Abortion legislation: the really contentious bits

The most contested sections of the proposed abortion legislation and what campaigners say about them

The Government has proposed legislation allowing for access to terminations in certain circumstances in the event of a vote to repeal the Eighth Amendment

The Government has proposed legislation allowing for access to terminations in certain circumstances in the event of a vote to repeal the Eighth Amendment

 

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.

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

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.

(3) The termination of pregnancy to which the certification relates shall be carried out –

(a) by the obstetrician referred to in subhead (2) (a), or (b) by another obstetrician, where the medical practitioners referred to in subhead (1) have made such arrangements as may be necessary for the carrying out of the termination of pregnancy by that obstetrician.

(4) Nothing in this Head shall affect the operation of Head 7.

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

5. (1) Notwithstanding the generality of Head 4, or any determination made or pending pursuant to Head 11 of an application under Head 8(2), 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.

(2) A termination of pregnancy referred to in subhead (1) shall be carried out by the medical practitioner referred to in that subhead.

(3) Where a medical practitioner –

(a) subject to paragraph (b), proposes to carry out a termination of pregnancy referred to in subhead (1), he or she shall, before carrying out termination of pregnancy concerned, certify the matters referred to in subhead (1)(a) and (b), or

(b) proposes to carry out the termination of pregnancy without first making such certification because it is not practicable to do so, he or she shall make such certification as soon as may be but, in any event, not later than 72 hours after the carrying out of the termination of pregnancy concerned.

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

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.

(3) The termination of pregnancy to which the certification relates shall be carried out–

(a) by the obstetrician referred to in subhead (2)(a), or

(b) by another obstetrician, where the medical practitioners referred to in subhead (1) have made such arrangements as may be necessary for the carrying out of the termination of pregnancy by that obstetrician.

(4) Nothing in this Head shall affect the operation of Head 7.

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)

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.

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. 

Abortion: The Facts

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