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Report of the Expert Group on the Judgment in the A, B and C v. Ireland Case: Statements (Resumed) (Continued)

Thursday, 6 December 2012

Dáil Éireann Debate
Vol. 785 No. 3

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(Speaker Continuing)

[Deputy Patrick Nulty: Information on Patrick Nulty Zoom on Patrick Nulty] That circumstances arise in which abortion is necessary to save a woman's life has been routinely dismissed by those who oppose abortion as some kind of abstract ideological construct, invented by pro-choice organisations and advocates. There is no doubt that cases occur where real women experience genuine risks to their health and to their lives and actual practising doctors are placed in the appalling situation of trying to navigate the grey areas of the law and to protect themselves from prosecution while trying to do the best for their patients.

  Women in these circumstances travel abroad for an abortion rather than risk being refused one in Ireland. This is one of the reasons that Irish maternal mortality rates appear very low. Without the safety valve of UK abortion clinics, the rates would be higher.

  Many doctors, including the masters of the three Dublin maternity hospitals have called for a statutory framework and workable clinical guidelines so that they can provide best medical services in these circumstances. In response the Government is finally and slowly moving to restore Ireland's tarnished human rights reputation by giving effect to the constitutional right to abortion established 20 years ago in the Supreme Court judgment in the X case, in which it ruled on a right to abortion where there was a real and substantial threat to the life of the mother, including suicide, as decided by the Supreme Court of the Republic.

  It is a principle of human rights law that access to a right must be practical and effective. The current regime of case, constitutional and criminal law combines with inconsistent application of the law in clinical practice to render the narrow constitutional right in the words of the European Court of Human Rights illusionary and theoretical.

  The expert group sets out a series of proposals for practicable legislation and a regulatory framework for the implementation of the judgment of the European Court of Human Rights. It is critical that the options decided upon and enacted by the Government retain this practicable approach. Efforts to appease those who oppose abortion must not be allowed to result in legislation and guidelines of such procedural complexity as to be rendered completely ineffective in practice. The expert group makes crystal clear that only legislation will suffice to give effect to the A, B and C v. Ireland judgment. The report makes repeated reference to the considerable period of time this will entail. What will be in place for women while we wait for the Government to act?

  The Committee of Ministers of the Council of Europe expressed concern about the lack of interim measures. I raised this question with the Minister for Health last March and in response he outlined measures which he acknowledged as neither satisfactory nor appropriate. If a situation such as that of applicant C, a woman who was in remission from cancer when she became pregnant or when cases similar to the A, B and C v. Ireland arises, it will be the responsibility of the doctor of the seriously ill pregnant woman to determine whether the criteria of the law were met and if so a termination could lawfully occur. In the case of disagreements between a woman and her doctor or a refusal of a necessary life saving treatments, she could seek a second medical opinion or apply to the High Court for orders directing the necessary treatment be provided. She or presumably her family could subsequently take a case for medical negligence invoking the European Convention on Human Rights Act 2003.

  The action plan submitted to the Council of Ministers on 30 November includes similar statements, in other words no new measures have been put in place or are contemplated until such time as the Government introduces legislation to address the judgment in the A, B and C v. Ireland case. A woman who finds herself in the situation of applicant C will be in exactly the same position as has been the case for the past 20 years, with no effective means of asserting or giving effect to her democratic rights under Bunreacht na hÉireann.

  Those who voted for the eighth amendment to the Constitution did not intend that it would result in such a scenario or in the endangerment of women's health and lives through delays in or refusal of care. The current scaremongering by anti-abortion campaigners is unfortunate but entirely predictable. Implementing the X case they tell us, will inevitably open the floodgates to "abortion on demand", that dreadful phrase. Absurdly, it is claimed by anti-abortion groups that the inclusion of the threat of suicide as a risk to life that fulfils the X case, means that Ireland has the most liberal abortion regime in the world. This is incorrect. The campaign to exclude the threat of suicide as grounds for an abortion to save a woman's life rests on two false assumptions. The first is that women, doctors, psychologists and psychiatrists will collude in claims of suicidal intent and will do so in large numbers. The second is where services are made less restrictive, more women will be encouraged to have abortions. Both these assumptions are entirely false and insulting to Irish women and their families.

  On the first assertion, the export group has outlined an approach to the issue of suicidal intent in the context of pregnancy which would place such a situation within the health services that already exists and would not stigmatise mental ill-health or termination of pregnancy. Women have abortions because they have an unplanned or unwanted pregnancy and not because the service is easier to access. In any event two referenda have rejected attempts to exclude suicide from the rights in the X case judgment. As Mr. Justice Seán Ryan succinctly and definitively states in his preface to the expert group report: "The X case decision is the law of the State, as declared by its highest court. It is binding on all lower courts and generally".

  As legislators it is our responsibility to implement the law of this State. The opinions of those who disagree with the ruling of the Supreme Court are irrelevant to the debate we are engaged in at present. The expert group report is an excellent report and the Government must consider its recommendations carefully and act promptly as a matter of urgency to put in place the necessary measures of the report. It is regrettable that the expert group did not look beyond the implementation of the X case and address the broader context of abortion.

  Ireland's prohibitive regulation of abortion and the discriminatory nature of its application runs contrary to a number of UN human rights treaties to which Ireland is a signatory. This has been subject to criticism by international human rights bodies, including the UN Human Rights Committee, the UN Committee Against Torture, the UN Committee on the Elimination of Discrimination against Women and the Council of Europe Commissioner for Human Rights, which have criticised the following: the extremely restrictive legal regime whereby abortion is lawful only to save the life as distinct from the health of a pregnant woman and in no other circumstances; the failure of successive governments to give legislative effect, even in limited circumstances, so that abortion is available to women who need it and are in crisis; the continued existence on the Statute Book of harsh criminal sanctions dating back to the 19th century in relation to abortion; the need for women who seek abortion to travel to other jurisdictions to avail of these medical services and the consequent psychological, financial and health burdens this places on women, particularly women from lower socio-economic groups; and the discriminatory ways in which the regulation of abortion impacts on vulnerable women, minors, undocumented, and migrant women and women living in poverty is particularly unfortunate in a modern western democracy.

  At Ireland's universal periodic review in 2011, Norway, Denmark, United Kingdom, Slovenia, Spain and the Netherlands made recommendations on the restrictive abortion regime in Irish law and called for firm time-lines for the implementation of the judgment of the European Court of Human Rights in A, B and C v. Ireland. It is a shame that the expert group was not asked to focus its expertise on the broader context and looked only at the violation of the rights of applicant C in the A, B and C cases.

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