Thursday, 13 December 2018
Health (Regulation of Termination of Pregnancy) Bill 2018: Report and Final Stages
I am speaking to the group of amendments concerning criminalisation. The amendments all deal with criminalisation given that the criminalisation of doctors and those who assist women has been retained in this Bill, and is straight out of the Protection of Life During Pregnancy Act. We cannot talk about protecting and supporting women without calling out the barriers that this legislation has placed in the way of access. Decriminalisation was a central part of the discussions in the Joint Committee on the Eighth Amendment of the Constitution and the term "chilling effect" was used countless times. I fail to see how we are reducing that chill with the legislation as it is currently drafted. It is as though the Government now feels that limited access is okay. In fact, it seems to think it is better than okay.
Many academic papers, service providers and doctors clearly set out what the decriminalisation of abortion means. In simple terms the decriminalisation of abortion means removing specific criminal sanctions against abortion from the law and changing the law and related policies and regulations to achieve the following: not punishing anyone for providing safe abortion; not punishing anyone for having an abortion; not involving the police in investigating or prosecuting safe abortion; not involving the courts in deciding whether to allow an abortion; and treating abortion like every other form of healthcare. This legislation does not meet all those criteria. Women will still be criminals and so will those who support or aid them, just as it is in the Protection of Life during Pregnancy Act. There are small instances whereby decriminalisation is carved out, and just like the chilling effect of the Protection of Life during Pregnancy Act and the eighth amendment, doctors, women and those who support them will err on the side of caution. The Minister referred to women being coerced and how our laws must ensure the protection of women. While we agree on that, this legislation is not the way to achieve that.
To allow for the law to still have a role in instances the Minister envisages, we have tabled these amendments in an effort to meet him half way. That is not speaking to the first amendment, which would delete the section, but further amendments. In the Dáil, the Minister consistently made the case that he has retained criminalisation in the area due to the Attorney General's advice that some form of criminal sanction needs to be maintained to protect women and to encourage access to legal abortion services. However, what the Minister has done is implement a blanket criminalisation of all actions not done in accordance with the Bill, which is far broader than what is required to protect women. On Committee Stage, he said that we are talking about serious and violent attacks on women, a violent attack on a woman and her autonomy and situations where women may be intimidated or forced into illegal terminations of pregnancy in dangerous circumstances. However, we do not see these specific offences in section 23. Instead, blanket criminalisation is maintained, which will only serve to have a chilling effect on medical practice and the people who may assist a woman in procuring an abortion because she is a few days beyond the 12-week limit. That is what we are proposing in the former amendment No. 54, which is now amendment No. 35. It would explicitly outline specific crimes that the Minister clearly has in mind when he thinks of this section and remove the chilling effect of the current blanket criminalisation where offences are made for violent attacks on women to administer anything to a woman to end her pregnancy against her will. Amendments Nos. 42 and 43 would make it a specific offence to coerce a woman into terminating her pregnancy with the later amendments. The Minister has regularly cited the joint committee's report as justification for this blanket criminalisation. We recommended that where a termination was carried out in an appropriate medical setting and where a woman procured an abortion for herself, no criminal sanction should apply. We did not recommend that criminalisation should be applied to every situation and did not specifically call for decriminalisation. It is a misrepresentation of both our report and our deliberations to say that we did.
What we are proposing will achieve what the Minister wants but without the chilling effect on all abortion service provision and will make sure such offences would not apply to the pregnant woman herself. We have listened very closely to the Minister's comments and have matched our amendments as a result in an attempt to be constructive and find a middle ground where, if criminalisation must be retained, we make it specific to the need to protect the woman and not chill the work of our doctors as they provide abortion care.