Thursday, 6 December 2018
Health (Regulation of Termination of Pregnancy) Bill 2018: Second Stage
I welcome the legislation. This is a truly historic Bill that seeks to vindicate the decision made in the referendum in May, when 66.4% of the electorate voted to repeal the eighth amendment of the Constitution and allow broader access to legal abortion services in the State. I wish to pay tribute to the Citizens' Assembly for its work on the constitutional and legislative change required to end the injustice and hypocrisy imposed on women by the eighth amendment. I thank my colleagues on the Joint Committee on the Eighth Amendment of the Constitution for their detailed scrutiny and debate of those recommendations and their role in delivering them to the wider Oireachtas. I also wish to thank the public - the Irish electorate - who fundamentally and resoundingly rejected our hypocritical and horrific status quoand embraced compassion, care and autonomy for Irish women here in our country. I thank the activists who started work on repeal the day after the eighth amendment was inserted in 1983, before I was even born, and I thank those more recently responsible for creating a vibrant and energetic grassroots movement based on feminist principles which will fundamentally transform Irish politics forever.
The referendum was a fundamental rejection of the status quo whereby women were sent across the Irish Sea to access what we refused to make legal here. It shattered the political consensus on what we thought were the collective views of Irish people on abortion. In the light of the overwhelming majority who voted for change, we now have a mandate to go above and beyond what we thought possible or politically feasible before a referendum result that I am happy to admit took me by surprise in its overwhelming mandate for access for women above all else.
I thank the Minister, Deputy Harris, for the role he played in securing a "Yes" vote in the referendum. If a Minister for Health with contrasting personal views on this issue had been in office, things could have been very different. I wish to recognise his role in that process and in bringing the Bill through the Dáil and to this Stage in the Seanad.
There are positive aspects to the Bill. It provides for far broader access to abortion in the State, with legal access being allowed on grounds such as risk to life or health and fatal foetal abnormality and on request in early pregnancy. It is extraordinary to see a Bill such as this receive cross-party support in the Oireachtas. That is something which, even a year ago, many of us thought we might never see.
I welcome that the Protection of Life During Pregnancy Act will soon be repealed. It is a terrible law which I am glad will soon be consigned to the history books. However, it is very regrettable that so many of the provisions of the Bill before us have been taken from or inspired by that Act, which was roundly, regularly and rightly criticised by a wide array of international bodies, human rights organisations and providers of medical care to women. It had to meet the requirements placed on it by the eighth amendment whereby a woman’s life could only ever be equal to that of her unborn child. It treated women with suspicion and condescension such that their views on their lives and health did not matter. Access for a woman to a termination was the last consideration in terms of how it worked in practice.
It is unfortunate to see the hallmarks of that Act and the eighth amendment itself throughout the sections of this Bill, which is intended to vindicate a referendum decision that resoundingly rejected the premise that a woman needed to be on the verge of death to qualify for a termination. It is evident in the failure to completely decriminalise abortion, with the retention of the 14-year prison sentence outlined in the Protection of Life During Pregnancy Act, and in the stark admission in section 23(7) that “Nothing in subsection (4)shall operate to prevent or restrict access to services lawfully carried out in a place outside the State.” That provision is an explicit admission that, even after the Bill is passed, women will still travel for abortions. We have missed an opportunity to rip up the Protection of Life During Pregnancy Act and write a new law framed positively around access and placing a woman’s voice at the centre of her care.
As the Minister will be aware, Ireland has among the most restrictive abortion laws in Europe and that will continue to be the case after the Bill is passed.However, I want to work with what we have before us. Although it may not be perfect, it is a real sign of progress. However, on the most problematic provision taken from the Protection of Life During Pregnancy Act, I do not see how it is justifiable that the broad criminalisation of abortion services has been retained in the Bill. Every legal and medical expert who presented to the joint committee stated that abortion needs to be delivered as a normal part of women's reproductive healthcare and that any form of criminalisation surrounding it would hamper the judgment of doctors and harm access for women. Of course, sanctions should apply for wrongdoing and gross misconduct, in line with current Medical Council practice, but the Bill creates an extra layer of over-criminalisation that will smother medical practitioners and negatively impact on women. If a friend helps a woman to buy an abortion pill, as was the case in the recent case in Northern Ireland, that person is criminalised. A doctor who preforms a termination outside the narrow provisions of the Bill for a couple who have a devastating diagnosis of a fatal foetal abnormality will be criminalised. A doctor who terminates a pregnancy on the first day after the 12th week of pregnancy for a woman in a situation of domestic violence, addiction, mental health difficulty or disability will be subject to a 14-year prison sentence. This will have a chilling effect that will cause doctors to err on the side of caution and serve to limit access for women who need it.
Changes to the Bill to recognise the realities of the pressure on our health service are needed. Expecting the same doctor to certify and perform the termination is unrealistic. The Minister has recognised that requirement to be unworkable in the section pertaining to early pregnancy. I urge him to do the same in respect of the sections dealing with risk to health and fatal foetal abnormality.
The Bill provides for a three-day waiting period for terminations in early pregnancy, a provision not recommended by the Citizens' Assembly or in the report of the joint committee but included in the draft Bill published by the Department before the referendum. This issue was thoroughly debated in the Dáil and the Minister stated that people expect this provision in the law and, therefore, it must stay. However, the waiting period is provided for in a section of the Bill the main purpose of which is to allow for access to terminations in cases of rape. The section draws on the recommendation of the joint committee regarding the difficulties of legislating for access on that ground. Should a woman who has experienced rape have to wait three days without justifiable cause? That is what the Bill provides and it is simply without justification. As well as being unjustifiable for a woman who has experienced rape, a three-day waiting period will disproportionately affect poor women, migrant women, women with disabilities and women on the margins, those reliant on medical cards or a GP or hospital three or four towns away. I accept the Minister is of the opinion that the waiting period must remain in the Bill but, surely, we can build in some form of flexibility for exceptional cases, for the 1% or 2% of women it will actively harm. I assure him that such cases will arise and that those women will be harmed by this provision.I know we are on a tight timetable to get this Bill passed before Christmas and we want to work with the Minister to achieve that. However, the Bill needs improvement and we will table changes and expect them to be included to better ensure access for all women, but especially disadvantaged and working class women, who will be most impacted by its more restrictive provisions. It is a shame that the Minister did not accept a single Opposition amendment in the Dáil. There is no Government monopoly on best practice healthcare for women and I hope the Minister will keep that in mind on Committee Stage next week.