Pro Choice: No way around fact legislation is required

THE long-awaited report of the expert group on the judgment in A, B and C v Ireland was published yesterday, and much of what was contained therein will not have come as a shock to those who have been following the debate on the issue.

The creation of an expert group in the first place was a mechanism designed by the then government to put off the inevitable act of legislating for the X case judgment which was handed down by the Supreme Court in 1992 that said pregnant women had a constitutional right to an abortion where it was established that as a matter of probability she had a real and substantial risk to her life.

Irish governments have form in this regard and this particular expert group is not the first to have deliberated on the matter.

The constitution review group did it in 1996, concluding that legislation was “the only practical possibility”. The drafters of the green paper on abortion examined the matter again in 1999. One could wonder what the value was in asking them to look at the issue if it was to happen again in 2012, and furthermore if we will be revisiting the matter again in 10 years’ time.

The group itself was clear in adhering to its terms of reference, merely providing “options” as to how the State could comply with the terms of the ABC judgment as opposed to hard and fast recommendations, reiterating that there is no accessible and effective procedure for a pregnant woman to establish whether she qualifies for a lawful termination under Irish law.

The State is now under a legal obligation from the European Court of Human Rights to rectify this legal vacuum and to a certain extent the expert group was established to state the obvious — that it is now time to legislate for the X case. It is obvious from the report itself that, despite the provision of “options” the group were of the view that legislation is what is needed to comply with the judgment.

The four “options” presented are non-statutory guidelines, statutory regulations, standalone legislation, and legislation with regulations. Clearly, non-statutory guidelines would still carry the “chilling effect” of the potential criminal sanctions of “penal servitude” for doctors and women contained in the 1861 Offences Against the Person Act — a position that would not comfort the pregnant woman with a life-threatening condition or the medical practitioner tasked to provide her with care.

In real terms, this framework would not have changed the position that Savita Halappanavar and her doctors were in when she presented to University Hospital Galway on Oct 21.

The Government could opt to introduce regulations, but the minister would still need a piece of legislation that provided a legal basis that allowed him to do so.

The final two options both require legislation. There is no way around it. Legislation is required and it is just a matter of when.

It is a complex document and provides a range of options but also outlines the principle that regardless of the option that the Government chooses to proceed with, “it will always be a matter for the patient to decide if she wishes to proceed with a termination following a decision that it is clinically appropriate medical treatment”.

This should provide some reassurance to the anti-choice lobbyists who are under the misguided impression that if lawful abortion were to be introduced in Ireland, even if only in these most narrow of life-threatening circumstances, that women will be forcibly compelled to have them. Medical treatment should always be a woman’s choice.

* Stephanie Lord is a spokeswoman for Choice Ireland, a non-funded voluntary group “working to ensure all facets of reproductive rights are upheld”.