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What the Eighth Amendment Committee heard and the recommendations it made

Over the course of three months, 22 TDs and senators questioned experts and people who had personal experiences related to the topic.

noone Senator Catherine Noone, Chairperson of the Oireachtas Eighth Amendment Committee Source: Sen Catherine Noone/Twitter

FEW OIREACHTAS COMMITTEES have garnered as much attention as that convened to focus on the Eighth Amendment – but few topics divide public opinion in the way abortion does.

From September to December 2017, this group of 22 TDs and senators questioned medical and legal experts, as well as people who had personal experiences related to the topic.

The amendment, Article 40.3.3 of the Constitution, gives equal constitutional status to the mother and the unborn and effectively bans abortion from taking place legally in most scenarios in Ireland.

Given the level of material the committee had to examine, there were fears it would not produce its final report before its pre-Christmas deadline, but it did.

The committee was tasked with examining the recommendations of the Citizens’ Assembly (CA) on the subject. In April 2017, the CA recommended that the Eighth Amendment be replaced or amended, and that a provision should be made in the Constitution to allow the Oireachtas to legislate for abortion.

The CA recommended that terminations should be allowed without restriction up to the 12th week of pregnancy, for socioeconomic reasons up to the 22nd week of pregnancy, and during any period of the pregnancy in cases of fatal foetal abnormality (where the child is likely to die in the womb or shortly after birth).

In its report, the Oireachtas committee recommended that the Eighth Amendment should be repealed, and that terminations should be allowed up to 12 weeks of pregnancy “with no restriction as to reason provided that it is availed of through a GP-led service delivered in a clinical context”.

It also recommended:

  • termination of pregnancy should be lawful where the life or health of the woman is at risk and that a distinction should not be drawn between the physical and mental health of the woman
  • provision for gestational limits for termination of pregnancy should be guided by the best available medical evidence and be provided for in legislation
  • that any assessments in relation to the termination of pregnancy where the life or the health of the woman is at risk should be made by no fewer than two specialist physicians
  • that it shall be lawful to terminate a pregnancy without gestational limit where the unborn child has a foetal abnormality that is likely to result in death before or shortly after birth
  • the law should not provide for the termination of pregnancy on the ground that the unborn child has a significant foetal abnormality where such abnormality is not likely to result in death before or shortly after birth

Speaking at the time, Chairperson Senator Catherine Noone said: “It is fair to say that the issue of abortion remains one of the most divisive issues in Irish life and people hold deeply held views on the matter.

To that end the work of the Joint Committee was never about one side or the other. It was about women’s health and how best to ensure swift and safe support in sensitive and difficult cases.

“Termination of pregnancy and indeed continuation of pregnancy is not a black or white issue. Every case is unique.”

Legal and medical experts

So, who did the committee hear from? The speakers included several legal and medical experts, including the following:

  • Ms Justice Mary Laffoy, Chairperson of the Citizens’ Assembly:
  • Dr Rhona Mahony, Master of the Holles Street Maternity Hospital
  • Dr Peter Boylan, Chair of the Institute of Obstetricians and Gynaecologists, and consultant obstetrician and gynaecologist at the National Maternity Hospital
  • Professor Sir Sabaratnam Arulkumaran, President-elect of the International Federation of Obstetrics and Gynaecology, and author of the HSE report into the death of Savita Halappanavar
  • Dr Patricia Lohr, Medical Director, British Pregnancy Advisory Service
  • Dr Caitriona Henchion, Medical Director, Irish Family Planning Association
  • Dr Anthony McCarthy, Consultant Perinatal Psychiatrist, National Maternity Hospital, Holles Street, Dublin
  • Professor William Binchy, constitutional lawyer and primary legal advisor to the Pro Life Campaign
  • Noeline Blackwell, Chief Executive Officer, Dublin Rape Crisis Centre
  • Emily Logan, Chief Commissioner Irish Human Rights and Equality Commission
  • Gerry Edwards and Claire Cullen-Delsol, Termination for Medical Reasons Ireland
  • Liz McDermott, One Day More

The majority of speakers, both Irish and international, pointed out the issues that have arisen and still arise due to the Eighth Amendment.

  • Our liveblogs on the committee’s public sessions can be read here and the presentations made by speakers over the course of the hearings can be viewed here.

original (5) Dr Peter Boylan Source: Oireachtas.ie

Dr Peter Boylan, chair of the Institute of Obstetricians and Gynaecologists, for example, told the committee in November: “I don’t think the Constitution is the place to regulate medical practice … [The Eighth] has caused endless problems.”

“I suggest that in 2017 the Eighth Amendment is unworkable. When it was enacted 34 years ago, neither the world wide web nor the abortion pill had been invented. You heard evidence last week that the rate of women accessing the pill from online service providers is increasing,” Boylan said.

He told the committee that, although importing abortion pills is illegal, “there are many services that facilitate people living here with a means of securing delivery to a designated address”.

The genie is therefore out of the bottle in respect of online access to the abortion pill. The grave concern that doctors have as a consequence of this reality is the potential for harm caused by the use of unregulated medication by Irish women and girls.

“I believe it is a matter of priority for the Oireachtas to address the reality of this situation.”

In October Dr Rhona Mahony, Master of the Holles Street Maternity Hospital, spoke about the need, in her view, to decriminalise abortion in Ireland.

“There are no other areas where people are charged with making medical decisions under the shadow of a custodial sentence of 14 years. We had a chance to discriminate that in the case of the Protection of Life During Pregnancy Act, and we chose not to do that. And I think that was a mistake,” she said.

original Dr Rhona Mahony Source: Oireachtas.ie

Mahony outlined the difficulties doctors in Ireland face when determining if a woman’s life is at significant risk, at which point a termination is currently permitted here. “We shouldn’t have to wait until a woman is at a substantial chance of dying,” she stated.

Later that month Professor William Binchy told the committee the “right to choose” is a “half-sentence”, and if completed would become “the right to choose to end the life of a human being”. He said the CA’s recommendations would facilitate “wide-ranging abortion” and urged the committee to not go down that road.

Binchy campaigned in favour of the Eighth Amendment 35 years ago. At the hearing he said the amendment has been “a considerable success” and has “undoubtedly saved lives”. During this hearing, independent Senator Rónán Mullen said Binchy has for years been “a voice of sanity and compassion in an increasingly uncaring world”.

International experts

The committee also heard from international medical and legal experts, including some from the UK and the Netherlands – where most Irish women and girls go when seeking terminations abroad (the vast majority go to the UK).

Dr Patricia Lohr, Medical Director of the British Pregnancy Advisory Service, was among them.

Speaking about Irish women travelling to the UK for abortions, Lohr stated: “Last year (2016) 3,625 women were recorded in the annual abortion statistics produced by the Department of Health in England as having given an Irish address when they presented for treatment. Over the past 10 years, the number of women giving Irish addresses has fallen from 4,600 in 2008.”

original (6) Dr Patricia Lohr Source: Oireachtas.ie

She said this decline may be underpinned by a number of factors including “better access to contraceptive services, and emergency contraception, increased access to abortion medication, as well as raised awareness that free treatment can be obtained with a UK address”.

Lohr told the committee that BPAS has been providing abortion care to women from Ireland since 1968.

There is little difference between the reasons why women from Ireland present compared to those from the UK – they will be diverse and multifaceted, involving financial hardship, knowledge that her family is complete, inadequate partner or family support, domestic violence, or simply feeling they are not in the position to care for a baby at that point in their lives.

The following day Professor Eva Pajkrt, Professor of Obstetrics at the University of Amsterdam, addressed the committee. At this hearing, the issue of aborting babies with Down syndrome was discussed.

Fine Gael TD Peter Fitzpatrick asks Pajkrt if a woman’s right to choose is, in her opinion, more important than a baby with Down syndrome’s right to life.

original (8) Peter Fitzpatrick Source: Oireachtas.ie

Pajkrt said it is, and told him the number of children with Down syndrome being born in the Netherlands – about 250 a year – has remained stable for years and has not dramatically reduced since the introduction of more prenatal screening.

She said people who have children with disabilities should be supported, adding the Netherlands is “a country where we care for everybody”.

When Fitzpatrick asked her about adoption, Pajkrt said doctors should listen to what a woman has requested, rather than try to give her alternative options that she has likely already considered herself.

‘We signed for our baby’s remains like an Amazon delivery, it haunted us’

In terms of personal stories, there was powerful testimony from parents whose children had been diagnosed with foetal abnormalities.

Gerry Edwards, representing pro-choice organisation Termination for Medical Reasons Ireland, told the committee: “Receiving the news that our much loved and wanted baby is going to die, or that their quality of life will be severely impacted is completely devastating.

“I can’t begin to describe the pain in that moment to someone who hasn’t experienced it.”

original (9) Gerry Edwards Source: Oireachtas.ie

Discussing the death of his son Joshua, Edwards said he and his wife “felt we were treated like outcasts here”.

We didn’t get to attend our son’s cremation, we didn’t know when it was. [A few weeks later] we signed for him like we would any Amazon delivery. It really haunted us that we weren’t there.

At the same hearing, Claire Cullen-Delsol spoke about the death of her daughter Alex in the womb. She said women in her situation are “in the nightmare situation of looking like we’re expecting a baby, while we’re preparing for an enormous loss”.

“We can’t participate in our normal lives, we can’t go to work, we struggle to take care of other children, all our relationships suffer. And according to the Eighth Amendment none of this matters because we’re alive, and that is considered enough.”

At a later hearing, Liz McDermott, representing pro-life group One Day More, spoke about the lack of support she received when she wanted to continue her pregnancy after her son received a life-limiting diagnosis.

original (7) Liz McDermott Source: Oireachtas.ie

After a scan, she said the doctor told her and her husband their baby had shortened limbs and that it wouldn’t be “a problem” if they wished to travel to England for a termination.

“I remember instinctively replying that, no I wouldn’t be going to England. I’d just seen my baby’s face and even though I had no idea how I was going to cope, I had no right to interfere with this child’s life in any way.

“This certainty was instinctive protectiveness more than anything else at that time but I certainly did not relish the prospect of how life would have to change,” she said, later telling the committee that John was now 14 years old.

Perceived bias

Throughout the course of its work, pro-life organisations and members of the committee accused it of being biased as the majority of witnesses favoured repealing the Eighth Amendment. Noone and other members repeatedly denied these allegations.

At the start of the public hearing held on 22 November, the committee addressed accusations of bias. Social Democrats TD Catherine Murphy had called for the committee to discuss the allegations, a move supported by a number of other members.

original Catherine Murphy Source: Oireachtas.ie

“The notion that there’s 24 on one side (pro-choice) and four on the other (pro-life) is utter nonsense. Facts don’t alter,” Murphy said, adding that all witnesses and their evidence should be respected.

Fine Gael TD Kate O’Connell echoed Murphy’s sentiments, noting that some members changed their opinions throughout the course of the committee’s work. “People will say ‘they’re all pro-choice’ – well maybe the world is becoming more pro-choice,” she said.

Three members – independent TD Mattie McGrath, Fine Gael TD Peter Fitzpatrick and independent Senator Rónán Mullen – were extremely critical of the committee.

In October, the committee voted to recommend that the Eighth Amendment should not be retained in full, meaning it will recommend a referendum be held.

The final vote was as follows:

  • Yes: 15
  • No: 3
  • Abstentions: 2

The three No votes were Mullen, McGrath and Fitzpatrick. The two abstentions were Fianna Fáil TDs James Browne and Anne Rabbitte.

At the time Mullen and McGrath both opposed the vote taking place, calling it a “farce”. They wanted the vote to be deferred until all witnesses had been heard.

original (3) Mattie McGrath Source: Oireachtas.ie

McGrath later said this vote amounted to the committee voting in favour of abortion, and proved its bias. He said he understood why pro-life groups refused to attend, given the “predetermined outcome” of the committee’s work.

At the hearing which discussed perceived bias, Fianna Fáil TD Anne Rabbitte, who has described herself as pro-life, said it’s not the committee’s fault that certain groups rejected invitations to attend. However, she said replacement witnesses with a similar viewpoint should perhaps have been sought out.

People Before Profit TD Bríd Smith was among those to defend Noone, saying she had been unfairly undermined as chairperson. Sinn Féin TD Louise O’Reilly added that Noone “enjoys the support of the vast majority of the members of the committee”.

Fianna Fáil Senator Ned O’Sullivan said the treatment of some of the witnesses “borders on un-Christian”, and questioned why certain members stayed on the committee if they had so little faith in its work and their colleagues.

Many of us are on a learning curve here, I find my position has changed because of the information I have received.

Mullen disagreed with the other members, saying the committee was “belatedly” discussing bias because “the cat is out of the bag”. McGrath added that other committee members “are waiting to jump on us”, referring to himself, Mullen and Fitzpatrick.

In response to the committee’s official report on 20 December, the three men produced a ‘minority’ report calling for “a fresh Citizens’ Assembly to be convened which would examine how positive alternatives to abortion could be promoted in the context of a retained Eighth Amendment to the Constitution”.

Learning curve

O’Sullivan wasn’t the only person whose views changed somewhat over the course of the hearings. Fine Gael TD Bernard Durkan and Sinn Féin TD Jonathan O’Brien both spoke about the learning curve they were on throughout the process.

On 13 December, when the majority of committee members (14-6, with Noone abstaining) voted in favour of repealing the Eighth Amendment, Mullen stated that legalising something because it is already happening amounts to saying we should have no laws whatsoever.

Durkan responded by saying that the alternative is “we ignore it altogether and we pretend it’s not happening”, adding that abortion would still be criminalised.

Speaking about the risks to a woman’s health that can arise during pregnancy – and how quickly some situations can deteriorate – Durkan said: “In the interest of health and safety it is better that action can be taken sooner than later.”

O’Brien previously described himself as pro-life, at odds with his party’s official position. However, he ultimately voted in favour of repealing the Eighth Amendment.

In the hearing held on 22 November, O’Brien said he doesn’t view himself as pro-life or pro-choice, rather as “a realist” after listening to the evidence. He publicly said that working on the committee had changed his viewpoint.

‘Those under 52 years of age have never had their say’

In her foreword to the committee’s report, Noone said the group’s work was “never about reaching a consensus as the issue is too divisive”.

She said the majority-view of the committee was “somewhere between the two traditional polar positions”, adding: “This is also, in my option, a reflection of the opinion of Irish society.”

Noone said that many members “travelled a journey during the process and have stated on the record that the evidence helped them come to a position, which shows the value of our work”.

She wrote: “The main conclusion of our work is that we need some change and in order to effect that we need to amend the Constitution to remove article 40.3.3.

After many years of public and political debate on the issue, the people will have their say. Those under 52 years of age in this country have never had the opportunity to have a say on this matter.

“The key change we want to make is to modernise healthcare by placing the woman at the centre of it.”

Noone said, over the course of the committee’s hearings,  she learned “that every situation is unique and the evidence has shown that medical practitioners do not feel supported by the law in providing necessary care for the women of Ireland”.

“Women have felt the need to look into different options – travel and more recently the availability of illegal abortion pills has come into focus and we cannot continue to ignore this.”

The next step will be up to the public on 25 May.

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Órla Ryan

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