What would replace the Eighth Amendment: The text, the law, the politics

The draft heads of the proposed Bill to liberalise Ireland’s abortion law analysed

Abortion legislation: head 7 would legalise most terminations, making it most contentious for anti-repeal campaigners

Abortion legislation: head 7 would legalise most terminations, making it most contentious for anti-repeal campaigners

 

If the proposal to change the Constitution in Friday’s referendum is defeated, no further legislative change will be possible.

The existing situation with regard to abortion pills, women travelling to Britain and the plight of parents who receive a diagnosis of fatal foetal abnormality will not change.

If the proposal is approved the Government will put legislation before the Oireachtas that would legalise abortion in specific instances if passed. It has published draft heads of a Bill to show voters what would replace the current ban on abortion.

Under the proposed Bill terminations of pregnancy would be available in four distinct types of cases, with different procedures and requirements.

Irish Times Political Editor Pat Leahy and Trinity College Dublin law professor David Kenny explain:

HEAD 7: EARLY PREGNANCY (12 WEEKS)

7. (1) It shall be lawful to carry out a termination of pregnancy in accordance with this Head where a medical practitioner certifies that, in his or her reasonable opinion formed in good faith, the pregnancy concerned has not exceeded 12 weeks of pregnancy.

(2) It shall be necessary for 72 hours to elapse between the time of the certification referred to in subhead (1) and the termination of pregnancy being carried out.

(3) The medical practitioner referred to in subhead (1) shall make such arrangements as he or she shall deem to be necessary for the carrying out of the termination of pregnancy as soon as may be after the period referred to in subhead (2) has elapsed but before the pregnancy has exceeded 12 weeks of pregnancy.

(4) For the purposes of this Head, “12 weeks of pregnancy” shall be construed in accordance with the medical principle that pregnancy is dated from the first day of a woman’s last menstrual period.

The law
The first case where termination would be allowed is in early pregnancy. This would allow for termination if a doctor certifies in good faith that the pregnancy is of less than 12 weeks’ duration at the time of the termination. In such a case a waiting period of 72 hours must elapse between certification by the doctor and the procedure being carried out. The doctor certifying the termination can make whatever arrangements are necessary to perform the procedure.

It is important to note that the proposal does not provide for any specific ground for abortion in cases such as rape or incest. Instead, following the advice of the Citizens’ Assembly and of the Oireachtas Joint Committee on the Eighth Amendment of the Constitution, the Government has proposed allowing a 12-week period in which termination can take place for these and other reasons. After this 12-week period abortion is available only in limited circumstances that must be certified by doctors before any termination can take place. David Kenny

The politics
This is the head that will legalise most abortions, and consequently is the greatest point of contention for most anti-repeal campaigners. They say it is “abortion on demand without restriction”. This is not entirely true. A waiting period of three days is required, and the doctor must be satisfied that the pregnancy is in its first 12 weeks. But it will legalise abortions well beyond the “hard cases”.

The Government’s rationale is that only general access to abortion in the early stages of pregnancy caters for rape victims. The Government also says that allowing for abortion in the early stages of pregnancy without requiring specific reasons recognises the reality of the thousands of Irish women who either take illegal abortion pills or travel to England to have later, and in some cases more dangerous, abortions.

It is true that Ireland is very unusual among similar countries in not allowing abortion in early pregnancy, and that Irish abortions already take place. But it is also true that this is a huge change in the law and in medical practice. However, if there is a Yes vote, the will of the people on this point will be clear.

A further point of contention arises in the case of disability; the argument about Down syndrome has surfaced intermittently in the campaign, with No campaigners warning that other countries have seen drastic reductions in the numbers of babies born with Down syndrome, as many of them are aborted.

The Government insists that disability will not be a ground for abortion, and pro-repeal doctors point out, correctly, that diagnosis is extremely difficult, if not impossible, before 12 weeks. Indications of a risk of disability may be possible before 12 weeks, however, during the period when no reason is required for terminations.

This disagreement will not be settled by the vote. If the referendum passes it will become a battleground during the legislative process. Pat Leahy

HEAD 4: RISK TO LIFE OR HEALTH

4. (1) It shall be lawful to carry out a termination of pregnancy in accordance with this Head where 2 medical practitioners certify that, in their reasonable opinion formed in good faith –
(a) there is a risk to the life of, or of serious harm to the health of, the pregnant woman,
(b) the foetus has not reached viability, and
(c) it is appropriate to carry out the termination of pregnancy in order to avert that risk.

(2) Of the 2 medical practitioners referred to in subhead (1) –
(a) one shall be an obstetrician, and
(b) the other shall be an appropriate medical practitioner.

The law
The second case where termination would be allowed is where there’s a threat to the life or health of the pregnant woman. Here, two doctors – one an obstetrician – must certify that there is a risk to the life of, or a risk of serious harm to the health of, the mother, and that termination is appropriate in order to avert that risk. Serious harm to health includes mental health. The procedure must be carried out by an obstetrician. Termination on this ground is available until the foetus is viable – that is, where it could survive outside the uterus. The proposal says that the viability of a foetus should be determined by the reasonable opinion of the doctors involved. David Kenny

The politics
After the 12-week period has elapsed, abortion will be legal only in specific circumstances, including those defined under this head: where there is a serious threat to the mental or physical health of the woman. Two doctors with relevant specialities must agree before the abortion can take place. Abortions under this head will not be permitted after the point at which the foetus can viably survive outside the mother’s womb – usually 24 weeks.

No-side campaigners have warned of “vague” mental-health grounds, pointing out that in Britain most abortions are permitted on mental-health grounds. They also warn that foetal disability or the mother’s material circumstances could be judged to threaten her mental health. Yes campaigners say that law, culture and existing medical practice will prevent this.

If the referendum is passed, this will become a key legislative battleground: how to craft the law to permit abortion in serious cases but not allow abortion on request up to 24 weeks. Pat Leahy

HEAD 5: RISK TO LIFE OR HEALTH IN EMERGENCY

5. It shall be lawful to carry out a termination of pregnancy in accordance with this Head, where a medical practitioner is of the reasonable opinion formed in good faith that –
(a) there is an immediate risk to the life of, or of serious harm to the health of, the pregnant woman, and
(b) it is immediately necessary to carry out the termination of pregnancy in order to avert that risk.

The law
The third case where termination would be allowed is where there is a threat to the life or health of the pregnant woman in an emergency. This procedure envisages an immediate risk to life or health, such that urgent action would be necessary. In such an emergency a single doctor can determine in good faith that there is an immediate risk to life or of serious harm to health, and that a termination is immediately necessary to avoid that risk. Again, serious harm to health includes mental health. Where such a risk is established, that doctor may then perform the procedure. Terminations in these extreme cases would be available at any stage during the pregnancy.

This provision is very similar to the current provision of the Protection of Life During Pregnancy Act 2013 to allow termination in cases of a threat to life in an emergency. The only relevant difference is that the proposed Bill provides for termination in cases of immediate risk of serious harm to physical or mental health in the same manner as a risk to life in emergency circumstances.

Contrary to some suggestions, the proposal does not allow termination where early delivery would be appropriate, any more than the 2013 Act does. In requiring that termination be necessary to avoid the immediate risk, it requires that the doctor in question believe that early delivery would not be sufficient, and that termination is the only way to resolve the emergency. This is the current practice under the very similar provision in the 2013 Act. David Kenny

The politics
This eases the constraints of the previous head, because it is intended to take account of emergency situations, where a termination is required to address immediate threats to the life of the woman. Only one doctor is required to certify the need for an abortion, and – controversially for No campaigners – no gestational limits are specified in the proposed legislation, raising the prospect, they say, or abortion up to birth. Anti-abortion TDs are likely to seek term limits if the legislation comes before the Oireachtas. However, the section is clearly intended to cater for exceptional situations. Pat Leahy

HEAD 6: CONDITION LIKELY TO LEAD TO DEATH OF FOETUS

6. (1) It shall be lawful to carry out a termination of pregnancy in accordance with this Head where 2 medical practitioners certify that, in their reasonable opinion, there is present a condition affecting the foetus that is likely to lead to the death of the foetus either before birth or shortly after birth.

(2) Of the 2 medical practitioners referred to in subhead (1) –
(a) one shall be an obstetrician, and
(b) the other shall be an appropriate medical practitioner.

The law
Finally, termination is available in cases where the foetus suffers from a condition that is likely to lead to its death, either before or shortly after birth. These cases involve what are commonly called fatal foetal abnormalities. Two doctors – one an obstetrician – must certify that it is their reasonable opinion that the foetus has such a condition. An obstetrician must carry out the procedure. Terminations for this reason would be available at any stage during the pregnancy. David Kenny

The politics
The plight of parents whose foetus has been diagnosed with a fatal abnormality – or a life-limiting condition, as some on the anti-repeal side prefer to call it – is one of the main reasons why the abortion referendum has come to pass, and politicians such as Minister for Health Simon Harris say that listening to the experiences of parents faced with the situation was one of the things that changed their minds about abortion.

Existing law prevents a termination even when there is a high likelihood that the baby will die before, during or soon after birth.

Despite its importance in the debate this section is likely to be relatively uncontroversial if the legislation comes to the floor of the Dáil. In the past week some anti-abortion campaigners have suggested that they could assent to a law that allowed for abortions in these circumstances – a testament to the emotional power of these stories in the debate. Opinion polls suggest that a huge majority of people are in favour of legalising abortion is such circumstances. Pat Leahy

Abortion: The Facts

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