THIS WEEK MARKED a momentous occasion in Irish social history, with the Dáil passing legislation to enshrine the Supreme Court ruling of the X Case into law.
The Protection of Life During Pregnancy Bill 2013 will be enacted once the Seanad and President have signed off on it in the coming fortnight. After 21 years of debate on the wider issue, months of discussions on the makeup of this particular Act and hours of speeches by politicians, the Dáil passed the Bill just after midnight on Thursday.
The lengthy discourse on abortion rights and restrictions in this country may have fudged the various elements of the Bill for some. TheJournal.ie examines the law, explaining exactly what it means for Ireland.
1. Why are we using a Supreme Court ruling?
The X Case, which involved a 14-year-old girl who had become pregnant as a result of rape, was a seminal case which interpreted Article 40.3.3 in the Constitution.
The ruling of the Supreme Court binds lower courts (and, indeed, itself). Four of the five judges sitting in the 1992 hearing interpreted Article 40.3.3 in a way that a lawful abortion could be granted if there is a real and substantial risk to life of the mother.
As the risk in this case was because of a threat of suicide, suicide ideation as grounds for a legal termination was deemed constitutional.
2. How will this law impact the situation of a woman who wants an abortion but her life is not at risk?
A woman who wishes to terminate her pregnancy – but whose life is not at risk due to physical illness or suicide ideation – will not be allowed to obtain an abortion in Ireland as a result of this law.
3. How does the legislation impact on Irish women’s right to travel?
An Irish citizen will still be allowed to travel to other jurisdictions, such as the UK and Netherlands, to avail of abortion services.
A referendum in November 1992 granted this freedom to travel outside the State. It also allowed for information to be made available about such services.
The 2013 Act will state:
Nothing in this Act shall operate to limit the freedom to travel between the State and another state, or to obtain or make available in the State, in accordance with conditions for the time being laid down by law, information relating to services lawfully available in another State.
Nothing in this Act shall operate to restrict any person from travelling to another state on the ground that his or her intended conduct there would, if it occurred in the State, constitute an offence under section 22.
4. So, can a woman be prosecuted if she undergoes an abortion in the UK?
No. An Irish woman is perfectly entitled to travel outside the State for an abortion – regardless of the reason behind her decision. She cannot be stopped entering or exiting the country and she cannot be prosecuted.
Last year, about 4,000 girls and women (at least 21 from each county) made the trip to England or Wales. Another handful probably travelled to the Netherlands.
5. If a woman is raped, can she receive a lawful abortion in Ireland?
No. There are no provisions for this (or incest) in the Act.
Because Article 40.3.3 equates the life of the mother and the life of the unborn, there is no constitutional possibility to allow for a termination in such circumstances.
She may, however, travel abroad. In 2011, 90 females reported becoming pregnant as a result of rape. Seventeen underwent terminations. Forty were under the age of 18, nine of whom terminated the pregnancy.
6. But the X Case was about a girl who was pregnant as a result of rape?
Yes, but the Supreme Court made the ruling on the risk to her life because of suicide ideation. The rape was not a condition of the judgement, it was just a fact in the evidence.
7. Much has been said about there being no term limits in the Bill. Because of the omission, can a woman who is eight months pregnant – and deemed suicidal because of that pregnancy – be granted a lawful abortion?
If a woman is pregnant and suicidal, she may request her pregnancy to be terminated. This can happen at any point during the pregnancy. However, this will not mean that late-term abortions will be carried out.
The Constitution – and medical ethics – will kick in here.
The constitutional right to life of the unborn still has to be upheld, and where the foetus is viable, it is a clinician’s duty is to offer the best possible treatment to both a pregnant woman and the unborn child.
If the pregnancy is deemed to be the cause of the suicide risk and/or ideation, it may be terminated. This will be done by way of an early delivery if the foetus has reached viability (which is usually at about 25 weeks gestation).
The baby will be born alive and every effort will be made to save its life – and keep it alive. Speaking earlier this week in the Dáil, Justice Minister Alan Shatter explained that it is not about “murdering the unborn child”. This fact was reiterated by Master of Holles Street Dr Rhona Mahoney during the Health Committee hearings in May and June.
8. The Minister for Health said that the law could result in more babies ‘suffering damage’. What did he mean?
Last month, James Reilly conceded that the Government’s proposed abortion laws will probably result in more babies being delivered having ‘suffered damage’ because of their premature delivery.
This is because of what could happen in the scenario explained in Question 7.
The laws allowing pregnancy to be terminated could result in more children being delivered in a premature state – a condition which would ultimately mean health difficulties for the baby.
Viability of a foetus cannot be worked out to a specific gestational point and there may be a grey area when discussing a foetus at the cusp of viability (24 to 26 weeks).
9. Can a woman who is pregnant and has been told her baby will be born with a disability be granted a lawful abortion?
No. There are two reasons outlined in this Bill which allow for lawful terminations. The first being a danger that the woman will die because of physical, medical complications because of the pregnancy or that she is suicidal because of the pregnancy.
Neither relate to this scenario.
10. Can a woman who is pregnant and has been told her baby will not be compatible with life be granted a lawful termination?
No. And this has caused much controversy in recent weeks.
About 1,500 cases of fatal foetal abnormalities are diagnosed in Ireland each year and about 80 per cent of women travel to the UK for terminations (often in the form of early, induced labour).
A campaign group was set up in an attempt to have their cases included in the current Bill but amendments were rejected on fears that it may be deemed unconstitutional.
Advocacy group Terminations for Medical Reasons (TFMR) says it is determined to keep fighting to ensure families in these situations can be cared for in their own country.
11. Can a woman who tries to abort her baby or procures an unlawful abortion be sent to jail?
Technically, yes. But Minister Reilly has insisted discretion will be used on the part of the DPP and the courts. The Bill reads:
It shall be an offence to intentionally destroy unborn human life.
A person who is guilty of an offence under this section shall be liable on indictment to a fine or imprisonment for a term not exceeding 14 years, or both.
A woman or anyone who assists that woman to procure an illegal abortion can be prosecuted. This could include the buying of abortifacients online, something which family planning agencies have said occurs across the country.
The sanctions have been widely criticised but Minister Reilly defended its inclusion, noting that prior to these changes a woman could be sentenced to life in prison. He also said the DPP – and the courts (if it gets that far) - will use their discretion in cases.
The government argues that sanctions must be in place to ensure back-alley abortion clinics are not established.
12. What can and can’t doctors do if another case such as the Savita Halappanavar tragedy presented itself?
There were many elements to the Savita Halappanavar case so we can’t say that any one piece of legislation – if in place at the time of her hospitalisation – would have saved her life.
To go back to the day doctors confirmed that she was suffering an ‘inevitable miscarriage’, we can say that this legislation would not have changed the actions at that point.
Neither this legislation – nor our Constitution – allows for a termination to be carried out if a woman is having a miscarriage. She must see it through naturally and it will not be expedited (unless there are real and substantial concerns about her life – not her health). In Savita’s case, although the miscarriage was underway, there was still a fatal foetal heartbeat so the process could not be sped up.
13. If a woman has an illness (such as cancer) and is unsure of how a pregnancy will impact her health and life, what happens?
Another grey area. If there is no danger to her life (as distinct from her health) because of the pregnancy, she will not be granted a lawful termination.
In such a scenario, if a woman believes her life to be at risk she can request a termination. Two medical practitioners will decide if the risk can only be averted by carrying out a medical procedure. In this scenario, the threat does not necessarily have to be immediate.
This section is pertinent when recalling the ABC versus Ireland case which hit the European Court of Human Rights, and led it to recommend Ireland clarifies is laws – which ultimately led us here.
‘C’ in that case became pregnant as she was in remission from cancer. Before realising her condition, she underwent a series of check ups which could have impacted negatively on pregnancy. She said she did not (and could not because of current law) receive clear information about the risk the pregnancy posed to her health and life if she continued to term.
The Grand Chamber of the European Court of Human Rights unanimously ruled that Ireland’s failure to implement the existing constitutional right to a lawful abortion in Ireland when a woman’s life is at risk is a violation of the European Convention on Human Rights.
14. If a woman is in an emergency situation and pregnant, what do doctors do?
The legislation doesn’t change anything in this scenario, but it does offer clarity to doctors.
Where a woman is pregnant but at risk of dying, all medical treatment can be carried out even if it is to the detriment of the foetus. The Bill explains that the procedure can be signed off on by just one doctor who “believes in good faith that there is an immediate risk of loss of the woman’s life from a physical illness”.
In this case, the risk must be immediate.
15. If a woman is pregnant, and suicidal because of that pregnancy, what do doctors do? Does a woman have to prove she is suicidal? How does she do this?
This has been the most controversial aspect of the Bill.
However, it is not a change in what is legal or illegal in Ireland. Since the X Case in 1992, it has been lawful to have an abortion in Ireland on the grounds that the pregnant woman is at risk due to suicide (see Question 1 on the binding nature of a ruling by the highest court in our land).
In the current Irish Medical Council guidance for medical practitioners, a doctor is told to undertake a full assessment of any risk of suicide in light of clinical research in the area. If a substantial risk to the life of the mother is found, an abortion can legally take place in Ireland.
What this Bill provides is a process or framework for this situation.
If a woman requests a termination because she is suicidal, this process will begin. Three medical practitioners – one obstetrician and two psychiatrists – have to jointly certify “in good faith” that there is a real and substantial risk of loss of life by way of suicide and that in their reasonable opinions, that risk can only be averted by carrying out a termination.
The three-doctor panel have also been encouraged to consult with the patient’s GP, once consent is obtained from the woman.
If a termination is not granted because the conditions above are not fulfilled, then an appeals process can be accessed. The review panel will consist of three more doctors.
16. Will we know how many women receive terminations in Ireland under this law?
Many throughout this debate have voiced concerns that legislation based on mental health can ‘open the floodgates’ to a wider regime, as it has done in other jurisdictions. The Minister has confirmed that he will report on the number of applications, reviews and terminations each year.
No woman or doctor will be identified in those annual reports.
17. Can a doctor refuse to carry out a termination?
Yes. The Bill allows for conscientious objection:
Nothing in the Act will compel any doctor, nurse or midwife to carry out or assist in a termination.
However, that person is obliged to make arrangements to transfer the patient to another care provider.
18. How does Ireland now compare to other countries?
Ireland now joins most other European states which allow for abortions only under certain conditions.
Other countries, including the UK and the Netherlands, allow terminations where there is a risk to the mother’s health – be it mental or physical. Many countries also loosen their restrictions in the case of rape, incest, teenage pregnancies (Finland offers abortions up to 20 weeks if the pregnant girl is younger than 17), or when there is foetal abnormalities.
Laws relating to abortion are not as restrictive in Northern Ireland as they are south of the border but they are not as loose as other parts of the UK. Women there are also not entitled to an abortion through the national health insurance scheme (the NHS), as they are in England and Wales.
Gestational limits vary across Europe. Although women in England, Scotland and Wales can have an abortion up to 24 weeks of pregnancy about 90 per cent are carried out before 13 weeks. In Belgium, Denmark and France there is a 12-week limit, while others including Austria and the Netherlands allow terminations up to 24-weeks.
In the Netherlands, legislation sets certain requirements about how a woman arrives at her decision to terminate. There are also laws which lay out conditions for the quality of care given by hospitals and clinics where the procedures are performed.