Thursday, 13 December 2018
Health (Regulation of Termination of Pregnancy) Bill 2018: Report and Final Stages
I will speak generally to the group of amendments first and then address some of them specifically. My Labour Party colleagues and I are co-signatories to amendments Nos. 37, 42 and 43. Senator Norris has asked me to formally move and withdraw amendment No. 34 on his behalf. Broadly, all these amendments seek to address our concern to ensure, as expressed by Senators Ruane and Higgins, that the chilling effect of criminal law will not continue to operate as a barrier to women's access to abortion after enactment of this legislation. That is the fundamental concern behind this group of amendments. We all acknowledge and very much welcome the clear provision in section 23(3) that the woman herself will not be criminalised. That is crucial for me. The pregnant woman herself is not criminalised and subsections (1) and (2) will not apply to her, which is very important. Our concern arises from the sorts of prosecutions we saw in Northern Ireland in recent years where, for example, a mother was prosecuted for assisting her daughter in purchasing abortion pills over the Internet. We do not want to see that kind of support for a young woman by a parent being criminalised here. I understand, of course, that the other provisions of this Bill, particularly section 12 and the legal access to early term abortion should mean that people will not have to purchase pills illegally anymore over the internet. Clearly, in the interests of patient safety, we do not want that to remain the practice here. We know that currently three women are ordering these pills every day illegally. That was one of the key motivations behind the Oireachtas committee in recommending repeal of the eighth amendment and the introduction of this sort of legislation. We accept the need to ensure patient safety but there are residual concerns about whether we need to go as far as section 23 does in terms of the criminal law. On the other hand, we must also ask if section 23 goes far enough to deter the coercion of pregnant women. These amendments seek to address both concerns.
To turn to the individual amendments, amendment No. 37 and related amendments deal with the issue of "aid, abet, counsel or procure". As many will be aware, that is a formula taken from common law and now enshrined in section 7 of the 1997 Criminal Law Act, which applies generally in criminal law to anyone who assists a principal offender in carrying out an offence. It is known as the accomplice provision and the four words, "aid", "abet", "counsel" or "procure", should be read in that light. We currently have two offences of coercion. The offence of coercion is provided for under section 9 of the 1997 Non-Fatal Offences against the Person Act, which I read carefully in the context of this legislation. We also have the new offence of coercive control coming in under the Domestic Violence Act 2018, which we worked so hard to achieve in the Seanad. The Minister has expressed the view that the issue of coercion of a pregnant woman is addressed through the operation of section 9 of the Non-Fatal Offences Against the Person Act. The relevant part of the Act reads, "A person who, with a view to compel another to ... do any act which that other has a lawful right to do ... (a) uses violence to or intimidates that other person ...". It has been argued that this would cover some offences, some case of coercion of a woman and that the provision in subsection (4) is aimed at covering cases of coercion which are not covered by the section 9 offence. As the Department's very helpful briefing note points out, subsection (4) is in place to ensure that a person will be deterred from aiding and abetting, counselling and procuring a pregnant woman to act outside of the law and in the course of that, to expose her to procure an unsafe termination of pregnancy. I see the link with coercion and understand why subsection (4) is there. Essentially, it is to cover more subtle or more insidious forms of coercion than those which might be covered under the section 9 offence. Clearly, there will be some forms of coercion that would amount to assault, where a termination is carried out against a woman's will. We need to be sure that the criminal law is sufficient to protect women against coercion but not so extreme as to criminalise a person who, in good faith, assists another to procure pills, for example. That is the difficulty that we face with these amendments, particularly amendments Nos. 37 and 42. The latter also seeks to address the question of coercion.
Amendment No. 43, which we have also co-signed, seeks to create an offence of obstruction of access. The Minister has said that he will deal with that through separate legislation to be introduced in the new year and, as I said on Second Stage, that certainly offers my colleagues and I some comfort. The legislation will be health legislation and will deal with safe access. It will, one assumes, create criminal offences where there is obstruction of access. It might be timely when that legislation comes before the House in the new year for us to reflect on whether a better approach can be taken to the issue of coercion, with which we are all struggling. We need to ensure that women will be protected against coercive control or coercion specifically in the context of pregnancy and forced terminations while also ensuring that we are getting the balance right and not unduly criminalising those who should not be criminalised at all, such as a parent who, in good faith, helps his or her daughter.
In terms of the medical practitioners acting in good faith, they may well be protected by the wording of section 23(1) because "intentionally end the life of a foetus otherwise than in accordance with the provisions of this Act", means that a doctor who, for example, thought a woman was under 12 weeks pregnant when in fact she was not, would be protected. The bigger concern is about the well meaning friend or relative who assists a girl or a woman, knowing that the assistance provided is outside the provisions of the Act. These are the issues with which we struggle.
It is reassuring to know that legislation will be introduced in the new year with which we can all work to ensure that it protects women adequately, if these amendments are not agreed to at this stage. Again, I do not want to see this legislation delayed. I want to see women having access to legal terminations as early as possible. I am really glad that the Bill, if passed as it is, even with our concerns about section 23, will provide for free, safe and legal abortion for women. That was the promise and that was the premise on which we campaigned. Many of us, myself included, campaigned on the basis that we would like to see a less restrictive regime in place. We had concerns, in particular, about the three day waiting period, the criminalisation and so on. This was the framework presented to the people. This is not an unrestricted access to abortion law that we are debating here and that was not the basis on which we went to the people in May. That is an important point. Furthermore this law, whatever about our difficulties with the three day waiting period and section 23, is infinitely more progressive than the current situation for women in Ireland and the British Abortion Act of 1967, under which more than 160,000 Irish women have had abortions. That Act requires two doctors to certify reasons, even at the earliest stage of pregnancy. In that context, I take great comfort from the fact that section 12 of this Bill will enable women to access abortions on much less restrictive terms than is currently the case, particularly when they have to travel and work under the provisions of the aforementioned 1967 Act.
I have expressed my concerns, which are shared with my Labour Party colleagues, about the criminalisation provisions but I recognise that we will have other opportunities, not only with the Minister's new Bill in the new year but also through the mechanism of Private Member's legislation, to address those concerns.