No easy options among report's proposals

 

BACKGROUND:The unenviable task of dissecting the legal position on abortion in this State is the subject of a report that is 18,000 words long and seeks to bring clarity to this often confusing situation.

The principles underlying the various alternatives are also outlined in the report of the expert group on abortion to be discussed at Cabinet today, a copy of which has been seen by The Irish Times.

The first principle set out is that “The entitlement to have the right to lawful termination of pregnancy ascertained should be established.”

The document adds: “When there is a difference of opinion between the woman and her doctor or between different doctors consulted, there should be a formal review process that could be invoked by or on behalf of the woman so that it could be established as a matter of law whether the particular case presented a sufficient risk to the woman’s life such that a lawful termination of pregnancy may be performed.”

The report sets out a number of options which “reflect the steps necessary to implement the European Court of Human Rights judgment in light of the X case and the requirements of the Constitution”.

Four options are outlined:

1) Non-Statutory guidelines;

2) Statutory Regulations on “the provision of lawful termination of pregnancy by way of primary legislation to empower the Minister for Health to regulate the area by statutory instrument”;

3) Legislation Alone: “Regulate the provision of lawful termination of pregnancy by way of primary legislation”;

4) Legislation plus Regulations: “Regulate the provision of lawful termination of pregnancy by way of primary legislation, with certain matters left to the Minister for Health to regulate by way of secondary legislation.”

Option 1 “would meet the need for speedy action” but, on the other hand, “guidelines are, by their nature, non-binding and do not have force of law”. The report comments: “The fact that the measures would not have binding force is likely to mean that this option would not satisfy the Committee of Ministers of the Council of Europe.”

Under Option 2, the Minister for Health would issue regulations, based on enabling legislation passed by the Oireachtas.

Regulations

The report lists several advantages of this option, such as the fact that the regulations could be amended relatively easily. It lists only one disadvantage, namely that passing legislation takes a considerable amount of time.

In relation to Option 3, Legislation Alone, the report says: “In this option, all the details on the assessment of entitlement to a lawful termination of pregnancy would be enacted in legislation, giving the Oireachtas the power to scrutinise all its provisions and leaving no significant matters to be dealt with by regulations.”

Again, the report lists a number of advantages with this approach, but the expert group cautions that it “might be too rigid an approach” and that “even minor changes that might arise following implementation or in light of scientific advances would require full scrutiny and further passage through the Houses of the Oireachtas”.

On Option 4, Legislation plus Regulations, the report states: “The advantages of this option are that it fulfils the requirements of the judgment, it provides for appropriate checks and balances between the powers of the legislature and the executive, and would be amenable to changes that might arise out of clinical practice and scientific advances.”

In its conclusion, the report points out that: “Under the Expert Group’s terms of reference, it was not its function to specify how the judgment should be implemented but rather to provide options.”

However, the group adds that, “inevitably, some options commend themselves more than others” and the import of this report is that either regulations with a statutory basis or legislation plus regulations are the way forward.

In the report’s preface, the group’s chairman, Mr Justice Seán Ryan, writes that abortion is “a difficult painful issue in this country and elsewhere” because “intense ethical, religious, social, political and intimate personal issues coincide”.