Amendments from the Abortion Rights Campaign to the Protection of Life during Pregnancy Bill 2013

Proposed Amendments in respect of the General Scheme of the
Protection of Life during Pregnancy Bill 2013
July 2013

Submission summary
The Abortion Rights Campaign (ARC) has conducted extensive analysis of the
Protection of Life During Pregnancy Bill 2013 and has concluded that without
substantial amendment, it is not fit for purpose.

This legislation does not establish safe and accessible abortion in Ireland as
mandated by the X Case ruling.

In this paper, ARC suggests a range of amendments to this problematic legislation.
Unless significant changes are made, ARC cannot stand behind the so-called
‘Protection of Life During Pregnancy’ Bill.

The Bill is flawed in its criminalisation of abortion seekers and healthcare
professionals under Section 22. Other serious issues include the remaining lack of
clarity, vague terms and provisions with respect to “conscientious objection,” and its
non-medically supported definition of the term “unborn.”

The proposed legislation currently allows for a jail sentence of up to fourteen years
for the estimated thousands of women in Ireland who self-administer the abortion pill
each year, during the early weeks of pregnancy. These women and the friends,
partners, and families who assist them will be subject to penalties for accessing a
procedure that the Irish people and government acknowledged as necessary in the
1992 referendum which guaranteed the freedom to travel.

The UN and Council of Europe have warned that criminalisation creates a far more
dangerous situation for these women – not only those attempting self-abortion but
those who access legal abortion abroad and suffer complications on return to Ireland
(as demonstrated during the A B and C case). They are less likely to seek urgent
medical assistance as they fear punitive fines or prison time. This is legislation we
can’t live with.

We wish to draw attention to the criticism of the European Court of Human Rights of
the inclusion of harsh criminal sanctions in its judgement in the A, B and C v Ireland
case. It concluded that criminalisation created significant ‘chilling factor’ for both
women and their doctors, dissuading healthcare professionals from suggesting a
termination when the termination is medically necessary. When Doctors are forced to
hesitate and check the law before providing treatment to a patient, it is clear that the
law protects neither the patient nor the healthcare providers they interact with. The
so-called Protection of Life During Pregnancy Bill does not make Ireland a safer
place for pregnant women. If anything, this Bill makes it worse.

Not only are the women and families who need access to abortions for fatal foetal
abnormalities not included under this Bill – the definition of the unborn given
specifically ensures that they can’t and won’t have access to the healthcare they
need in Ireland. This is a terrible injustice to the women and families who are a part
of the Termination For Medical Reasons (TFMR) group and those many thousands
of others who have suffered the indignity of travel to access a necessary abortion.
This legislation would most likely not have clarified procedure enough to save Savita
Halappanavar’s life and those future women facing similar emergency medical
situations. What are the people of Ireland and all over the world to think and feel,
knowing that even after the passing of this law, she and others could still be left to
die in the Ireland of 2013?

Unless the Protection of Life During Pregnancy Bill is amended to remove the
criminalisation and provisions are made to provide real access to abortion in Ireland,
we are all no better off than before. This is legislation we simply can’t live with.

Section 2. (1) – Interpretation
ARC believes that the proposed definition of “unborn” (“unborn” as “human life
means following implantation until such time as it has completely proceeded in a
living state from the body of the woman”) is unnecessarily restrictive and will have
the effect of forcing women to carry to full term pregnancies which are non-viable.
In the D v Ireland case in the European Court of Human Rights, the State’s own
counsel stated that there was a tenable argument that the right to life of the foetus
under Article 40.3.3 is not applicable where a foetus had no prospect of surviving to
birth and thus would not be considered “unborn” for the purposes of Article 40.3.3.
The definition proposed in the current Bill explicitly rules out the prospect of lawful
terminations taking place within Ireland under those circumstances, which will force
women in those circumstances to continue to pay for costly private treatments in UK
hospitals. A failure to provide lawful terminations in those circumstances may give
rise to liability under international human rights law; it may qualify as cruel, inhuman 2and degrading treatment and also violate international standards prohibiting violence
against women and violate the International Convenant on Civil and Political Rights.
An alternative definition should be proposed. “Unborn” should be defined to mean a
foetus which is capable of independent life.

Recommended amendment:
In page 7, to delete lines 10 to 12 and substitute the following;

“unborn”, in relation to a human life, is a reference to such a life during the period of
time commencing after implantation in the womb of a woman and ending on the
complete emergence of the life from the body of the woman, save where this life will
not survive outside of the womb.

Section 3 – Appropriate institutions for the purposes of Act
The Bill fails to ensure that women who find themselves with life-threatening risks in
pregnancy will be guaranteed treatment in a speedy timeframe. The lack of
emphasis on immediacy of access to treatment results in women still not having the
legal certainty of when they may access an abortion. There is nothing within the Bill
to ensure that a medical practitioner must act with urgency in either performing the
treatment or referring her to a practitioner who will if they have a conscientious
objection to performing an abortion.

Minors who are in the care of the state are in a de facto more vulnerable position
than adult women, and there is no emphasis on the urgency of their treatment.

Recommended Amendment:
In page 8, after line 5, to insert the following;

-All appropriate institutions shall ensure that the necessary personnel are
available for the provision of treatment to women under the provisions of this Act.
-Medical practitioners shall act with appropriate urgency in determining whether a
woman is entitled to medical treatment under this Act, or if transferring care of a
patient due to a conscientious objection.

Sections 7 and 9 – Risk of loss of life from physical illness; Risk of loss of life
from suicide
It is the view of the Abortion Rights Campaign that in order that there is clarity given
to medical practitioners as to when they may perform an abortion and to women as
to when they may have an abortion, it is essential that the full X criteria as set out in
the Supreme Court judgment is reflected in the legislation.

The judgment stipulated that an abortion was lawful if a woman had a “real and
substantial” risk to her life, but also that this risk need not be imminent or immediate.
It is essential that pregnant women are not left in a position where they are
compelled to wait until the risk to their life is immediate or imminent.

Recommended amendment:
In page 9, line 3, after the word ‘loss’ to insert the following words;
which need not be imminent or immediate

Section 9 – Risk of Loss of Life from Suicide
The provisions of Section 9 differentiate between risks to physical and mental health
and furthermore place obstacles in the path of a woman seeking an abortion on the
grounds she is suicidal that makes the legislation practically unworkable.

The X Case judgment is very clear that a woman who has a real and substantial risk
to her life is entitled to an abortion where this risk is as a result of being suicidal.

Where the risk is as a result of physical illness, two doctors may make the decision
but where there is a risk of suicide, three doctors must make the decision.

Psychiatrists routinely make diagnoses of suicidal intent and there is no requirement
for a second psychiatrist when a pregnancy is not involved. ARC further questions
the wisdom in requiring an obstetrician in making a diagnosis of suicidal intent.

Recommended Amendment:
The number of doctors assessing whether a woman qualifies for an abortion under
this legislation should be the same for risk of life from physical illness.
The same number of doctors should be reflected in the appeals process.

Section 22 Destruction of unborn human life
The European Court of Human Rights have clearly stated that the risk of a criminal
penalty for a doctor who performs an abortion constitutes a “chilling factor” for
medical practitioners. Section 22 reinforces these chilling factors.
Further to this, it is also clear that criminalising women who perform abortions on
themselves using medication does not reduce the number of women having
abortions in this way.

Recommended Amendment:
Section 22: Section Opposed.