Abortion law in Ireland under serious threat from new legislation

Ireland is one of the few developed countries in the world where abortion remains illegal under sections 58 and 59 of the Offences against the Person Act 1861.   However this could change if proposed new legislation is passed through the Irish Parliament

Despite the significance, and potential effect, of the proposed legislative changes under the Irish ‘Heads of Protection of Life During Pregnancy Bill’, there has not been much news coverage of it in England, Scotland and Wales.  There has, however, been a great deal of coverage on the ‘Savita’ case.  And the two in fact are closely linked.

Savita Halappanavar was an Indian woman who tragically died in Galway, Ireland from infection last October after allegedly being denied an abortion when 17 weeks pregnant.

News of her death reverberated around the world, with accusations that denying her an abortion had directly caused her death. The story was stoked by criticism from the pro-abortion lobby of the Irish abortion law.  This CMF blog details more about the story and outcome of the inquest into her death.

The Inquest decided that Savita’s death was primarily down to medical malpractice in failing to treat an infection, not the denial of an abortion. However this has not stopped the pro-abortion lobby, and some Parliamentarians, from using the case as a lever to loosen the law on abortion in Ireland. The start is this new Bill which aims to ‘clarify’ the law for the medical profession in cases of threatened suicide or when the mother’s life is in danger.

This might appear to be a useful and relatively harmless measure to take, in the light of both Savita and the X case (which established the right of Irish women to an abortion if her life was at risk because of pregnancy, including the risk of suicide.) But is it?  There are two important questions to consider.

1. Is the Bill necessary?

2. What would the effect of the new Bill be?

1. Is it necessary?

The Offences against the Person Act 1861 is the basis for a ban on all abortion in Ireland as it criminalises abortion. However, Ireland’s law already allows abortion if there is a risk to the mother’s life – not health – as detailed here.

So if the doctors caring for Savita had felt that the continuance of the pregnancy posed a ‘real and substantive risk’ to her life (as opposed to her health), the current law would already have permitted them to induce the baby’s premature delivery to save her.

How often is abortion really necessary to save the life of the mother?

In the UK in the first 25 years of the operation of the Abortion Act 1967 only 0.013% of all abortions were performed ‘to save the life of the mother’. Irish women are not travelling to Britain to procure abortions in order to save their lives. In fact, not one abortion has been carried out in order to save an Irish woman’s life since 1992, the year of the X case.  Ireland is one of the safest countries in the world to have a baby, with a maternal mortality rate half that of the UK and USA.

A symposium on maternal healthcare in Dublin in 2012 issued a Dublin Declaration on Maternal Healthcare. This stated that abortion in no way assists in the health of the mother:

‘As experienced practitioners and researchers in obstetrics and gynaecology, we affirm that direct abortion is not medically necessary to save the life of a woman.’

Alan Guttmacher, former President of the pro-abortion US Planned Parenthood Federation has said:

‘Today it is possible for almost any patient to be brought through pregnancy alive, unless she suffers from a fatal illness such as cancer or leukemia, and if so, abortion would be unlikely to prolong, much less save life’[1]

Of even more concern to us is a proposal in the draft Bill to permit abortion when a mother is suicidal and requests a termination.  In such cases, is abortion the answer?

The Bill assumes there is evidence that abortion for threatened suicide is beneficial. Yet medical evidence and data does not indicate that abortion is a safe or reasonable treatment for threatened suicide. There is in fact no research evidence that abortion is an effective treatment for women who are suicidal, because this has not been investigated. Therefore it would be misleading for anyone to state emphatically that abortion does or does not help suicidal women until better research data is available.

One of Ireland’s most experienced obstetricians, Dr Sam Coulter Smith has publicly challenged the inclusion of suicidal intent as grounds for abortion:

‘Our psychiatric colleagues tell us that there is currently no available evidence to show that termination of pregnancy is a treatment for suicidal ideation or intent and, as obstetricians, we are required to provide and practise evidence-based treatment.’

113 of 127 psychiatrists in Ireland who took part in a survey agreed with a statement that they were ‘deeply concerned’ about plans to legislate for suicidality as grounds for an abortion being carried out: ‘We as psychiatrists are being called upon to participate in a process that is not evidence-based and we do not believe that this should be asked of the profession.’

One Psychiatrist, Prof Patricia Casey, at Mater Hospital and UCD, says:

‘In my work as a psychiatrist, I run the attempted suicide service in the Mater Hospital in which we see and assess more than 400 attempted suicides in women per year. I have never seen a pregnant woman who was suicidal for whom an abortion was the only answer.’

In fact the opposite is more likely to be the problem: that abortion leads to an increased risk of suicide.

The most recent major review of all recent reviews on the relationship between abortion and mental health, published only last month, found that abortion was associated with a moderate increase in the risk of suicidal behavior (AOR 1.69, 95% CI 1.12-2.54; p<0.01).

A large Finnish study found that in the year following a pregnancy event, women who choose abortion have a six times higher suicide rate than women who choose to deliver. In those who gave birth, it was half the national average.

2. What would the effect of the new Bill be?

This (rather misleadingly named) Bill, the ‘Protection of Life during Pregnancy Bill 2013’, would, if approved, make the direct and intentional killing of unborn children lawful in Ireland for the first time.

The Bill proposes:

• A new ground for abortion. As noted above, the Bill would make threatened suicide an explicit, statute-level ground for abortion. This would be beyond the permitted grounds of even Britain’s 1967 Abortion Act, let alone Irish law.
• To set no term limit on when an abortion can be performed. So, in theory, a medical condition at eight and a half months could allow for a partial-birth abortion.
• To repeal Sections 58 and 59 of the Offences Against the Person Act 1861, thus offering far less protection to the unborn child.
• To require a doctor with a conscientious objection to have a ‘…duty to ensure that another colleague takes over the care of the patient…’. The draft Bill also imposes a duty on all hospitals (institutions), which would include Catholic hospitals and any with an objection or abortion,
to provide legal abortions, without exception.

Some have argued, I believe correctly, that the effect will be to increase the demand for, and numbers of, abortions in Ireland, and will lead to a gradual weakening of the law in other areas over time (See this post on Archbishops Cranmer’s site about this).  Dr Coulter Smith told the Parliamentary committee that it was his own view and the view of many of his colleagues that: ‘the inclusion of suicidality within the legislation may, and I stress may, in the long-term lead to an increase in demand for termination in this country.’

Experience shows that allowing abortion on the grounds of mental health effectively opens the floodgates for abortion. This Bill would put psychiatrists in the unenviable position of deciding what degree of suicidality qualifies for legal protection and what does not. Medical judgments can be wrong and psychiatrists should not be asked to adjudicate and predict in these cases. Suicidal intent is an easily fabricated condition and it is very difficult for psychiatrists to prove that a woman who says she is not suicidal is not, nor is it their job to do so.

There are other concerns with the proposed Bill.

Repealing the 1861 Act would be a significant, and very concerning, step. The 1861 Act is the primary law criminalising abortion and has an important function in deterring all abortions. Recently, it helped to prevent the abortion provider Marie Stopes from keeping open a centre in Belfast. Any substitution would be less than that provided now under the Act.

Also, the conscientious objection clause as drafted is narrowly applied only to those who: ‘…carry out, or assist in carrying out…’ an abortion. And it suggests a duty to refer, which would put pressure on doctors with a conscientious objection to abortion. Moreover, all institutions – including Catholic hospitals – would have to participate in lawful abortions.

It is important that a doctor and other healthcare staff who object to abortion should be excused from all participation in the abortion process (apart from attendance in emergency), including direct referral. There has been helpful clarification on the extent of conscience in a recent, and significant, high profile Scottish Court ruling last month for midwives as extending ‘not only to the actual medical or surgical termination but to the whole process of treatment given for that purpose.’ (see a CMF blog on the case here).

The obvious conclusion to draw from my two questions above is that the new legislation is not needed and its effect will be to liberalise the law in Ireland.

The problem is, the difficult and tragic death of Savita Halappanavar has been seized upon by the media and by those who have long wanted the country’s abortion law to be liberalised. They have seen this incredibly rare case as providing a perfect opportunity. But there is an underlying agenda here that goes far beyond legalising abortion to save the mother’s life alone.

It’s no wonder that the proposed legislation has been welcomed by all the main pro-abortion groups in Ireland.

[CMF contributed, along with many others, to the pre-legislative scrutiny at Heads of Bill stage, which is a consultative process involving the Committee examining written submissions along with hearing from invited expert witnesses from the medical, psychiatry and legal fields. Our submission is here.]

Posted by Philippa Taylor

CMF Head of Public Policy