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Abortion report identifies 'constitutionally, legally, procedurally sound' option

The expert group report makes no recommendation but provides options for Ireland to deal with the ECHR ruling on abortion. The government will make a decision on which option to go for by the end of the year.

Image: a.drian via Flickr/Creative Commons

THE REPORT OF the expert group appointed to provide options for dealing with a European court ruling on abortion in Ireland has identified an option that is “constitutionally, legally, and procedurally sound” but it does not make any recommendation.

The Health Minister James Reilly has published the long-awaited report his afternoon and said that the government will make a decision before the end of next month on which of the options to implement.

The expert group, appointed in January of this year, outlined a number of options for the government to take on board but its terms of reference did not include making any recommendations with regard to how to Ireland should respond to the European Court of Human Rights ruling in the A, B, and C versus Ireland case.

In this case, the court found that there is a gap in the theory and implementation of the right to a lawful abortion in Ireland, a right given under the 1992 Supreme Court X Case ruling which provided for abortion for women when their lives are in danger, including from the risk of suicide.

In concluding its report, the expert group says that “inevitably some options commend themselves more than others”.

What the report says

The report says that the option to introduce legislation and regulations to allow for the access to abortion in circumstances which meet the test of the Supreme Court X Case is “constitutionally, legally, and procedurally sound”.

The report outlines four main options for implementation, one of them non-statutory in the form of guidelines and three of them statutory including regulations, legislation alone and legislation plus regulations.

The authors of the report write: “During its deliberations, the Expert Group weighed advantages and disadvantages of each option, with a view to achieve legal clarity within a practicable system and the over-riding need for speedy action.”

In option 1 the report says that guidelines would meet the need for speedy action but notes the legal difficulties these guidelines alone could create. The report says: “The Courts, both domestic and international, have made it clear that in a democracy, measures which affect rights must have a secure legal basis.”

In option 2, the report says the advantages of regulations – which would require enabling legislation –  include that they could be easily amended, access would be on a secure, statutory footing, the regulations would remove the ‘chilling effect’ of the 1861 Offences Against Person Act (which prohibits abortion), and would “satisfy the requirements of the implementation process of the A,B, and C v Ireland ruling. The only disadvantage outlined is the need for primary legislation.

In option 3, the report says that one of the advantages of legislation alone is that it would “clearly provide for the general prohibition of abortion while at the same time enacting in legislation the exceptions that might arise in lawful circumstances”. Disadvantages would include the time it would take and that “postulating all the details” in the legislation would be “too rigid an approach”.

In option 4, the report details legislation plus regulations which would, according to the report, be “an implementation option that would be constitutionally, legally, and procedurally sound”.

The advantages of this option are that it fulfils the requirements of the judgment, it provides for appropriate checks and balances between the powers of the legislature and the executive, and would be amenable to changes that might arise out of clinical practice and scientific advances.

The only disadvantages the expert group identifies is that due to the nature of this legislation the process of drafting law would take “a considerable period of time”.

‘Difficult and painful issue’

In its preface the report’s authors say that that abortion “is a difficult and painful issue in this country and elsewhere” noting that the decision of the Supreme Court in the X Case 20 years ago “has remained controversial”.

But the report says that the verdict in the X Case is “the law of the State however it notes that the “legislature has not put in place any formal system to provide for the exercise of this constitutional right”.

The report sets out the current legal provisions regarding abortion in Ireland:

The report says that the ruling in the European Court of Human Rights in the A, B, and C versus Ireland case is “legally binding” and as a result of the ruling “the State is under obligation” to:

A. Provide effective and accessible procedures to establish a woman’s right
to an abortion as well as access to such treatment.

B. Establish criteria or procedures in legislation or otherwise for measuring or
determining the risk.

C. Provide precision as to the criteria by which a doctor is to assess that risk.

D. Set up an efficient independent review system where a patient disputes
her doctor’s refusal to certify that she is entitled to a lawful abortion or
where there is a disagreement between doctors as to whether this
treatment is necessary.

E. Address sections 58 and 59 of the Offences Against the Person Act, 1861.

‘Obliged to regulate’

In its chapter on general principles, the report says that in implementing the ECHR decision the State is must acknowledge the constitutional right to abortion as identified and explained in the X Case. The report says:

The State is entitled and, indeed, obliged to regulate and monitor the exercise of that right so as to ensure that the general constitutional prohibition on abortion is maintained.

The report also summarises four main principles that have been established by the ECHR ruling:

1. The entitlement to have the right to lawful termination of pregnancy ascertained should be established.

2. The State’s constitutional obligations under Article 40.3.3° should be reflected in the options proposed to implement this judgment.

3. Termination of pregnancy should be considered a medical treatment regardless of whether the risk to the life of the woman arises on physical or mental health grounds.

4. It will always be a matter for the patient to decide if she wishes to proceed with a termination following a decision that it is clinically appropriate medical treatment.

In chapter six the report says of the procedure for determining entitlement and access to termination of pregnancy that: “The diagnosis of the medical specialists as to whether the woman satisfies the test in the X case should be made expeditiously/or within a defined time limit, and should be formally notified to the woman.”

The report says that “doctors are considered the only appropriate decision-makers in the matter” should a case satisfy the test as laid out under the Supreme Court ruling that there is a “real and substantial risk to the life of the mother; and this risk can only be averted by the termination of her pregnancy”.

‘Appropriate decision-makers’

On the number of doctors involved in the decision-making process and what their role should be the report lays out three options.

Option 1 is two doctors of relevant speciality which, among a number of things, would have the advantage of having only relevant specialists responsible for the the determination of entitlement to an abortion, it would limit the number of doctors responsible for the decision-making process, would ensure consistency and avoid stigmatising mental health issues. The disadvantages include logistical delays occurring and the delays in securing the services of an obstetrician.

Option 2 is two doctors, one of whom is an obstetrician. This can ease access to treatment and mean that an obstetrician would not have to be tasked in cases where an abortion is decided upon. The disadvantages would be that in the case of risk to life from suicide, the obstetrician would not have sufficient specialist training and in other instances the treating hospital may have to source an obstetrician where one is not present.

Option 3 is two doctors of relevant speciality plus an obstetrician which has the advantage of making the woman more secure in the diagnosis and decisions made. But among the disadvantages listed are that it would put an extra burden on the patient and and her treating doctor or doctors, it would create difficulties in the case of risk of suicide as it would be hard to justify requirement a second psychiatrist, and it would also risk stigmatising mental health conditions.

The report says that in the case of emergencies it is “debatable” as to whether a scenario where the opinion of having one medical practitioner making a decision needs to be explicitly provided for. The report says:

In extremely rare circumstances where the risk is imminent and it is not possible to seek the advice and assistance of additional medical personnel, the opinion of one medical practitioner should suffice.

It says that locations where termination of pregnancy can take place should be certified by either the Minister for Health or other appropriate health control agency. It says the “Minister for Health seems to be the most appropriate authority, as he is responsible to the public and to the Oireachtas for the operation of the system”.

Review of decision

The report also details a “formal review process” which should be set-up for cases where the medical advisers do not believe a termination to be required in order to avert a threat to live but where the woman disagrees and believes she is entitled to one.

Drawing on the judgement in the Tysiąc v Poland case which was decided in March 2007, the report says that any review mechanism must be:

  • before an independent body,
  • competent to review (i) the reasons for the decision and (ii) the relevant evidence,
  • the procedures should include the possibility for  the woman to be heard
  • it should issue written reasons for its decision
  • decisions must be timely.

It outlines a number of options including having a medical model, which would involve an independent clinical review, and a legal model, which would involve an inquiry by a tribunal-style body with quasi-judicial powers.

It also presents options for the composition of a panel including drawing  on a lawyer, access to legal expertise on a formal basis, or making no specific provision for legal advice.

The report also says that the woman still has a constitutional right to access the courts if the panel makes a negative decision.

The report is now due to be debated before the Dáil and subject to three days of Oireachtas health committee meetings in early January before the government presses forward with its plans in the New Year.

In full: The expert group on abortion’s final report

Oireachtas agenda: Abortion Bill, EU presidency, extra funding

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Hugh O'Connell

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