The Labour Party #repealthe8th Proposals: An Analysis

This is cross-posted from Human Rights in Ireland

Today the Labour Party became the second party to outline its plans for repeal of the 8th amendment and the possible legislation that would follow constitutional change (the first was the Green Party, whose proposals I analysed here). The proposals seem to have temporarily disappeared from the Labour page, but the Heads are uploaded here.

I must start this post by saying that, together with nine others (Mairead Enright, Vicky Convway, Mary Donnelly, Ruth Fletcher, Natalie McDonnell, Claire Murray, Sheelagh McGuinness, and Sorcha uí Chonnachtaigh) I was involved as an independent expert in the Labour Women Commission on Repeal of the 8th Amendment. This Commission comprised a political group, a medical group, and a legal group. Our job, as the legal group, was to propose a piece of law that might act as a “model” for post-amendment legislating, listening to the views of the medical experts and feeding into the political decision-making processes of the political group.

Our involvement did not mean that the political group would automatically endorse our proposals, or that the Labour Party’s policy objectives would determine our proposals. Inevitably, the context in which we undertook the task of drafting such a law informed our approach to it, and we explain the thinking behind our draft law here. The draft law itself was published open access here. As is clear from the analysis that follows, the final proposals from the Labour Party adopt some, but not all, of what we proposed (just as the Green Party proposal did), and we all remain at the disposal of other political parties to discuss the proposals as they (we hope) formulate their policies on abortion coming up the general election.

Although the analysis below raises some questions for the Labour Party in respect of its announcement today, it is important to note that the commitment of the party to think deeply and take on board the perspectives of others—sometimes changing their position substantially in response to persuasive arguments of principle—is to be commended. There is a risk that those who put their positions into the public domain have to answer for the detail of their ‘models’ (as they should), but those who refuse to even propose a model (either because of political cowardice or a lack of sufficient esteem for women and appreciation of reality) don’t have to articulate any substantial position on how abortion might be regulated. I thus offer this analysis very much in a constructive and admiring spirit.

A Note on Language

To start with, I want to make a small note about language and especially about the word “abortion”. Nowhere in the Labour Party document released today does the word “abortion” appear; instead the document speaks of “termination of pregnancy”. This is, to me, significant for two reasons.

The first reason is that “termination of pregnancy” is taking on the status of a term of art in Ireland, used to mean not only abortion (as commonly understood) but also early termination of pregnancy by premature delivery. This has become clear from the implementation of the Protection of Life During Pregnancy Act 2013. Although the Labour policy endorses repeal of the PLDP Act (which is very much welcome), a question arises as to the extent to which “termination of pregnancy” may have become engrained in medico-legal practice as a wider concept than abortion, i.e. to include early delivery. If that were so, satisfying the grounds laid down in the Labour scheme might not mean one is entitled to access abortion; it might simply mean one can terminate one’s pregnancy. This in turn may leave to medics the decision about how that pregnancy is to be terminated if, for example, the foetus were approaching (or had already reached) what the doctor considered viability. I do not believe that is the intention here, but the term would have to be carefully defined. Head 1 of the proposed bill does make it clear that the term would be defined in any such piece of law, but how? And why use that term—with all of its associated baggage—rather than “abortion”?

This brings me to my second point about language: no amount of linguistic sleight of tongue will make repeal of the 8th amendment and introduction of a subsequent legislative framework about anything other than abortion and reproductive justice. Using an ambiguous term is unhelpful, unnecessary, and arguably unprincipled. The Labour Party supports the provision of legal abortion in Ireland. It does not—as this draft makes clear—support anything approaching ‘free, safe and legal’. But it supports the availability of legal abortion. And so it should call it what it is. There is nothing dirty or shameful about it. Abortion is a medical procedure, a choice, and a reality. Let’s simply call it what it is.

Accessing Abortion

The Labour Party is not proposing access to abortion without grounds at any stage of a pregnancy; rather, the model proposed here is grounds based. It can be divided into five grounds (i.e. five routes of access to legal abortion), all of which apply at different stages and in different circumstances. The grounds are risk to health (which we also proposed), risk of severe or disabling damage to health (also in our draft), risk to life (also in our draft), risk to health where the pregnancy emanates from rape or other sexual offence (which we did not propose), emergency care (which we propose), and fatal foetal abnormality (which we also propose).

Let me start with the two health grounds; i.e. Heads 4 and 5 in the Labour draft. The idea of differentiating between the availability of abortion for a risk to health per se and a risk of severe or disabling damage to health makes structural sense where abortion is grounds based. Here, as in our draft (Heads 5 and 6), there is a difference in time limits: abortion where there is a risk to health would be available up to 12-weeks (Head 4, Labour; Head 5 of our draft) with no time limit specified for the more severe risk (Head 5, Labour; we proposed 24 weeks). However, two problematic elements are worth noting.

First, the risk is to be “medically certified” but there is no specificity in the Labour draft as to (a) how many doctors would need to certify to the risk, and (b) the role that the pregnant woman’s perception as to the risk posed to her health would play. This contrasts with our draft, where we specified that two practitioners should sign off on the risk but that, in doing so, they must “have taken account of the pregnant woman’s views on the impact of the continuance of the pregnancy on her health” (Heads 5, 6 and 7).

Second, the Labour draft uses the phrase “real and substantial risk” in these Heads. I cannot express my opposition to this in strong enough terms. Such language reinscribes X Case type decision-making into a new scheme without any legal or constitutional justification. The Labour Party notes that this is language with which medics are familiar, and indeed it is, but familiarity and workability are vastly different things and the reproduction of any kind of ‘X Case Lite’ approach in post-8th Amendment legislation is to be strongly resisted. I hope that the Labour Party will revisit and rethink this in due course.

The risk to life provision—Head 6—is as close to a legislative reinstatement of the X Case as one can imagine. The scheme describes it thus:

A provision to enable access to termination of pregnancy on medically certified grounds where the continuance of the pregnancy would entail a real and substantial risk to the life of a pregnant woman.

Clearly the same arguments about the use of “real and substantial” and vagueness about medical certification arise here as did in respect of the health grounds, and the framing of this provision is a real disappointment. I can be contrasted with Head 7 of our draft, which provided:

  1. An abortion may be performed by a registered medical practitioner, or other health care practitioners under their supervision, if:

    • Two registered medical practitioners are of the opinion, formed in good faith, that the continuance of the pregnancy would entail a risk to the life of the pregnant woman; and
    • The abortion is performed at an authorised location; and
    • In forming their opinions, both registered medical practitioners have taken account of the pregnant woman’s assessment of the potential risk to her life.
  1. “Risk to life” includes the risk of suicide.

In my view, the Labour Party’s decision to frame their risk to life ground in such restrictive terms requires robust defence. It is to be hoped that journalists and politicians will engage constructively with the Party to delve into the thinking behind this.

The Labour Party proposes a rape/sexual offence ground in Head 7 of their proposal. I have already outlined my opposition to a rape ground in any legislation (when analysing the Greens’ proposal and, as part of the group, when deciding against such a ground), but it should be noted that the ground here seems simultaneously wider and narrower than the ‘risk to health’ grounds per se. It is wider because, where the pregnancy arises from rape or other sexual offence, a mere “risk to the physical or mental health of the woman” (medically certified) will suffice to provide access to abortion should that be desired. It is narrower because the risk to health must arise out of the pregnancy, which itself must be a result of rape or sexual offence, thus creating at least four layers of evidence before abortion can be accessed. These are:

  1. There was a rape or sexual offence.
  2. The pregnancy in question arises out of that.
  3. There is a risk to the woman’s health.
  4. That risk arises out of the pregnancy arising out of the rape of sexual offence.

How these things are to be established, what standard of proof will be required (probably? certainly? possibly?),and to whose satisfaction they must be established is anyone’s guess at this stage. I would hope that the Labour Party will carefully reconsider its decision to include a rape ground here.

The fatal foetal abnormality ground (Head 8 in the Labour proposal) is sensible, but there is no definition of fatal foetal abnormality. Clearly, the definitional question here is controversial and important: there is a marked difference between definiting a fatal foetal abnormality in terms of “certain” outcomes and “likely” outcomes. Our draft favoured the latter for reasons of workability and medical reality (Head 8). It is not clear from this which the Labour Party favours.

Criminal Offences

A very welcome development in the Labour draft (which we also proposed in Head 4) is that the Regulation of Information (Services Outside the State for Termination of Pregnancies) Act 1995 would be repealed in its entirety. They also claim, in their Head 3, that abortion will be decriminalized where it takes place “in accordance with the legislation”. Presumably it will remain criminalized in all other situations, even though the law of assault and medical professional regulation are well able to deal with the provision of abortion outside of these circumstances. The maintenance of criminsalisation is a disappointing, if politically understandable, position (the Green Party would also maintain the criminal offence, which I criticised here), and it is to be hoped that there will be further reflection on the heuristic impacts of criminalisation on doctors in ‘borderline’ cases in respect of risk and gestational age, for example.

I also welcome the proposal, in Head 15, for “A provision to make it an offence to obstruct or impede any person seeking to access a location or premises at which terminations of pregnancy are being carried out in accordance with the legislation”. We proposed this in our draft legislation (Head 15), motivated by a concern to ensure that abortion would be practically accessible and that intimidation of those involved in accessing or providing abortion care would be minimized.

Ensuring Provision

Of course, ensuring the actual provision of abortion care throughout the country will be key to securing a workable legal and medical framework following repeal of the 8th Amendment. The offences proposed in Head 15 are a welcome start, but attention must also be paid to conscientious objection and to the potential that widespread conscientious objection might undermine practical accessibility. In this respect, the Labour provision on conscientious objection (Head 11) is disappointingly vague. While it provides that medics can claim a conscientious objection, it does not specify in its current form what procedure the objecting medic must follow (for example, referring the patient to a doctor who does not have such an objection—see our Head 11). Nor does it make clear whether or not institutional claims for conscientious objection will be permitted (we recommend that they not be: Head 11). The latter is especially important, I think, in a context where so many medical care facilities are operated under a religious ethos and it would be interesting to hear more about the Party’s thinking on this matter. Furthermore, our draft placed a statutory responsibility on the Minster for Health to ensure availability:

The Minister for Health retains the responsibility of ensuring that a safe and timely service is maintained for patients when accommodating conscientious objectors. In particular, it shall ensure that all authorised locations under Heads 6-8 have at their disposal the means enabling them to perform abortions under this Act.

There is no such proposal in the Labour document published today, and I consider it important to think about the ways of ensuring access in practice as well as access in law in any future system of provision.

Conclusions

The Labour scheme does a number of other important things, drawing directly from our proposals. It proposes that there would be a set of legislative principles underpinning interpretation and application of the law, including that ‘sustaining embryonic and foetal life in pregnancy should be recognised as an important social role which should be voluntary and consensual’ (see our Head 3). There are obvious tensions between this principle and the extremely high threshold laid down for accessing abortion due, primarily, to the use of the “real and substantial” standard. In spite of this, the statement of principle and its endorsement by a major political party is welcome.

So too is the express reference to ensuring that the general provisions as to consent should apply to abortion care (Head 10 of the Labour scheme; Head 10 of our Bill), although there are clear tensions between this and the fact that, without fulfilling the high standards laid down for accessing abortion, a woman could be kept pregnant without her consent. Should the “termination of pregnancy” definition be sufficiently wide to encompass early delivery, questions about consent and invasive procedures such as C Sections also arise. These potential dissonances within the scheme proposed will need careful working out as a draft law is developed.

Finally, the Labour scheme proposes the establishment of a review body along the same lines as we proposed (our Heads 12-14): a welcome development, I think.

Overall, then, this is an interesting but not unproblematic proposed scheme, emerging from a long process of reflection and consultation. For that, as I said at the start of this post, the Labour Party is to be commended. Notwithstanding this, there are serious questions to be asked about the threshold they propose to apply, the inclusion of a rape ground, and the operation of conscientious objection.

As ever, I look forward to seeing what other parties come up with, especially Fianna Fail, Fine Gael, Sinn Fein and the Social Democrats. It is surely now clear that #repealthe8th is a live election issue. Can parties contesting the general election really continue their apparent policy of non-engagement?

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fdelondras

Professor of Global Legal Studies, Birmingham. Lawyer, foodie, wonk, avid traveller.

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