Report of the Expert Group on the Judgment in the A, B and C v. Ireland Case: Statements

6 December 2012

Report of the Expert Group on the Judgment in the A, B and C v. Ireland Case: Statements

Thursday, 6 December 2012

I welcome the Minister and the opportunity to speak about the expert group's report on the judgment in the A, B and C case. I thank him for his very clear outline of the circumstances behind the report and its content. I share his view that the expert group deserves commendation and praise for its work. I also thank him for clearly stating the Government's commitment to act on the report and setting out a timeline.

Like Senators Colm Burke and Fiach Mac Conghail, I believe legislation and regulations offer the best option. It is the option the Government must choose, in all conscious, before the end of the Dáil term on 20 December. A reading of the expert group's report will lead one to the conclusion that that is the preferable option. As the Minister said, the expert group does not recommend any option, in particular, but it does set out the position that legislation plus regulations would be an implementation option "that would be constitutionally, legally, and procedurally sound". For a number of reasons, primary legislation would be required, not least to deal with the "chilling effect" of the 1861 Act - the criminal provisions on abortion - to which Senator Fiach Mac Conghail referred. As the expert group pointed out, this is a very important consideration. As others said, passing legislation of this nature would not in any way provide for abortion on demand, far from it. It would simply provide legal clarity on the current position under the law under Article 40.3.3° of the Constitution. This means that abortion is legal, where necessary, to save a woman's life. It is a very limited form of abortion. It does not cover the risk to a woman's health, cases of rape, incest or fatal foetal abnormality.

As a feminist, like Senator Fiach Mac Conghail, I would describe myself as being pro women's right to choose and would like to see the law go much further. However, I accept that we must operate within the Constitution under Article 40.3.3°. Given that we must operate within this constraint, it is long overdue for us to pass legislation to bring legal clarity to the issue.

As stated by other speakers, we are having this debate at a time when there is enormous public disquiet and outrage at legislative inaction to date on the death of Savita Halappanavar. Her death has highlighted the lack of legal clarity over when a doctor may intervene to terminate a pregnancy which poses a risk to a woman's life. As we have heard since that very tragic case was brought into the public domain, there is a grey area for doctors. Like Senator MacSharry, I am a parent. I am the mother of two daughters. I do not want to see a grey area around the lives of women in this way. It does render women second-class citizens. I am unhappy about this, and also about the fact that we are still operating under provisions from 1861, which has a chilling effect for doctors.

Senator Colm Burke rightly quoted the late Mr. Justice McCarthy in his Supreme Court judgment in the X case. His questions have had particularly poignant resonance since the tragic death of Savita at the end of October. Mr. Justice McCarthy stated that the failure by the Legislature to enact appropriate legislation clarifying the conditions when doctors may intervene is inexcusable. He also asked what are pregnant women in the medical profession to do. Twenty years later, it is long overdue that we move to legislate. The expert group has carefully and comprehensively set out the legal context in which we now have this discussion and the clear blueprint for the necessary legislation. The Minister has pointed out that this does not change the law but clarifies it. The report points out that the State must render effective a right already accorded, and confirmed in two referendums, by Article 43.3 of the Constitution as interpreted by the Supreme Court.

The report deals with a number of contentious issues. The Minister has pointed out that it deals with the issue of time limits, pointing out that a pregnancy may be brought to an end to save a woman's life without necessarily terminating the life of the foetus where it is or may be viable, which addresses that issue. The report also deals with the second issue of suicide risk, raised by some commentators. It again sets out in a clear and practical way how suicide risk may be provided for through legislation and regulation. Where the risk to life arises from suicidal ideation the report points out that the diagnosis of expressed suicide intent is a routine process for psychiatrists. As such one of the clinical decision makers provided for could be required to be a psychiatrist in such a case.

The X case sets out a clear test. We cannot legislate for just a part of that case. As I have said elsewhere, that would be similar to being a little bit pregnant. It is simply not possible. It is also treating mental health somehow less seriously than physical health if we suggest that risk to life arising from suicidal ideation is somehow less serious. It is also an argument that is profoundly demeaning to women, suggesting that we are so deceitful we will be queuing up pretending to be suicidal in order to get an abortion. It is also undermining of the psychiatric profession who have professional training in assessing suicide risk. It is important to state that it is legally wrong to say that this would open the door to abortion on wider grounds, as some have suggested. The Supreme Court test is set extremely high. There must be real and substantial risk to life arising from risk of suicide. This is far higher than the mental health ground for abortion provided for in, for example, the British 1967 Act.

It is also important to point out that the people have voted twice since the X case, in November 1991 and again in March 2002, to confirm the X case test and to confirm the inclusion of suicide risk, even when it was explicitly put to the people that this could be excluded. Since the X case, there has been a further case in 1997, the C case, in which the High Court heard and accepted psychiatric evidence that a young girl pregnant as a result of rape was suicidal and that the risk of suicide was a real and substantial risk to her life. In recent weeks, seven eminent Irish psychiatrists have reminded us that suicide is associated with unwanted pregnancies in countries where abortion is not available. We are fortunate in Ireland in the sense that there is legal abortion available, albeit across the Irish Sea. To those who say there is no abortion in Ireland, I say while it does not happen in Ireland, in 2011, 4,149 women who gave Irish addresses had abortions in English clinics and that since 1983 approximately 100,000 women resident in Ireland have had abortions elsewhere. It is notable that our rate of abortion rose during the 1980s and 1990s. It is welcome that the statistics in this regard have decreased since the establishment of the Crisis Pregnancy Agency, which indicates that making contraception more accessible can play a large part in reducing the incidence of crisis pregnancy. As I said, we would all welcome greater access to contraception and sex education, thus reducing the incidence of crisis pregnancy.

I will now address the blueprint of the report. As stated by other speakers, chapter 6 sets out in detail the procedure that may be set out in legislation for determining the clear legislative or regulatory regime which the European Court of Human Rights required we should establish. The report suggests that two doctors with relevant training and expertise appropriate to the case would be sufficient to make a clinical decision on the risk to the life of a woman, be it physical or mental, and points out that special provision would need to be made for emergencies and for a review mechanism where a termination of pregnancy had been refused in the first instance. It states that this review panel could be established swiftly, with access only at the request of the woman. The report also points out, in chapter 6, that conscientious objection would be allowed subject to limitations, such as the duty to refer the patient to another doctor or to treat her in circumstances of imminent risk of death.

Chapter 7 of the report has been a major focus. This chapter sets out the options for implementation. As I stated, of the four options presented in the report the option of legislation plus regulation is clearly the one that carries with it the most advantages. We all realise that legislation is essential, and legislation together with regulations offers us the best approach to implementing the A, B and C v. Ireland judgment and finally fulfilling our legislative obligation to carry out the wishes of the late Mr. Justice Niall McCarthy in the X case.

I regret that the expert group report did not address the issue of fatal foetal abnormality. We have all heard the many harrowing stories from women and their partners who have had experience of this and have had to travel abroad for termination of pregnancy. It would be useful if we could encompass this in any legislation within the terms of the Constitution. Crucially, we must move swiftly. Senator Norris, Deputy Conway and I are hosting a briefing next Tuesday on the expert group report and the need for legislation, which we hope others will attend. It is hoped that a decision to legislate will be made by Government by 20 December and that we will then see legislation and regulations drafted during the first three months of next year. We need to move swiftly. It is key that we ensure no more women die.