Academic lawyers publish draft IHR-compliant abortion legislation for Ireland #repealthe8th

A guest blog post by Dr Ruth Fletcher r.fletcher[at]qmul.ac.uk

“First, and perhaps most importantly, we were determined to design a law that would regulate abortion in Ireland by primary reference to the bodily integrity, welfare, agency, autonomy and self-determination of pregnant women”

On 29th June @feministsatlaw, an open access journal, published draft abortion legislation for Ireland and a paper explaining the context for the draft legislation.  The publication is intended to model what a legislative framework could look like in the wake of the Eighth Amendment and if abortion law is to become compliant with international human rights obligations.  Irish abortion law is notorious for being one of the most restrictive in the world.  The Eighth Amendment to the Irish Constitution (Article 40 3 3) protects the right to life of the ‘unborn’ and acts as a legal barrier to more liberal, woman-centred reform of Irish abortion law.  However, Irish opinion polls consistently show support for reform on internationally accepted human rights grounds i.e. in circumstances of a risk to health, pregnancy as a result of non-consensual sex, and where the foetus has a serious abnormality.  International and national human rights bodies and NGOs have consistently found Irish law to be in breach of human rights obligations.  Moreover there is growing recognition of the need to re-orient law and policy on reproductive rights more generally, so that the pregnant woman herself is seen as the central agent of reproductive life.  Yet, rather than try and build on this consensus, the Irish government continues to throw its hands in the air and insist it cannot do anything to change the status quo.

The legislation and the paper have been written by a group of academic lawyers who advised Labour Women’s Commission into Repeal of the Eighth Amendment. The group’s members are Máiréad Enright, Vicky Conway, Fiona de Londras, Mary Donnelly, Ruth Fletcher, Natalie McDonnell, Sheelagh McGuinness, Claire Murray, Sinéad Ring, and Sorcha uí Chonnactaigh. Most of them are also members of another critical feminist legal project, which seeks to imagine how law may be done differently, the feminist judgments project. In drafting the legislation they consulted widely with NGOs, specialists and colleagues and came together twice to workshop the model legislation.  This process was itself an important part of modeling what legal reform might be.

The Ms Y case (Fletcher 2014; Taylor 2015 ) and the Ms PP case (Enright 2015) illustrated all too brutally the limits of the Protection of Life During Pregnancy Act and of piecemeal reform under the Eighth amendment.  As demand for repeal of the Eighth amendment grows , there is a need for policy debate to rethink the terms of legislation in a post-Eighth environment.  Repeal in itself is not enough.  Law and legislation will need to play a positive role in generating and protecting a pathway of access to abortion for Irish women in their own country.   Legislation and perinatal policy also need to place the pregnant woman at the centre of decision-making on all pregnancy-related treatment.  In publishing this model legislation we hope to contribute to the kind of engaged public discussion, which can make this possible.

The publication does not represent Labour, or Labour Women, policy.  Although the Labour Party and Sinn Fein have recently adopted party policy to repeal the 8th Amendment, neither has yet adopted policy which is fully compliant with international human rights norms.  The publication does not represent the views of the authors, who are more ‘pro-choice’ in their own perspectives.  Rather this publication is intended to model how we might draft and debate a better abortion law for Ireland, which at least is legally compliant with international human rights norms.  Making law does not have to be ‘difficult’, fearful, or conservative in the sense of constantly looking backwards at what has gone before.  Making law can be a rewarding and engaging collaborative project where we re-imagine legal baselines and enable liveable, not just bare, lives.

The legislation is hereThe paper explaining and contextualizing that legislation is here .

Máiréad Enright explains the four guiding principles of the legislation on the Human Rights in Ireland blog here, which I reproduce below with thanks:

“First, and perhaps most importantly, we were determined to design a law that would regulate abortion in Ireland by primary reference to the bodily integrity, welfare, agency, autonomy and self-determination of pregnant women… The point is not that we think foetal life is unimportant. Rather, we wanted to show what woman-centred abortion legislation would look like in an Irish context.  To that end, we inserted key Guiding Principles in Head 3 that should be applied whenever the legislation is being interpreted or applied. These radically shift the approach to abortion from that the status quo.

Head 3 provides:

(1) Access to abortion is guaranteed in accordance with the provisions of this Act.

(2) In making any decision under the Act, or in providing medical care and services under this Act, the Heads shall be interpreted in the manner most favourable to achieving positive health outcomes for the pregnant woman, and to the protection of her rights, including the rights to:

  1. life;
  2. freedom from torture, cruel, inhuman and degrading treatment;
  3. bodily integrity and autonomy;
  4. self-determination, including the right to informed decision-making in relation to medical treatment;
  5. private and family life, including the right to privacy;
  6. health, including the right of access to appropriate health-care in a safe, prompt and timely fashion, and the right of access to healthcare information.

(3) Access to abortion services will not be impeded because of race, sex, religion, national, ethnic or social origin, disability, HIV status, marital or family status, immigration status, sexual orientation, age, birth or other social status.

(4) Sustaining embryonic and foetal life in pregnancy is an important social role, which should be voluntary and consensual

Second, the proposed law designates grounds for abortion which, to a significant degree, challenge the mainstream consensus on what a new Irish abortion law should contain. Politicians advocating for reform have tended to accept that a new law should permit abortion not only on grounds of risk to the life of the woman, but on the grounds that the pregnancy has come about through incest or rape, or that the foetus is incapable of surviving outside the womb. There is also some agreement that abortion should be available on a limited ‘health’ ground – certainly one which would reassure doctors that they could act to end the pregnancy of a seriously ill woman whose life is not at risk. Our proposed grounds go somewhat beyond such mainstream consensus. In particular:

  • we do not provide for a separate rape ground, in order to avoid any suggestion that a woman should be required to prove that she has been raped or to participate in any criminal process;
  • we provide for two health grounds: a simple [risk to health] one applicable in early pregnancy, and a requirement to prove severe or disabling damage to health in later pregnancy and
  • we do not confine the foetal anomaly ground to situations in which the foetus is certain to die within the womb if the pregnancy continues.

Third, the proposed law aims to enshrine an approach to medical practice that replaces pro-natalist paternalism with a welfare orientation, seeing the pregnant woman as the patient and abortion as a medical procedure. This is intended not only to nudge a reorientation of Irish maternal medical practice, but also to empower medics to follow the course of medical treatment that they believe is best for their primary patient (i.e. the pregnant woman) as determined by doctor and patient together.

Fourth, we were concerned that the legislation should ensure—to the extent possible—that abortion is actually available in practice, while also respecting the deeply held convictions of members of the medical profession and of the public in respect of the status of the ‘unborn’. This was of fundamental importance. It is quite clear that the legal availability of abortion can be frustrated by harassment, unregulated conscientious objection, and failure to provide services. In order to try to achieve this we focused on three areas: conscientious objection, provision of services and protection of locations in which services are provided, and review of negative decisions as to the availability of abortion in any particular case.”

Editors note: Since this article was written, Amnesty International Ireland has published the results of a poll conducted on attitudes to and knowledge of abortion law in Ireland. Key results include:

  • Asked whether the Irish Government should decriminalise abortion, 67% agreed and 25% disagreed.
  • 81% are in favour of significantly widening the grounds for legal abortion access in Ireland
  • Only a third of Irish people polled were aware that it is a criminal offence for a woman to access abortion unless her life is at risk
  • Less than one in 10 were aware that a woman who has an abortion could face a 14-year prison sentence

Commenting on the results Colm O’Gorman, Executive Director of Amnesty International Ireland, said: “This poll demonstrates that on the issue of abortion Ireland’s people are clearly way ahead of their government leaders. The conversation we urgently need in Ireland on abortion is a challenging one, but it must happen.  The Irish Government should put this issue to the people as a matter of priority. Decriminalising abortion is not only a human rights obligation – it is what people in Ireland want. And this means repealing the 8th Amendment.”.