More work needed to make Irish abortion law fit-for-purpose

Women in the Republic of Ireland could still be denied abortions because doctors fear lengthy jail terms or refuse to terminate pregnancies because they object on principle – according to a new position paper.

A referendum in May saw the country vote overwhelmingly to overturn legislation which only allows abortion when a woman's life is at risk, but not in cases of rape, incest or fatal foetal abnormality.

However, experts from the University of Birmingham, Queen Mary University, London and Dublin City University say the Irish Government’s draft legislation to replace the 8th Amendment still needs improvement to prevent doctors from interpreting the new laws too conservatively.

They say that the Updated General Scheme of the Health (Regulation of Termination in Pregnancy) Bill 2018 does not make a strong enough break with it being a crime for a doctor to carry out an abortion – risking up to 14 years imprisonment.

The experts call for clear clinical guidelines identifying when and how a doctor who holds a conscientious objection to abortion should declare it. They recommend that objections to be registered with the Department of Health, so the Government can identify areas of unmet abortion need.

The authors also fear that the Catholic Bishops’ Code of Ethics could lead to some hospitals asserting their ‘institutional conscience’ as a reason for not providing abortion care on their premises.

Response co-author Máiréad Enright, from the University of Birmingham, said: “One goal of the Repeal movement was to ensure equitable access to abortion care in Ireland. The draft legislation represents significant progress towards that goal, but further work is necessary.

“However, it remains a serious offence for a doctor to carry out an abortion and much of the draft legislation’s language frames abortion in criminal terms, suggesting that termination remains an unusual and stigmatised procedure under Irish law.

“Residual criminalisation may see some doctors interpret the law more conservatively than the Oireachtas intends, for fear of prosecution. It also raises the prospect of ‘stings’ by anti-abortion activists, which may make service providers feel vulnerable to prosecution.”

The paper was co-written by Máiréad Enright and Professor Fiona de Londras, University of Birmingham; Dr. Ruth Fletcher, Queen Mary University; and Dr. Vicky Conway, Dublin City University.

Its authors make a number of further recommendations, including:

• Guidelines must clarify how medics define when it is advisable to terminate a pregnancy because of severe foetal complications;
• When defining ‘serious harm to health’, health must take account of a person’s wider circumstances and social well-being;
• Clear guidelines are needed around consent for minors and adults with limited decision-making capacity;
• Exclusion zones are needed to protect healthcare providers and pregnant people from protest or interference to services;
• Information and education campaigns must ensure that all people living in Ireland can access care under the new legislation; and
• The Bill’s language should be changed so that transgender people are not excluded.

• The University of Birmingham is ranked among the world's top 100 institutions. Its work brings people from across the world to Birmingham, including researchers, teachers and more than 6,500 international students from over 150 countries.
• For almost a century Birmingham Law School has led the way in legal education and research. A QS World Rankings Top 100 law school, it provides students with innovative, challenging and research-driven education.
• “POSITION PAPER on Updated General Scheme of the Health (Regulation of Termination in Pregnancy) Bill can be found here.
• The 8th Amendment was introduced following a referendum in 1983. It provides, in the form of Article 40.3.3, that: ‘The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.’