Nuala O’Loan
Health Minister Simon Harris 
The View
Although the battle to save the Eighth Amendment was lost, there is still work to do which could result in the saving of many babies’ lives. As I write this article, the draft legislation which will decriminalise abortion in some circumstances has not yet been published.
When it is published, there will have to be consideration of whether the draft legislation is consistent with the Heads of Bill published by the Government in March. Those Heads of Bill were the basis on which the referendum was conducted. What the Heads of Bill actually said, and what the words actually meant, is vitally important.
Rarely do legislative drafters get things exactly right. Often draft legislation can be improved either by Government amendment, or by a vote in either the Dáil or the Seanad. That will be the case with this Bill. There will be opportunities for TDs and Senators to clarify the legislation, tabling amendments for consideration.
The way in which the referendum was conducted seems to have given rise to an expectation that it was the woman’s choice, not just up to 12 weeks but thereafter. That is not what the Heads of Bill say.
On demand
Under Head 7, abortion will be available on demand up to 12 weeks of pregnancy, with a 72-hours gap between the medical consultation and the abortion, a time during which a woman will be able to think and perhaps to access organisations which can help with accommodation and other necessities, for if she rushes into doing that which, given a little more time, she would not have done, that is almost inevitably going to create its own health problems.
It will be important that Government keeps this provision, which will give a vulnerable, possibly frightened woman time to consider her options.
Head 4 provides that there can be an abortion if two doctors certify that “there is a risk to the life of, or of serious harm to the health of, the pregnant woman, and the foetus has not reached viability, to avert that risk”.
There are big questions here. What is viability? Babies survive regularly now after 22 weeks, some even survive after 21 weeks. Most countries use a time limit, such as the UK’s 24 weeks – which we now know to be too long. How will Ireland define when a baby is viable?
The second question is what is serious harm? What makes the possible harm serious? Surely there need to be thresholds for what is serious. Is it an objective or subjective test? A condition which might constitute serious harm to one person might be manageable inconvenience to another. How ‘serious harm’ is defined will determine whether babies, not yet conceived, live. In England the test is ‘grave permanent injury’. That is a higher test than Ireland’s ‘serious harm.’ So what does ‘serious harm’ mean?
The English statistics indicate that Head 4 would rarely be used if the law provided a robust definition of ‘serious harm’. If drafted widely it could result, effectively, in abortion on demand up to viability.
In the UK, 98% of abortions (185,448 in 2017) are done on the grounds that continuance of the pregnancy would involve greater risk to the mental health of the woman than termination. There is no requirement that the injury be serious.
The result is that healthy babies are aborted on a terrible scale. This must not happen in Ireland. That test of serious harm must at least be a real test.
In the English legislation there is no requirement for the two certifying doctors to have met the patient. Surely Ireland will require the certifying doctors to meet the mother?
Head 5 provides for the emergency situation where a medical practitioner is of the reasonable opinion, formed in good faith, that there is an immediate risk to the life of, or of serious harm to the health of, the pregnant woman, and it is immediately necessary to carry out the termination of pregnancy in order to avert that risk.
In 2017 in the UK, just eight of the 194,668 abortions were performed to save the life of the pregnant woman, or to prevent grave permanent injury to the physical or mental health of the pregnant woman. ‘Serious harm” might indicate a lower threshold than the UK’s ‘grave permanent injury’.
Again the issue of how Ireland defines ‘serious harm’ will be vitally important. Abortions would be permissible under this provision up to birth. It is unlikely, given the very good state of Ireland’s maternity services that there will be many cases in which a woman’s life is at risk. Most problems should be picked up and managed before they become serious. The doctor who determines that there is a risk of serious harm must be the doctor who carries out the termination.
Requirement
What will be important here is the requirement that the abortion must be immediately necessary. Will a threat that the mother will commit suicide if she does not get an abortion constitute a risk of serious harm? It may be argued that it will. However it may equally be argued that the test for an immediate termination will not be met. If abortion is not immediately necessary then they will back to the requirements of Head 4, and doctors will have a right of conscientious objection and will be able to refuse to carry out the abortion.
Head 6 provides for termination of pregnancy where two medical practitioners certify that, in their reasonable opinion, there is present a condition affecting the foetus that is likely to lead to the death of the foetus either before birth or shortly after birth.
How will this be dealt with? Will particular conditions be specified? How will the gravity of the condition be measured?
Minister Simon Harris [pictured] said after the launch of the Heads of Bill, that there will be an effective ban on late-term abortions – terminations that take place after the foetus is viable. This will be a profoundly important safeguard against the horror of injecting potassium chloride into the unborn baby’s heart to ensure that he or she dies before being aborted, so that there is no living baby to be ‘dealt with’ after the operation.
Throughout the debate on the Eighth Amendment, the Irish Government made absolutely clear that there would be a right for any medical practitioner, nurse or midwife not to have to carry out, or to assist in carrying out, a termination of pregnancy, other than in an emergency under Head 5, the scope of which is very unclear.
Head 15 states “nothing in this Bill shall be construed as obliging any medical practitioner, nurse or midwife to carry out, or to assist in carrying out, a termination of pregnancy to which he or she has a conscientious objection”.
The key words here are “carry out, or to assist in carrying out”. What exactly do they mean? Particularly what does “assist in carrying out” mean?
Does it mean presence at the operating table? Assisting in the administration of the medication which will induce a medical abortion? What about managing ward resources, supervising other staff?
The people of Ireland were assured that there would be a right of conscientious objection.
The Oireachtas must now legislate to make this a reality, so that doctors, nurses and midwives do not have to participate in abortion, as provided.
It is fundamentally important that they can continue to work in Ireland providing the current excellent care before and after birth, of which the people of Ireland can be so proud.
