This is cross-posted from Human Rights in Ireland
The Green Party has released a reproductive rights policy in advance of the general election. The policy is very welcome, and is a further indication that reproductive justice is likely to be a central issue in the forthcoming election. The policy is especially interesting in that it speaks to a broad approach to reproductive rights, endorsing better maternity care and more choice in maternity and birthing options, and committing to access to safe and affordable contraception. This is a very welcome development. The publication of this policy also speaks to the Green Party’s decision to support repeal of the 8th Amendment by means of a referendum, although its support is given “on the condition that the Government have provided draft legislation which will be put in place if the referendum passes”. It is on this proposed law that I want to concentrate here.
The Green Party outlines a skeleton structure of any law that it would introduce following a successful referendum to repeal the 8th Amendment. Although the policy does not include a full draft law, it does outline the main principles underpinning their proposed legislative scheme for access to abortion. For the Green Party, abortion would be available “on grounds”, specifically where there is a fatal foetal abnormality, rape, incest, or endangerment of the health or life of the pregnant woman.
The first note of concern arises for me in the proposal to include rape/incest as specific grounds. When preparing our draft legislation (the Access to Abortion Bill), which we published open access, ten feminist lawyers (Máiréad Enright, Vicky Conway, Fiona de Londras, Mary Donnelly, Ruth Fletcher, Natalie McDonnell, Sheelagh McGuinness, Claire Murray, Sinéad Ring, and Sorcha Uí Chonnachtaigh) decided against any such ground, which we explained thus:
We have not proposed an independent ground of abortion on the basis of a pregnancy resulting from rape or sexual crime under this Act. It is important to avoid exposing pregnant women to damaging engagement with the criminal justice system or the police, which might lead to delay in access to healthcare, or to further degradation and distress. For similar reasons, there should be no requirement that women who have been subjected to sexual assault are subjected to distinctive (and in any case ineffective) medical examinations as a precursor to accessing abortion care.
My view is that rape/incest grounds are unnecessary and potentially damaging. They are proposed and included by politicians often because there is a sense that they are where there is a pre-existing popular agreement that abortion may be justifiable. However, the political win is not worth the practical costs to women in these situations. The health ground ought to be broad enough to include pregnancies arising from rape/incest without the damaging elements of having to declare and somehow establish that one has experienced these grounds. I urge the Green Party to rethink this.
The Green Party’s approach to fatal foetal abnormalities is appropriate. It does not defines these in a limited way to situations where the foetus is sure to die in the womb should the pregnancy continue. Rather, it uses the more effective language of situations where the foetus is unlikely to be born alive, likely to die during birth, or unlikely be capable of sustaining independent life. This is precisely the wording we suggest in Head 8 of our draft Bill and I think reflects better the reality of FFA than phrases such as “certain” to die during pregnancy, for example.
I very much welcome the Green Party’s approach to assessing risk to the health and life of the pregnant woman. They propose requiring two doctors’ sign off, which we also proposed albeit with some reluctance. They also propose ensuring that the medical practitioners would take into account the pregnant woman’s assessment of potential risk to her life or health (including mental heath), and specify that the risk to health need not originate with the pregnancy. In addition, it can be a risk that has already materialised or may be expected to materialise in the future. Again, this is precisely as we proposed in Heads 5 and 6 of our proposed law, and reflects a concern with ensuring that a new legal regime would be deeply informed by autonomy, self-determination, and welfare of the pregnant woman.
Under the Green Party’s proposal, time limits would be decided by an expert medical group in the process of developing the final legislation. This is sensible, although one would hope that the expert group will include people practising outside of Ireland as well as inside of the country. This reflects the fact that since 1983 medical practice in Ireland has been so determined by the existence of the 8th Amendment that a gap has opened up between best medical practice in Ireland and best medical practice internationally so that a mixed expert group would be appropriate.
The Green Party also adopt our approach (in Head 11) to conscientious objection, which recognises the practitioner’s right to object but requires him or her to inform the patient in writing and to facilitate transfer to another practitioner. As we do, they propose a statutory duty on the Minister of Health to ensure that conscientious objection does not effectively undo availability of abortion, and prohibit institutional invocations of conscientious objection. They also propose the establishment of an independent review body to deal with appeals from decisions to refuse abortion care (Head 12-14).
Unfortunately, however, the Green Party does not propose to decriminalise abortion. Rather they say:
The Green Party would not prosecute women who obtain abortions, however, we recognize the harms of “back-alley” or unregulated abortions, and so it would remain an offence to perform an unregulated abortion or to cause a woman to miscarry through assault.
I question the need for a criminal offence relating to abortion specifically here. The existing criminal law of assault can deal adequately with situations where abortions are performed without a woman’s consent or without lawful authority. Criminalising abortion while permitting conscientious objection is intellectually incongruous and recognises only one form of conscientious behaviour on the part of medical practitioners. When we proposed decriminalisation (in Head 4), we offered the following analysis:
The explicit statement of decriminalisation suggested above is a necessary step towards extinguishing any residual chilling effect arising from the perceived threat of prosecution. The wording is broad enough to cover the activities of doctors, midwives, nurses, pregnancy counsellors and others.
There are several justifications for decriminalisation:
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Once the 8th Amendment is repealed, there is no longer any constitutional imperative for criminalisation either of abortion procedures, or of the provision of abortion information.
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Doctors who do not carry out legal abortions appropriately are already subject to regulatory sanctions from within their own professional bodies, as well as to the law of torts, and the broader law on the regulation of hospitals. Harmful unskilled abortions or coerced abortions – the most likely target of s.22 of the PLDPA 2013 – would be caught by the amendments to the criminal law suggested below.
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Decriminalisation will help to address some of the stigma around abortion care. Stigma generates public health problems by discouraging women from accessing appropriate care before and after abortion.
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Repeal of the Regulation of Information (Services Outside the State for Termination of Pregnancies) Act 1995, in particular, will enable fuller provision of information to pregnant women seeking abortion.
I would urge the Green Party to be open to rethinking the matter of criminalisation, taking these arguments into account.
The Green Party is (to my knowledge) the first party to lay out how it would approach the matter of abortion and reproductive rights following the General Election. This is very much to be welcomed, and stands in contrast to refusals by Fianna Fail and Fine Gael to engage with the issue in any meaningful way. Their proposals are not perfect, but they are considered and it is to be hoped that the Party is open to on-going discussion and debate about the shape of any final law they might propose should they be in a position to do so.
Professor Fiona de Londras 