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Wednesday 7 June 2023 Dublin: 13°C
Sam Boal/Rolling News 29/11/2018. Kate O’Hara protests for Free Safe Legal Abortion Legislation outside Leinster House
Opinion Legislating for abortion is very complex and a clear guiding principle is required
The ‘yes’ side contained a wide range of views about when abortion should be permitted – the government can’t please them all, writes Professor Dermot Cox.

THE EIGHTH AMENDMENT did not prohibit abortion – in fact it never mentioned the word abortion, rather it articulated a guiding principle that the foetus had rights that were on par with those of the mother.

The government’s rationale for repealing the eighth was that it tied their hands to legislate in this area. Now it has stated that it will introduce legislation on abortion as this reflects the will of the people in the referendum.

However, the will of the people is not clear on this issue.

The people certainly voted to repeal the eighth amendment, but the pro-repeal cohort was made up of a very wide range of views about when and if abortion should be permitted. 

Some were ideologues who believe that women should have total control of their bodies in all circumstances.

Others believe that there is a point – although they do not agree on when that point is – before which the foetus is not alive and thus abortion is acceptable early in pregnancy. 

Another group believes that abortion is wrong except for in certain extreme situations when it is a necessary evil, but they wanted the Dáil to legislate for it rather than having it in the constitution. 

So which group of those who voted to repeal is the government going to accommodate?

Certainly, no legislation will appease all of these groups.

Defining Abortion

The constitution is best suited for stating general principles that apply such as equality, while legislation must focus on specifics rather that general principles.

For instance, the Dáil has clearly expressed the view that people should not drive too fast or while drunk. This is a very clear and reasonable vision and yet how many times has the legislation been challenged or cases been thrown out of court on technicalities?

Writing good legislation is very difficult especially in complex areas such as abortion.

So, what must the legislation contain to be effective? The most important thing is to define abortion. This has not been defined up until now as the eighth amendment never mentions abortion. While it may seem obvious, it is far from simple.

The Oxford English dictionary defines it as “the deliberate termination of a human pregnancy, most often performed during the first 28 weeks of pregnancy”.

However, it also defines the medical definition of abortion as “the expulsion of a fetus from the uterus by natural causes before it is able to survive independently”.

Thus, there are two very different definitions of abortion and the medical one is not useful for legal purposes. We cannot prosecute nature for expelling the foetus.

The definition of abortion is critical as has been illustrated in a number of previous cases.

Normal obstetric care

Savita Halappanavar presented to hospital in pain while 17-weeks pregnant and was subsequently diagnosed as being in premature labour. It is alleged that after many hours of labour she requested an abortion but was told by the doctor that this was not legal in Ireland.

Firstly, under the medical definition of abortion she was having an abortion and I think we can all agree that this is not something that we can prosecute in law.

The non-medical definition of abortion states that there must be ‘deliberate’ intention to terminate a pregnancy and this did not apply here. Ms Halappanavar did not want to lose her baby and her doctors did not want her to lose the baby, but she was in labour anyway.

Speeding up the delivery – which like many women is what she wanted – is not performing an abortion. It is normal obstetric practice.

Just as murder requires an intent to kill, abortion also requires an intent to terminate a pregnancy.

So, any law must clarify that normal obstetric management of a pregnancy, no matter what the foetal age, is not abortion and thus is legal.

Some cases implicated by the abortion laws are those involving fatal foetal abnormalities.

An example of this is anencephaly, which is a developmental disorder that results in a failure of the formation of the brain.

When these babies are born they will die shortly afterwards as they cannot live without a brain. In fact, the paediatrician attending the birth will declare the baby brain-dead and order palliative care only.

Currently when Irish mothers who are pregnant with a foetus with anencephaly ask for an abortion they are told that it is illegal, however it is clear that this should not be the case.

The main objection that people have to abortion is that it involves killing of a foetus. 
Yet for decades the definition of death has been accepted as brain-death and without this we could not perform organ transplantation.

It is simply part of normal obstetric care to remove a dead foetus from a mother.

A coherent philosophy

Ultimately the legislation will be coloured by the philosophical attitude of the government – however as they have articulated many contradictory views it is not clear what their philosophical position is. 

It has been stated that it is too difficult to prevent women importing abortion pills and thus no point in attempting to prevent them.

However, there are many laws that are very difficult to enforce including not paying tax on cash payments, using your mobile phone while driving etc but there is no sign that the government will legalise these activities.

They have said that mothers taking abortion pills should do so under medical supervision and not on their own, that is also true of heroin but there is no sign of it being legalised.

We have been told that we should simply trust women as they will do what is best but then they want a 3-day cooling-off period. If we trust women then that is not necessary.

Similarly if we are to allow abortion up to 12 weeks on the basis that the foetus is not yet alive, then we do not need a cooling off period. There isn’t one for the morning after pill. 

If their philosophy is that no woman would undergo an abortion lightly and that we should trust women to make the right decision, then there should be no restrictions at all on abortion. By that rationale women could have an abortion at any stage of pregnancy for any reason – as it would always be the right thing to do.

If the government cannot define its philosophy for abortion legislation there will be serious complications with any legislation it introduces down the line.

Gender Selection

If we allow abortion on demand up to 12-weeks then how can we ban gender and genetic selection?

Currently the new technique, Non-Invasive Pregnancy Testing, can be performed at 10-weeks and only requires a blood sample from the mother. Results are available within 5 days. At present it is approved by the FDA for determining gender and the presence of any chromosomal abnormality, including Down syndrome, Edward syndrome and P syndrome.

The NHS is starting to roll out in the UK this year to facilitate early detection of genetic abnormalities and early terminations.

If the government blocks the early testing here women will still be able to post their sample to the US or just fly to UK for the test.

One thing that is certain is that over the next few years this technology will be available even earlier and the range of genetic abnormalities that will be detected will grow. 

When is a foetus alive?

It has been ruled that the foetus has no rights other than those granted in the eighth amendment.

Most people don’t agree with abortion past the point that the foetus is viable.

So do we now need to introduce rights for foetuses of a certain age and if so what age?

Equally some women who have late miscarriages would like to have a birth and death cert for their baby but this would require the law to recognise them as being alive.

What about a pregnant woman who is assaulted and miscarries as a result? If a foetus is not recognised in law then this is only a minor offense – no different to damaging an appendix.

This is also important when it comes to managing complications of pregnancy. If the foetus is not alive then the HSE have no obligation to treat it especially if that is going to require substantial resources.

Sex education.

What will young women be taught about abortion in school?

Will they be told that there is a choice of barrier contraception, hormonal contraception, morning after pills or abortion pills and that they should use whichever one works for them?

In Japan in the 1980′s and 1990’s contraceptive pills were not available but abortion was freely available.

Or should young women be taught that abortion is an emergency measure only and they shouldn’t use it unless absolutely necessary.

Such an approach would be out of line with abortion on demand for up to 12-weeks and would seem to be more compatible with the UK legislation, that only allows for abortion when there is a risk to the health of the mother or for foetal defects.

Crystle clear laws

What about penalties for abortion outside of those permitted? What if a woman takes the pills when she is 14-weeks pregnant – is she to face a 14-year prison sentence?

What about a woman who chooses to buy the abortion pill on-line rather than going to her doctor and so doesn’t participate in the cooling off period? Is that any different to buying penicillin on-line or is it to be classed as an illegal abortion?

Legislating for abortion is very complex and for it to work it is important that legislators have a clear guiding principle that is reflected in the legislation that they draw up.
Having legislation that is contradictory in principle makes the laws harder to manage and increases the likelihood of a challenge in court.

Many of the previous cases of abortion that got media attention were due to concerns by the treating doctor.

Not knowing how the courts would react to their terminating a pregnancy, doctors chose to be cautious and not terminate, rather than risk a 14-year prison sentence.

Ultimately it is necessary to create legislation that doctors have faith in. They need absolute clarity about what they can and can’t do without having to seek a legal opinion when an emergency arises. 

Professor Dermot Cox, PhD, is a lecturer in Pharmacology at the Royal College of Surgeons. 

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