Abortion hearings show proposals need to be redrafted

Analysis: Central difficulty relates to suicide clause and absence of gestational limits as lawyers aired wide disagreements at the Oireachtas health committee

 Solicitor Caroline Simons arriving at the Oireachtas Health Committee hearings, at Leinster House, Dublin. Photograph: Eric Luke

Solicitor Caroline Simons arriving at the Oireachtas Health Committee hearings, at Leinster House, Dublin. Photograph: Eric Luke

Wed, May 22, 2013, 01:00

Following the divergences in opinion among obstetricians and psychiatrists over the first two days of the hearings, it was hardly surprising that the lawyers, too, aired wide disagreements at the Oireachtas health committee.

After all, the witness list on the third and last day of the committee’s hearings on abortion included warhorses of pro-life campaigns past and present, such as Prof William Binchy and Caroline Simons, as well as familiar speakers on the liberal side of the argument.

At times, it seemed like Groundhog Day, with Binchy re-arguing the ins and outs of the X case as though it was only yesterday.

Perhaps these differences are only reflective of wider disagreements within society on abortion, but the willingness of lawyers to process the same set of facts and come out with radically different interpretations was worrying.

Barrister Tony O’Connor averred that the High Court and the Supreme Court were not the places to fight out the issues involved and yet one senses it is precisely in these forums that difficult cases and challenges will be fought out.


Practical realities
It fell to retired Supreme Court judge Catherine McGuinness, seeking to occupy the middle ground in the argument, to locate the debate in some practical realities.

McGuinness tackled the frequent claim by Fine Gael backbenchers that the suicide clause in the legislation could open “the floodgates” to abortion.

These arguments were illogical, she said, because it was claimed that the vast majority of Irish people were anti-abortion and yet it was also argued that a flood of Irish women would seek abortion on false excuses.

“Surely there is an inherent contradiction here, and the ‘floodgates’ argument assumes that the reality is that there is a large proportion of the Irish public who actually want wider access to abortion, and will get it unless they are legally prevented by a minority who oppose this access?”

Archbishop of Dublin Diarmuid Martin’s concerns about the absence of a gestational time limit on terminations were understandable, she said, but this was an “unfortunate outworking” of the decision to insert the rights of the unborn into the Constitution in 1983.

She said the Government was right in arguing that a constitutional right could not be time-limited. It might, she suggested, be “worth a go” to insert a time limit in the Bill and see whether it proved constitutional.

There was no agreement among the lawyers on whether it was at all necessary to legislate for the X case, on legal developments since that case and on whether the removal of the suicide clause from the proposed legislation would be acceptable to the European Court of Human Rights.

Three days of hearings have shown that the Government’s proposals are in need of redrafting on several levels.

First, experts have pointed to the need for technical changes in respect of definitions in the Bill, conscientious objection, locations where a termination can be carried out and the role of various types of medical practitioners.

Other witnesses have pointed to areas where the Bill fails to provide the required detail, most notably in relation to consent and confidentiality issues for under 18-years-olds, and in relation to women with impaired mental capacity. The question of how many doctors should assess a suicidal woman seeking a termination did not feature as strongly as might have been expected, and the balance of evidence supported some softening of the proposed penalties for illegal abortions.

However, the central difficulties raised by many of the expert witnesses relate to the inclusion of the suicide clause in the legislation and the absence of gestational time limits.

Minister of State Alex White wrapped up proceedings last night by asserting there had been a “high level of consensus” on most provisions, but that seemed overly sanguine to anyone who sat through the 30 hours of evidence from 45 witnesses.

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