we have people who wish to exercise their freedom to protest. Within that, are freedom of assembly, freedom of association and freedom of expression. On the other hand, we have a legal, healthcare service, the right to avail of that healthcare and also to the ability to safely provide this service. It is a balance of proportionality. I will fiercely protect the right to protest. It is a cornerstone of democratic society and a freedom we must all hold in deep regard. However, we live in complex and dynamic societies and communities. Within that, as we have seen time and time again in our courts, sometimes rights will compete. It is then the job of the judicial system or the Legislature to ensure that proportionality is applied in order that a balance may be struck. This Bill represents an attempt to do that.
As outlined in the European Convention on Human Rights guide to the freedom to protest, any interference with the right to freedom of association must pursue at least one of the legitimate aims set out in Article 11.2 of the convention, namely, national security or public safety, the prevention of disorder or crime, the protection of health and the protection of the rights and
freedoms of others. A trial was conducted at a London clinic.
A safe access zone was implemented in a particular area where protests had been taking place. The results of the trial showed that implementing the safe zone had a positive impact. Where the staff had previously felt threatened and unsafe, this was alleviated. Similar results were reported by those accessing services.
We know from multiple reports that anti-choice protests outside of abortion service providers have a very negative impact on both the safe provision of the services and the well-being of those who need to avail of them. In 2019, the English Court of Appeal in Dulgheriu v. Ealing LBC further held that a safe access zone was a proportionate measure when balanced against the right of protesters to manifest their beliefs. In particular, the Court of Appeal referred to the “significant emotional and psychological damage” endured by clinic users who had been exposed to the demonstrations. Therefore, we can see that safe access zones are a proportionate and tested measure. Given that, according to the European Convention on Human Rights in cases such as Semir Güzel v. Turkey, in order for interference with the right to protest to be allowed, it must be prescribed by law. If we are all in agreement that safe zones are necessary to allow for the safe and accessible provision of abortion services as legal health care, then it is vital that this Bill comes into effect.
We must still address the issue of why we need safe zones. We can write our laws ethically but this must not be conflated with morality. The stigma that surrounds abortion stems largely from religious beliefs and religious indoctrination within our society. The Unplanned Pregnancy and Abortion Care Study published in 2022 refers to the legacy of stigma in Ireland in relation to abortion and the negative effect this has in terms of the provision of services. A separate 2021 study found that Irish providers also experience considerable stigma. This stigma is unfounded and dangerous. It stems from personal religious beliefs that have been allowed to hold our country in a dangerous and misogynistic chokehold. The same religious organisations that fuel the ongoing stigma are the same that ripped babies from their mothers when they were born, and worse.
It is time for the Government and elected officials to ensure that the rhetoric and narrative surrounding abortion is in line with our global peers. Abortion is healthcare and the denial of it as a service is a breach of human rights. Imagine if we allowed other moralistic beliefs to interfere so detrimentally with other healthcare provisions. Imagine if protesters were permitted to protest in a manner that directly made nurses and doctors feel unsafe for providing blood transfusions, and added psychological trauma to those who had to avail of it. Imagine if people felt threatened and their privacy violated for availing of legal, recognised forms of health care. I can assure the Minister that if the men in our society were facing this, day in, day out, it would have been made law and sorted out long ago.
The stigma will not leave on its own, nor will it disappear overnight. The narrative, education and discourse surrounding abortion must change. The focus must shift from morality to legality and reality. The reality is that abortion is healthcare. The reality is that abortion is legal. The reality is that these protests fail utterly to recognise the nuanced and deeply personal decisions and facts that are being faced by those who seek abortion services. The reality is that these protests do not change those facts, they merely serve to contribute to a harmful and dangerous legal and medical environment. Abortion is healthcare. That is the reality which has to be recognised.
I respectfully disagree with the previous speaker. It is my belief that the stigma arises from a profound disagreement on when life begins, which is obviously informed by religious communities but not only by them. That disagreement goes a lot further than religious communities.
The Bill has three particular provisions. The first is to outlaw engaging in conduct that is likely to obstruct or impede another person from accessing relevant healthcare premises. The second concerns communicating material in a manner that is likely to influence the decision of another person or likely to influence the decision of a person in regard to availing of or providing termination of pregnancy services. The third is to outlaw threatening or intimidating a person who is accessing or attempting to access a relevant healthcare premises. I do not have a problem with that. I completely agree that seeking to intimidate or obstruct somebody accessing a medical facility should be outlawed. What I would say is that it is very clearly already contrary to the law in Ireland, and I will deal with the other provisions later in my contribution. Section 9 of the Criminal Justice (Public Order) Act 1994 states, “Any person who, without lawful authority or reasonable excuse, wilfully prevents or interrupts the free passage of any person or vehicle in any public place shall be liable on summary conviction to a fine”. Therefore it is already outlawed.
As a matter of fact, the Criminal Justice (Public Order) Act 1994 goes further and states that a person who has been convicted may be barred from a premises, but this is limited to catering premises. Interestingly, this Bill, which the Minister is introducing today, does not have any provision for barring people, so people can be convicted every week if they choose to. If the Minister is serious about this, he should just extend the scope of the barring provisions in the Criminal Justice (Public Order) Act because it is already covered by it. Likewise, the idea of harassing somebody is outlawed under section 10 of the Non-Fatal Offences Against the Person Act, which prohibits harassing somebody. Harassment is defined as "acts intentionally or recklessly, seriously interferes with the other's peace and privacy or causes alarm, distress or harm to the other” or “acts are such that a reasonable person would realise that the acts would seriously interfere with the other's peace and privacy or cause alarm, distress or harm to the other.” This is already covered but for the idea of seeking to change somebody's mind.
Before moving on to that, it is important to point out what the Garda Commissioner was reported as stating in 2019. The Irish Timesstated:
Garda commissioner Drew Harris has said existing laws are adequate to deal with protests outside healthcare centres that provide abortion care.
In a letter to Minister for Health Simon Harris, the commissioner said it was his view that existing public order legislation is adequate to deal with the kind of protests witnessed at hospitals and clinics to date.
In the letter, seen by the Irish Times, the Garda commissioner says the introduction of such safe-access legislation would be “redundant” because of the existence of current laws and the fact that “no incidence of criminality has been reported or observed.”
This begs the question as to why we are passing redundant legislation. We seem to be doing so for no reason other than that we strongly desire to fight the culture war and bring this culture war to Ireland. It appears to be a case of saying "Let's have it on; we have nothing better to do in this place". There are no greater problems to be legislated for than this culture war, which appears not to exist in Ireland for a variety of reasons. Of course, this is primarily because the legislation provides that there are not abortion clinics or other healthcare facilities. Rather, it is a service provided in healthcare facilities. It seems to be a solution chasing a problem, rather than trying to find a solution to a problem.
There were reports of protests. In 2021, based on a study carried out by NUI Maynooth, the Irish Examinerstated that protests were reported outside Limerick Hospital on 17 days in February and March, when the country was under a level 5 lockdown - the Minister will remember those; it was when he kept us all safe and when houses could not be built. However, later that year, in December 2021, UL Hospitals Group said it had not received any complaints from patients, their families or staff relating to safe access to University Maternity Hospital Limerick despite a number of politicians calling for safe access. They did, however, concede that people had been praying outside the hospital. It was stated:
A hospital source said they were not aware of any such protests taking place: “Certainly not intimidatory... there might have been one or two women outside the hospital saying prayers with rosary beads occasionally, but they would only be there for a few minutes and then leave, they were certainly not intimidating anyone”.
On the basis of this, legislation has been proposed in the Seanad and, spurred on by that, I suppose, in order to be at the vanguard of the culture war, the Bill before the House has been brought forward. Section 2(2) states:
... a person shall not, in a safe access zone-
(a) communicate material to the public or a section of the public in a manner that is likely to influence the decision of another person in relation to availing of, or providing, termination of pregnancy services, or
(b) otherwise engage in conduct directed at the public or a section of the public in a manner that is likely to influence...
That is entirely subjective. It is almost impossible to mount a prosecution based on something that is likely to influence somebody because one would have to prove that beyond reasonable doubt, which is next to impossible. If that was not difficult enough to achieve, there is an exemption in section 3, which states:
(2) Nothing in section 2(2)shall prohibit a person from engaging in lawful conduct that occurs inside a place of religious worship.
(5) In this section, “place of religious worship” means a building- (a) that is used for the purpose of religious worship, and
(b) to which the public have access whether as of right or by permission and whether subject to or free of charge ...
I do not know whether the Minister is aware of it, but there is a chapel in the National Maternity Hospital just across from us on Merrion Square, so it is a place of worship. The chapel is located in the building, since the hospital is one building. There is the exemption straight away. There is a church in the maternity hospital in Limerick where masses are said weekly, as they are in Holles Street. As such, it would appear that section 2(2) does not apply to either as the legislation is drafted. There is a church in St. Vincent's hospital, where the Government is proposing, if it ever gets around to it, to build a new national maternity hospital. This appears to be legislation that adds nothing to the Statute Book.
I wish to be clear in that I do not condone and I do condemn unequivocally anyone who seeks to intimidate someone who is accessing a medical facility for any purpose. Regardless of whether it is a purpose with which the former agrees or disagrees, he or she does not get to have that choice. People have a right to access medical facilities. I do not condone, and have no sympathy for, people who seek to intimidate or obstruct others going to such buildings. The legislation on our Statute Book already covers that clearly.
As regards disseminating information or merely praying, it must be proven that it is likely to change someone's mind and it has to regard a building where there is no public worship. There is public worship in all of the buildings I have mentioned. It is a nonsense, a waste of time and a tokenistic effort to be involved in some kind of a culture war that, thankfully, is unnecessary in this State as of now. For these reasons, I oppose the Bill.
Like many of the Deputies who have spoken, I welcome this legislation. It is something I have campaigned for and spoken about positively. I am happy to see the legislation coming through.
We must remember that, when it comes to accessing abortion services, it is important they be safe, local and legal. We had a strong campaign in this country to legalise abortion services and repeal the eighth amendment. I am glad that happened, and now here we are in a better place.
Safety includes being able to access healthcare provision, which is everyone's right without fear of intimidation or harassment. That safety is not just for the patients but for the staff who work there. Doctors, nurses and anyone else who works in healthcare facilities should be free to work or engage in those services free from harassment and intimidation. As such, any legislation we can introduce to protect their safety is important.
Turning to the issue of abortion services being available locally, the recent expert review highlighted the geographic gaps in service provision. There are concerns that the lack of protection is producing a chilling effect, with service providers unwilling to provide such services, thereby contributing to these gaps. We do not necessarily need to see the evidence of the protests, harassment and intimidation to know they are already having a chilling effect. We cannot monitor it, since that would essentially mean trying to prove a negative, but that effect is there and needs to be addressed so that we can ensure abortion services are available locally. I am happy the Bill will help to address this issue.
In dealing with the right to protest, we are in a way engaging in competing rights. We must keep in mind the classical test of proportionality. Are we trying to achieve a legitimate aim, does the legislation move us in the direction of achieving that aim and does it do so in the most minimal way possible? Clearly, it does. Access to healthcare is a right people have fought for and needs to be protected, and it is a legitimate aim for the State to want to provide these services. This legislation moves us towards protecting people, access and the staff delivering that service. Equally, it does so in a minimal way. The safe access zones are as minimal as they can be while still being effective. This is backed up strongly in the European Convention on Human Rights in terms of the balancing it has done between Article 10 and freedom of expression. The court has been clear that a person cannot use his or her rights to abuse or undermine the rights of someone else. We are seeking to protect access to healthcare in a way that is proportionate and minimal while still being effective.
Like other Deputies, I wish to address some of the other issues around the provision of abortion services to which we need to turn our attention. Many women are still forced to travel to the UK. This was something I had hoped would be part of our past, but we are still there. The three-day waiting period needs to be removed because it is a needless impediment. Another issue is the tightness of the 12-week limit, particularly in light of some of the reasons people have to make that independent but very difficult choice for themselves. Ultimately, it is about the individual’s right to choose. We need to address all of these issues. I hope the Minister, after achieving this aim, will move to do so.
This legislation is necessary. Given the reality of policing on the ground, police often want a clear, black-and-white offence. When it comes to things we want police to address, they will often put their hands up and say the law is confusing, too vague and unclear. Although it may be possible to cover something under another offence, this is why we still create specialist offences. In recent weeks, for example, there was new legislation before the House focusing on the spiking of drinks and non-fatal strangulation. Those were two areas where extra legislation was needed because, while they were covered by existing legislation, that legislation was still not strong enough to produce the effect we needed in terms of protecting individuals. With this Bill, we are simply providing clarity in legislation. While the issue may be covered in other places, that does not mean it is not needed. I would point to the chilling effect. Such matters show this is necessary legislation, not simply some importation of a culture war. I do not believe that is what is going on here, and I would reject that.
I commend the Minister and the legislation. It is great to have this legislation and to have protection for women who are accessing services they have the right to choose freely. I commend the Bill to the House.