Minister for Health Simon Harris argued that the public did not "vote for abortion in all circumstances" earlier this year as he resisted calls for all regulations surrounding the termination of pregnancy not to carry a criminal sanction if breached.
The Minister was speaking as the Oireachtas Health Committee debated some of the 180 proposed amendments to the Health (Regulation of Termination of Pregnancy) Bill 2018 put forward by pro-choice and anti-abortion TDs.
The thrust of the Bill remains the same and that is to allow for access to abortion within the first 12 weeks of pregnancy.
Under the legislation, termination of pregnancy in cases where a baby has a diagnosed fatal foetal abnormality and will die either “before or within 28 days of birth” will be permitted.
Fianna Fáil TD Stephen Donnelly said it was "inevitable" that this part of the legislation would put doctors in an "impossible position" due to the difficulty involved in making such a determination.
Mr Donnelly suggested the period of 28 days ought to be instead included in the clinical guidelines.
“Where I fully agree with you is that there needs to be absolute clarity,” he told Mr Harris. “The place for that is surely in the guidelines. So, the clarity is there, but we don’t have this dangerous, impossible call for the medical practitioner to make. I don’t think you’re trying to act in an incorrect way but I think you’ve got this one wrong.”
The legislation says it will be an offence for a person, by any means whatsoever, to intentionally end the life of a foetus otherwise than in accordance with the provisions of the Act, with a penalty of up to 14 years in prison.
Independents4Change TD Clare Daly urged the Minister to remove “all vestiges of a criminal sanction in this legislation”. Solidarity-People Before Profit TD Ruth Coppinger spoke of “the chilling effect” on doctors of such criminalising legislation.
Medical malpractice
Mr Donnelly noted that there was no such 14-year sentence for medical malpractice, for instance. However, he said he also believed that “a material number voting Yes [in last May’s referendum] were aware of this section existing under which abortion for disability was not allowable”.
Mr Harris said “the legislation was largely put before the people and there are risks to operating outside the legal framework”.
He pointed out that “all sanctions for women and girls have been removed” but that “we can’t deviate substantially from what we promised the people”.
He said the foetus has protection in law and that if the criminalising elements were removed, it would have no protection on the statute books.
“The people didn’t vote for abortion in all circumstances,” he said.
Mr Harris said the issue of criminal sanction would not arise, as the legislation includes the stipulation that the medical practitioner has “acted in good faith”.
He said that obstetricians and gynaecologists had not flagged this part of the legislation as problematic.
Mr Harris agreed to accept an amendment to the Bill at report stage which establishes that a review of the legislation may take place within three rather than five years after enactment.
He said “legislation can be reviewed at any time” and that the word “shall” in the Bill meant that a review “is not discretionary. It is a legal requirement.”
He said similar legislation in the UK “is very old and has not been reviewed in many years”, but what would take place here would not just be a review of legislation but of the operations of the Act.
Ms Coppinger said the purpose of one of the amendments was about “broadening out the definition of medical practitioner” to include “other people in the medical system”.
"You don't need a doctor to have an abortion. Abortion is a very simple procedure. The majority of them take place in the first trimester. We are introducing a barrier and bureaucracy that needn't be there," she said.
Lack of consultation
Peadar Tóibín, who was recently suspended from Sinn Féin for voting against the legislation, said “there has been no consultation with midwives about the provision of abortion in Ireland”. He said there had also been a lack of consultation with doctors, noting a letter from 650 doctors who said they wanted this to take place.
Mr Harris said he was not in a position to accept the amendment.
A large number of amendments were proposed to include references in the Bill to “pregnant persons” to mean “a person of any sex who is pregnant”. This is intended to ensure the Bill includes transgender people in its provisions.
Sinn Féin TD Louise O’Reilly called for the legislation to be future-proofed where LGBTI people were concerned and sought to have the wording amended to read “any person that can be pregnant”, instead of just “woman” and that “the language be as inclusive as possible”.
Mr Harris responded that he wanted the legislation “to be inclusive, trans-inclusive” but warned of “unintended consequences” of this proposed amendment. It was his legal advice that to change the wording would bring “considerable risk”.
The committee will continue its debate on the Bill on Wednesday.
