The expert panel reporting back on Tuesday, made up of medical professionals, law specialists and other qualified parties, recommended a number of potential avenues for reform to bring Irish law into compliance with European human rights standards.
The panel floated the notion of a special register for doctors who carry out licensed terminations. It also said that training doctors to provide this procedure would be necessary as there are currently few in Ireland who have the expertise. This is especially important as two doctors are required to sign off on the procedure.
The report also said that, were it to be established that a woman’s life is in imminent danger, there should be the option of bypassing normal processes in order to allow for an abortion, though only in very carefully regulated circumstances.
This follows the death of 31-year-old Savita Halappanavar who was 17 weeks pregnant when she was admitted to University Hospital Galway on October 21 with severe back pain and nausea. She was found to be having a miscarriage.
Despite this, and despite the fact that doctors found that her health was in serious danger, she was denied an abortion because they had detected a fetal heartbeat. Despite her family’s pleading the doctors refused treatment until the fetus had expired. She had, by this time, developed acute septicemia and did not recover.
Two separate investigations are now underway into why Halappanavar was denied a termination despite Irish law providing for her case.
These new recommendations also called on the role of local health practitioners like GPs to be increased. Together with gynecologists and psychiatrists, GPs are ideally placed to determine how denying an abortion can increase the risk of suicide — this, until now, has not been catered for in Irish law.
With regards to how these changes should be made, the expert report highlighted four approaches: Non-statutory guidelines, statutory regulations, legislation alone or legislation plus regulations.
The expert group warned that guidelines alone would not be appropriate as they would not be sufficiently binding. Anything less than a firm legal framework, the group warned, and the government would leave itself open to further court action. It also cautioned against legislation alone, saying that this might be too restrictive and not allow doctors to use their good judgement in difficult cases.
The panel was established after the European Court of Human Rights in 2010 reminded Ireland of its obligations to human rights standards affirmed in the 2005 case known collectively as the A, B, C case. The women turned to the courts arguing that Ireland’s abortion restrictions were a breach of their human rights.
While the first and second case were dismissed, C’s claim proved compelling.
C had been receiving treatment for cancer for three years. After going into remission she unintentionally became pregnant. She claimed that when she attempted to find out whether the pregnancy might in fact be harmful to her own health and whether the fetus should be screened for signs of cancer, she was given insufficient information by her physician. C believed this was because of Ireland’s unclear abortion law and the fact her GP did not want to risk prosecution should he advise that a termination was necessary. As a result C traveled to the UK in order to have an abortion.
However, she was unable to find a clinic as she was a non-resident, and then had to wait a further 8 weeks for a surgical abortion. Not only this, but the abortion had complications. As a result, C suffered prolonged bleeding and infection. She alleged that, back in Ireland, doctors gave her inadequate medical care and that her general practitioner failed to give her proper care after the termination, again because the GP in question did not want to be party to a termination.
The Court found C had been denied an abortion in this, a case where it could be determined her life was at risk, because there was nowhere she could go to secure a legally authoritative determination of what her rights were. The Court noted the chilling effect of Ireland’s abortion legislation that was driving healthcare officials to deny abortions when they would have been legally recognized. The Court called for Ireland to clarify the law.
The report also emphasizes a now 20 year-old Supreme Court ruling known as the X case in which the Supreme Count found that a termination in life-threatening circumstances, including a risk of suicide, was lawful and warranted.
Despite this, and despite the fact that Ireland, per Article 46, must comply with ECHR ruling, subsequent Irish governments have failed to take up the issue because they are aware that abortion reform remains a contentious issue, particularly among Ireland’s strong Catholic conservatives.
Now, according to reports, the government is at least prepared to conscience moving forward, though one notes there is still room for heel dragging:
Earlier in the day, Prime Minister Enda Kenny said the Government was united on the issue.
He said the matter requires careful, calm and sympathetic consideration and he would not be rushed on the issue.
“We’re not going to leave this hanging on interminably,” he said. “I’d like to deal with this as quickly and as comprehensively, when it’s practical to do so. Don’t ask me for a specific date, but it’s not going to be left hanging around.”
It remains unclear as to whether the government will take the expert recommendation to mix legislation with statutory guidelines or whether it will try to bypass parliament and risk further years of unclear regulations.
However, the expert panel’s recommendations do not signal a whole-scale change. Indeed, the expert panel noted that the judgement in the A, B, and C case “provides that it is lawful to terminate a pregnancy in Ireland if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by a termination of the pregnancy. This has not been altered by this judgment.”
In effect, unless the woman can prove she could die as a result of continuing the pregnancy, it is unlikely she will be afforded the right to a termination even after this reform.
This seems in contrast to the reactions from anti-abortion groups like the SPUC who within hours fired off a statement warning this was the beginning of a so-called British “abortion on demand” culture, with the statement saying in part:
We call upon all people of good-will in Ireland, including the Catholic bishops, to back an all-out campaign to defeat – not just amend – any options allowing abortion. This will require widespread resistance to be mobilised. Ireland’s politicians should be put on notice that they will lose their seats at the next election if they vote to legislate for abortion.
Pro-choice supporters have welcomed the report as a first step to reform and now urge the government to act swiftly to change the law.
It is obvious from the options set out in the Report that the Government are left with no option now but to legislate to provide lawful abortions for women where they have life threatening conditions. The Government did not need an Expert Group to tell them this but now that they have, it should be acted on immediately.
Choice Ireland is calling for cross-party support for Deputy Clare Daly’s Bill which will be heard…tonight and tomorrow, allowing for abortion under those circumstances. The Government should allow this legislation to proceed as an emergency measure. It would still allow them to reflect on the options provided in the Expert Group Report.
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