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Healy Eames using rarely-used mechanism to make Seanad vote on opposing abortion bill

Six days have been set aside for the passage of the Bill though the Seanad.

Image: Laura Hutton/Photocall Ireland

SENATOR FIDELMA HEALY-EAMES has tabled an amendment to be heard today on the Protection of Life During Pregnancy Bill 2013 opposition to the principles of the Bill.

The Reasoned Amendment to the Motion for the second stage involves “a little-used mechanism” which means the amendment will be voted on first, she said.

Healy Eames noted that senators Feargal Quinn and Mary Anne O’Brien had agreed to second the Amendment, adding that she believed “it is important to continue to oppose the flawed grounds on which the Bill is based”.

The basis of the opposition to the bill is centred on the provision of a termination of pregnancy in circumstances where the risk to the life of the mother involves suicide.

Six days have been put aside for the Bill to pass though the Seanad. If the Upper House does accept any amendments, the Dáil will have to be called back from recess to discuss them.

The Amendment tabled by Healy Eames is outlined below:

‘‘Seanad Éireann declines to give the Bill a second reading for the following reasons:

(i) The X Case judgment, correctly interpreted, does not create a binding precedent with respect to the application of the criterion for a lawful termination of pregnancy (i.e. the test of ‘real and substantial risk to the life of the mother’) to circumstances in which the risk to the life of the mother is one of suicide. The lawfulness from a constitutional perspective and the appropriateness from a medical and public policy perspective of extending that test to such circumstances was conceded by the parties to that case, was therefore not argued before the Court and, accordingly, formed no part of the ratio of the decision which is binding as a matter of precedent.
(ii) Further, and independently of the foregoing, there is no legal obligation upon the Oireachtas, as a matter of Irish law, to enact any legislation dealing with the provision of abortion on grounds of suicidality, not least in circumstances where there are substantial ethical, medical and public policy reasons not to enact such legislation.

(iii) The judgment of the European Court of Human Rights in A, B & C v Ireland does not oblige Ireland, as a matter of either Irish or international law, to make lawful, or to maintain as lawful, a right to abortion on grounds of suicidality.

(iv) It is dangerous, irresponsible and unjust to legislate for the creation of a specific statutory framework for the provision of abortion as a method of suicide prevention in circumstances where:

a. there is an absence of evidence that abortion has any positive effect on women’s mental health or that it has any positive effect in preventing suicide;
b. there is evidence to suggest that abortion may have a negative effect on women’s mental health and is associated with an increased risk of suicide;

c. there are clear public policy reasons for not formally recognising suicidality as a legitimate means by which additional rights or services may be acquired or accessed or by which the rights of others may be abridged or wholly over-ridden.

(v) The Bill is unconstitutional by reason of its endemic failure to respect the equal right to life of the unborn child in accordance with Article 40.3.3. This failure is manifest in several provisions and omissions of the Bill including:

a. The absence of any objective standard (e.g. reasonableness, evidence-based clinical practice, relevant guidelines etc) by reference to which medical practitioners must form an opinion for the purposes of certifying an abortion in accordance with the Bill. This represents an unwarranted and unexplained departure from the usual standard of care required of clinical decision makers under existing medical ethics and Irish law.
b. The absence of any provisions expressly requiring that all alternative courses of action (including non-medical courses of action) are to be fully explored, offered and exhausted before abortion is contemplated as a possible means to averting a risk arising from suicide.

c. The absence of an unconditional entitlement on the part of medical practitioners who are asked to make a certification or to review the refusal of a certification to have access to all medical records potentially of relevance to the proper assessment of the risk to the life of the mother.

d. The absence of any express term limit to the provision of an abortion on grounds of suicidality.

e. The absence of any express provisions prohibiting the certification of an abortion under section 9 in respect of a viable unborn life.

f. The absence from the Bill of any reference to or provision for any medical procedure other than one during the course of which or as a result of which unborn life “is ended”.

g. The absence of any provision to allow for the best interests of the unborn child to be represented by an advocate on his or her behalf in a manner similar to that afforded by the Bill to the mother by means of rights of appeal and representation. The unborn child is a legal person with a constitutionally recognised right to life and, it follows, a right to be consulted in an appropriate way before the taking of any decision which may directly affect his or her rights in a material way. As with any other person who lacks capacity to participate in a consultation process, the best interests of the unborn child should be represented by a person acting on his or her behalf for the purposes of any consultative process to which the unborn child is entitled as a matter of constitutional law.

h. The absence of adequate reporting requirements to ensure that the provisions of the Bill are being complied with in practice and to facilitate a proper review of its operation on an on-going basis. At a minimum the Bill should require the following particulars to be contained in the relevant reports: (1) the total number of notifications received by Minister / reviews carried out, (2) the clinical grounds for medical procedures carried out pursuant to section 13 certification, (3) the gestational age of the unborn child whose life is to be ended by a certified medical procedure, (4) the actual outcome for the mother and unborn child of every certified medical procedure.

i. The absence of any penalty for knowingly making a false or misleading statement in relation to the notification or reporting requirement (such as is found in the Mental Health Act 2001).

(vi) The Bill fails to adhere to international precedent with respect to the recognition and protection of the right to conscientious objection for all persons who may be involved in the carrying out of an abortion, including non-medical or ancillary staff and institutions. The Bill equally fails to protect the constitutional and human right of medical and nursing personnel not to be required to assist in arranging for another medical practitioner to carry out an abortion.
(vii) The Bill taken as a whole represents a backward step in terms of promoting and improving in Irish hospitals the practice of the two-patient model of care during pregnancy that ultimately best serves the welfare and safety of both women and their unborn children.

(viii) There remains in Irish society a culture of respect for the humanity and equal right to life of the unborn child that is largely under threat across the Western developed world. This culture is grounded in the belief that an unborn human being deserves protection precisely because he or she is so dependent, weak and vulnerable and not despite the fact that he or she is so dependent, weak and vulnerable. The Bill taken as a whole sends a message, ungrounded in medical reality, that the deliberate killing of an unborn child is sometimes acceptable and necessary in order to provide the best possible medical care for women in pregnancy. Enshrining this misrepresentation in legislation can only undermine the existing culture of respect for unborn life.

Read: The Seanad will spend most of this week debating the abortion legislation
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