It is no answer to say that good faith healthcare providers have nothing to fear, when they are still potentially exposed to criminal investigation, says
The Eighth Amendment has been excised from the Constitution and is no longer part of Irish law.
Following the referendum, Minister for Health Simon Harris published the Health (Regulation of Termination of Pregnancy) Bill. When enacted, it will influence not only how women access care and how healthcare providers deliver it, but also how society thinks about abortion.
Every word in the legislation will be critical to the development of a good model of abortion care and to inspiring the confidence of women and of healthcare providers.
And it will determine our ability to deliver on the promise of the May 25th referendum and ensure that the harms caused by the Eighth Amendment never recur in Ireland.
But the bill, published on October 1, is framed around the Eighth Amendment. Part 1 (section 5) of the bill makes abortion a crime. Prosecution of a pregnant woman is excluded and later sections provide defences for healthcare practitioners who are making reasonable decisions in good faith.
However, section 5 (1) is so broadly drafted as to leave healthcare providers open to unfounded or malicious reports to the gardaí, and possible criminal investigation over to their decisions.
This reintroduces the chilling effect which all of the health and legal experts who addressed the Citizens’ Assembly and the Joint Oireachtas Committee on the Eighth Amendment highlighted as a barrier to good care.
When the Joint Oireachtas Committee discussed criminal provisions, the concern of the members was to address potential harms to women, specifically coercion and unscrupulous practice. But the offence in section 5 is defined by reference to an entire act and is surely disproportionate to that aim.
It is extraordinary to propose framing a law this way, after a referendum that removed a rights-violating clause from the Constitution. It is no answer to say that the intent of the bill is not to stigmatise or to say that good faith healthcare providers have nothing to fear. Criminalisation is written into its provisions.
The legislation will determine the development of practice and the highest attainable standard of care. But it is hard to see how best practice will be attainable if the bill as currently drafted becomes law.
For example, the inclusion of a mandatory waiting period in the model of abortion care was a political decision. To ensure that a requirement such as this — not based on evidence and lacking a clear health rationale — does not become a barrier to care, it should be included not in law, but in a guidance document.
But it is in the bill.
The sections on access to abortion after 12 weeks include an inexplicable and unworkable principle that the termination of pregnancy must be carried out by the doctor who first examines a woman and who certifies that her pregnancy involves risk to health or life or involves a fatal-foetal anomaly.
The section on abortion in early pregnancy is confusingly drafted, but open to a similar interpretation. This will be unworkable, in terms of rostering and the reality of the clinical setting.
There is no health-related rationale for this provision. Nor for the recognition of the role of midwives, nurses, and pregnancy counsellors — the committed professionals who cared for women with crisis pregnancies when abortion was denied to them by the State — only in the context of refusal of care and potential offences.
But the bill can be amended. The Oireachtas can ensure that the law is anchored not in the Eighth Amendment, but in the recommendations of the Citizens’ Assembly and the principles of access and of acceptability to women, which derive from international human rights law.
Framing the bill in terms of access would signal that intent to women and healthcare providers.
For example, the long title could be amended to better reflect the core elements of the legislation: The provision of equitable access to abortion care, free of charge, to any woman whose pregnancy has not exceeded 12 weeks and, in cases of risk to life or health or fatal foetal anomaly, thereafter.
Most importantly, a new section, outlining a principle of non-discriminatory access to care, would secure access in practice.
Such provisions are included in the laws in Spain, South Africa, and Victoria, Australia, and would set into Irish law the aspiration of rights-based, women-centred care, free from the harms of coercion and violence.
There is a short window in which legislators can ensure that the law gives positive, normative expression to the rejection of the Eighth Amendment and all its harms. The legislation, as much as the referendum, will be the legacy of this Oireachtas. It cannot be the means of reintroducing the harms of the Eighth Amendment into law.
Lawmakers must not let the opportunity pass to encode the positive, women-centred spirit of the referendum into the law and to secure access to compassionate abortion care for women in Ireland into the future.