‘Rape, incest, financial grounds, foetal abnormality (fatal or otherwise), All will now be legitimate legal grounds for an abortion, should the recommendations of the Committee on the Eighth Amendment be accepted by the Government.
“In addition to recommending a straight repeal of the controversial 1983 legally flawed Eighth Amendment, the committee concluded that 12 weeks’ gestation is the appropriate point up to which abortion should be made legal.”
It is fair to say not everyone agrees. Even Taoiseach Leo Varadkar expressed his concern that the 12-week recommendation was “a step too far”.
“I think it is fair to say, for a lot of people, not just in the Cabinet but in the country, the proposal to allow for termination up to 12 weeks went further than many people would have anticipated, it certainly went further than I would have anticipated,” he said in reply to my question.
At Cabinet on Wednesday, a range of views was expressed with concern about the 12-week limit to the fore.
As the Irish Examiner reported on Thursday, Finance Minister Paschal Donohoe and Rural Affairs Minister Michael Ring, despite supporting the recommendations themselves,
expressed doubt that such an abortion regime would be accepted.
Donohoe told the Cabinet that ministers had thus far been able to examine the committee’s report in a calm environment, which may not be the case during a referendum campaign.
Chief Whip, Joe McHugh, told the Cabinet he could not support a system that would allow abortion up to 12 weeks.
Paul Kehoe, minister of state at the Department of Defence, is understood to have highlighted his Catholic faith, while acknowledging that the availability of abortion pills over the internet has become an issue.
It is worth taking a look at just how the 22-person committee, including some very strong pro-life advocates such as Bernard Durkan and Anne Rabbitte, came to recommend that abortion be permitted in all cases up to 12 weeks.
Well, firstly the committee disagreed with the Citizens’ Assembly recommendation on repeal or not. The Assembly argued to repeal but replace it with enabling legislation to ensure the Oireachtas and only the Oireachtas can decide on law.
The committee was unwilling to recommend the removal of this important supervisory jurisdiction of the courts in an area which, without such a constitutional amendment, would so clearly fall within their jurisdiction.
Therefore, the joint committee recommended a straight removal of the Eighth.
So, if you repeal the Eighth, what would replace that?
The committee heard that the 2013 Protection of Life During Pregnancy Act allows for two lawful grounds for abortions. Yet, evidence given to the committee was that the operation
of that act has created significant difficulties.
As a result, the Assembly further recommended that no gestational limit should apply. However, a 22-week gestational limit was recommended in relation to suicide and the risk to the life of the mother.
Ultimately, the committee concluded no differentiation should be made between the life and the health of the woman.
The committee felt that the 2013 act has the potential for such delay that women in a position to do so are likely to bypass the process and go abroad to have a termination.
In cases of rape, incest and other sexual assaults, the Citizens’ Assembly recommended that the termination of pregnancy that is the result of rape be lawful up to a 22-week gestational limit.
While the committee accepted that it should be lawful to terminate a pregnancy that is the result of a rape or other sexual assault, it had concerns about how to address such scenarios in law.
These concerns stemmed from the difficulty in verifying a rape or sexual assault. The committee felt that there is a need to avoid the further traumatisation of a victim of rape or sexual assault that would arise if some form of verification was required.
Also, a requirement for a verification process is likely to be complex or even unworkable in practice, the committee concluded.
A concern was also raised about the underreporting of rape and sexual offences to An Garda Síochána and the authorities generally in Ireland.
“The committee understands why some women find it difficult or impossible to report rape or sexual assault and is accordingly of the opinion that it would be unreasonable to insist on reporting as a precondition for exercising any right to terminate a pregnancy that has resulted from rape or sexual assault.”
Given all these difficulties, the committee found it would be more appropriate to deal with this issue by permitting termination of pregnancy with no restriction as to reason — provided that it is availed of through a GP-led service delivered in a clinical context with a gestational limit of 12 weeks.
In relation to the very tragic cases where the unborn child has a foetal abnormality that is likely to result in death before or shortly after birth, the committee concluded 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”.
In cases of non-fatal foetal abnormalities, whereas the Citizens’ Assembly recommended that termination should be lawful, up to 22 weeks’ gestation, the committee disagreed:
“While noting the burden placed on the woman and the family in such situations, it does not accept that these are sufficient grounds for termination, the committee therefore does not accept this recommendation of the Citizens’ Assembly.”
Therefore, it recommended that 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.
The other major issue the committee dealt with was women who seek to terminate their babies because of socio-economic reasons. The Citizens Assembly’ recommended that termination should be lawful, up to 22 weeks’ gestation, on socio-economic grounds.
The committee said it “cannot ignore the extent to which Ireland has an underlying rate of terminations, the majority of which are carried out either in medical clinics in the UK, or in
Ireland through unsupervised use of abortion pills procured through the internet”.
What became clear during evidence is that the majority of terminations are for socio-economic reasons that are unrelated to foetal abnormality or to rape, the committee found.
In addition, the committee said it is mindful of that group of women who, for financial, domestic reasons or immigration status cannot travel or procure abortion pills over the internet.
Ultimately, given all those factors and the difficulty associated with trying to legally address them, the committee concluded that allowing abortions up to 12 weeks in all cases and without restriction in a small number of cases was the only way to proceed.
“The committee recommended that the law should be amended to permit termination of pregnancy with no restriction as to reason provided that it is availed of through a GP-led service delivered in a clinical context as determined by law and licencing practice in Ireland with a gestational limit of 12 weeks,” the report concluded.
With a majority in Cabinet in favour of the committee’s report, it looks that the Government will seek to implement the report’s findings.
But, Health Minister Simon Harris to his credit, is acutely conscious of allowing space for people to find their way to the point of accepting why the committee landed on 12 weeks.
The country — and the world — is watching what happens next.