The four options outlined in the report:
After much waiting -and coincidently just as a major maternal health tragedy broke into an abortion storm- the government’s Expert Group on the ABC case submitted their report to the government. The report was part of a government action plan following the ruling of the European Court of Human Rights (ECHR) on the A, B, and C case pertaining to contested rights to abortion. The Expert Group made a number of recommendations, as was their remit, and these recommendations; as well as possible alternatives which were not listed; and the matters considered by the report as well as evidence which was not considered; are the subject of this review.
The report delved the legal history concerning abortion in Ireland with a large focus on the 1983 amendment as it was interpreted by the Supreme Court in the X case (1992). It is the X-case interpretation which precipitated the ABC case and thereby the ruling of the ECHR. The report made recommendations as to how the Irish state might implement the ECHR’s rulings.
The report identified that the X-case and the ECHR rulings identified that the 1983 amendment did not imply a conflict of rights between the mother and an unborn child, but that there was sometimes “an inquiry as to whether the woman's life is threatened by a real and substantial risk that can only be averted by the termination of pregnancy.” The 1983 constitutional amendment does not imply a ‘right’ to an abortion but it allows for the instance where a pregnancy might be terminated to save the life of the mother.
For pro-abortion voices the difference between “termination” and “abortion” might be inconsequential semantics, but for many women who have suffered loss of their children through pregnancy complications the definition is an important and sensitive one. The Institute of Obstetricians and Gynaecologists’ Clinical Practice Guide on the management of early pregnancy miscarriage warns: "Women are sensitive about references to pregnancy loss. As their loss is not out of choice, use of words like 'abortion' can be sometimes offensive at a vulnerable time. Hence, discussion or documentation of management of early pregnancy loss should be worded appropriately." The Medical Council also are at pains to point out that life-saving medical procedures which may result in the death of the child are not abortions. Abortion is defined by the intent to kill the child, never by an intent to treat illness in the expectant woman.
The Expert Group report acknowledges the Medical Council’s ethical guidelines, which govern Irish medical practice, on this. It quotes the Medical Council’s 2009 Guidelines paragraph 21.4
“In current obstetrical practice, rare complications can arise where therapeutic intervention (including termination of a pregnancy) is required at a stage when, due to extreme immaturity of the baby, there may be little or no hope of the baby surviving. In these exceptional circumstances, it may be necessary to intervene to terminate the pregnancy to protect the life of the mother, while making every effort to preserve the life of the baby.’
However the report is framed by a general principle that there is a right to abortion enshrined in the constitution which was confirmed by the X-case ruling. That being the case, it argues, there must be a regulated regime for providing this right. The right of the people to restore full constitutional protection by means of a referendum is ignored by the Expert Group.
The ECHR ruled that the X-case decision meant that abortion was permissible in some circumstances and that this required a framework to assess if this right applied in individual cases. The report concluded that this also means that an abortion service must also be made available to those who qualify under this test; and that a review process must be in place in the case of disputes where a woman is deemed not entitled to a lawful abortion.
From this position it outlines four options for implementation. Namely through:
It is worth mentioning at this point that these options do not cover all the possible conclusions that could be made. For instance the X-case judgement was never questioned by this expert group. The X-case was, and is still, viewed as a flawed judgement. Since 1992 international statistical evidence indicates that the premise of the argument accepted by the judges – that the girl was suicidal and that that suicidal ideation could only be treated by aborting her child - was wrong. Increasingly, the evidence presented internationally indicates that suicidal ideation in pregnant women is not decreased by abortion. The Royal College of Psychiatrists state that "there are no absolute psychiatric indications for termination of pregnancy" - that is to say, there are no psychiatric conditions for which abortion is the only answer." Since then further studies have established that having an abortion increases mental illness, a risk factor for suicidal ideation, and increases the risk of suicide.
Of the four options put forward by the Expert Group, the first option would seem the least harmful - namely the implementation of guidelines. The Medical Council’s guidelines already reflect very strongly the constitutional requirement to respect the life of the mother and the child equally. Doctors have affirmed again and again the position that there are no circumstances where an abortion is needed to save a woman’s life.
Irish doctors have also expressed fears that new regulations /legislation could force them to become killers of children. Some of the legalistic solutions that the report has made take the treatment decision away from the medical realm and make it a legal enquiry, a development doctors feel has no place in medicine.
The remaining options talk of putting “Lawful termination of pregnancy in Ireland on statutory and therefore more secure footing”
Option 2 requires legislation from the Oireachtas, which would give the Minister for Health the authority to issue regulations on when and where abortions could be carried out in Ireland. Once the primary legislation has been enacted the matter will be entirely in the minister’s hands.
Option 3 allows for legislation which would specify when and how a legal abortion would be allowed. It would require amending the 1861 act or scrapping it and enacting new legislation with the x-case exception built in.
Option 4 allows for primary legislation which would allow for regulations to be drafted to control how and when a “legal abortion” could occur. This option would also require amending legislation to the 1861 act, or its repeal and replacement with a new act stating the law on abortion.
From what the doctors have said it is clear that there are no situations where abortion may be legal as it is never necessary to save a mother’s life. There is however the X-case situation of an expression of suicidal ideation, and this could realistically lead to abortion on request. The British legal model, where 90% of abortions are conducted for mental health reasons, illustrates how readily this could occur. The diagnosis of suicidal risk is notoriously difficult to make and regulating effectively for it would most likely prove impossible.
On top of this there is no evidence that suicidal ideation can be treated by terminating pregnancy. It is an area fraught by equivocation, and the danger –which is a very likely danger- is that the regulations will be equivocatory and prove impossible to discriminate between false; and what might be genuine claims. International experience has proven that restrictive abortion regulations with exceptions on health grounds have been widely flaunted. The reality in these cases is that most abortions are, in actual fact, chosen for social and economic reasons.
The report concludes that the state has failed “to implement the existing constitutional right to lawful abortion in Ireland” However, this seems a flawed understanding of the medical evidence which shows that abortion is never necessary to save the mother’s life and a denial of the intention of the people who clearly approved Article 40.3.3 in order to prevent abortion from being legalised.