Abortion legislation: the really contentious bits

The referendum on May 25th will ask people their views on whether the Eighth Amendment should remain in the Constitution, or whether it should be removed to allow for the “regulation of the termination of pregnancy”.

At present, Article 40.3.3. – introduced by the Eighth Amendment in 1983 – gives the unborn and the mother an equal right to life.

The Referendum Commission has stressed this is the decision people will be asked to make. However, much of the debate during the campaign has focused on the legislation that may follow a repeal vote.

If people vote Yes on May 25th, the law will remain the Protection of Life during Pregnancy Act, which allows for terminations when a mother’s life is at risk, including from suicide. That will remain the law until any new legislation is passed.

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The Government has proposed legislation allowing for access to terminations in certain circumstances in the event of a vote to repeal the Eighth Amendment. It has produced the “general scheme” of a Bill. This is an outline of a Bill , which would become the "Heads of a Bill", which would be debated by the Dáil, Seanad and committee. If passed, the legislation would be accompanied by Medical Council guidelines.

The general scheme contains 22 headings – some of which are the subject of public debate between Yes and No sides over what they will mean in practice. Below, we look at the contentious sections and the claims and counterclaims about each one.

Head 4: Risk to life or health

DIVIDING LINES
This section refers to the circumstances in which abortion will be lawful between the 12th and 24th week of pregnancy.

Beyond the first trimester of pregnancy, the legislation states that two medical practitioners must certify that there is a risk to the life, or of serious harm to the health, of the pregnant woman for a termination to be permitted. There is no distinction made between mental and physical health.

One of the two medical practitioners must be an obstetrician and the other a “relevant” medical practitioner.

Terminations would not be permitted beyond the point of viability, which is accepted by medical practitioners and by campaigners on both sides of the debate as the 24th week of pregnancy.

Those opposed to repealing the Eighth Amendment contest the grounds on which terminations would be accessible, in particular that of mental health. Most opponents of repeal are supportive of the law which permits abortion when a woman’s life is at risk, including by way of suicide.

Anti-abortion organisations claim the ground of mental health may be used by women to access terminations when Down syndrome is diagnosed by claiming this constitutes a risk to a woman’s mental health.

Those who favour repeal point to similar claims being made when the Protection of Life during Pregnancy Act was being debated and the grounds of suicide. Seventy-seven terminations have taken place in the first three years of its enactment; seven of those on the grounds of suicide.

Terminations on the grounds of a non-fatal foetal abnormality, such as Down syndrome, are outside the law and are therefore prohibited.

There have also been concerns regarding the lack of clarity on what constitutes “serious harm to the health of the mother”. Those opposed to repeal state this may lead to terminations being accessible on wide grounds.

Those in favour of repeal insist complex medical decisions cannot be defined in legislation and that each case is different. They argue that defining “serious harm” to a woman’s health would tie the hands of doctors.

Head 5: Risk to life or health in emergency

DIVIDING LINES
This refers to the termination of pregnancy when there is a risk to the life or serious harm to the health of a mother in an emergency situation.

The section states it will be lawful to carry out a termination when one medical practitioner is of the reasonable opinion that there is an immediate risk to the life of the pregnant woman, or of serious harm to her health. There are no gestational limits applied in these circumstances.

Those opposed to the repeal of the Eighth Amendment allege this will allow for abortions up to full term.

Those in favour say obstetricians will not terminate pregnancies beyond the point of viability, which is 24 weeks of pregnancy.

No gestational limits apply in the existing Protection of Life during Pregnancy Act, and a majority on both sides support this law.

Head 6: Condition likely to lead to death of foetus

DIVIDING LINES
This section refers to terminations being made available in the cases of fatal foetal abnormalities. Under the proposals, it would be lawful to terminate a pregnancy when two medical practitioners determine the foetus has a condition that is likely to lead to the death of a foetus either before birth or shortly after.

This means two doctors would have to conclude, in good faith, that the foetus has a condition incompatible with life, or would not survive outside the womb.

Those opposed to repealing the Eighth Amendment argue this could lead to abortions when a foetus is diagnosed with a non-fatal abnormality such as Down syndrome.

However, terminations in these cases are outside the law and therefore prohibited, the repeal side points out.

Head 7: Early pregnancy (12 weeks)

DIVIDING LINES
This is the probably most contested section in the legislation. It relates to access to terminations within the first 12 weeks of pregnancy.

It states that terminations of pregnancy will be lawful when a medical practitioner certifies that the pregnancy has not exceeded 12 weeks of pregnancy. Seventy-two hours must elapse between this certification by the medical practitioner and the termination being carried out.

This has led to claims that there would be unrestricted access to abortions up to the 12th week.

The Bill states a woman would have to seek a termination from a medical practitioner, who would have to satisfy themselves that the pregnancy is within the first trimester. A waiting period of three days would then be enforced. The termination would be permitted after that.

There have been allegations from those opposed to repealing the Eighth Amendment that this would allow for the termination of pregnancies when a foetus with non-fatal abnormalities – such as Down syndrome – is identified.

However, the Yes/Repeal side argues, it is extremely difficult for such a condition to be identified within the first 12 weeks of pregnancy.

To explain, a woman would have to seek a test that is expensive and not widely available. It is available only at the ninth or 10th week of pregnancy, and its results take two weeks to process as they are sent to the UK or the US for examination. This is not a diagnostic test. A further test would be required, and it takes a further three days for results to return.

So while it may be technically possible to identify a condition such as Down syndrome within the first 12 weeks, it is very rare.

A woman would be able to access a termination within the first 12 weeks of her pregnancy without having to indicate a specific reason for doing so.

The No side suggests the screening tests could improve over time to allow for a confirmatory diagnostic test within the 12 weeks.

The Yes side says this is a hypothetical situation but, if this occurs, the Government could alter legislation to take account of possible technical advances.