News Analysis

Tuesday 23 September 2014

Ivana Bacik: You can't be a bit pregnant and you can't legislate for a bit of X case

Published 29/11/2012 | 17:00

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THE expert group has confirmed the obvious. Legislation with regulations represents the best way to implement the European Court of Human Rights ABC judgment. It is "constitutionally, legally and procedurally sound". Primary legislation would provide for the drafting of regulations to deal with detailed matters such as changing medical practices. The legislation would also repeal or amend the 1861 Act which criminalises abortion in this country.

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The report helpfully sets out a blueprint for Government as to the content of legislation to clarify the X case test. It addresses key issues, including the specific risk of suicide, by saying a psychiatrist could be required to assess this. As Minister for Justice Alan Shatter confirmed yesterday, it would be legally impossible to legislate without including suicide risk. The X case test was confirmed by the people in two referendums in 1992 and 2002. You can't legislate for a bit of that test – it would be like being 'a bit' pregnant.

Despite this, anti-abortion activists have argued against legislating for suicide risk. They say it will lead to 'abortion on demand'. This is legally wrong. The Supreme Court test for 'real and substantial risk to life' arising from risk of suicide is far stricter than the 'mental health' ground for abortion under the British 1967 Act, to which anti-abortion activists refer.

In making this argument, activists display a dismissive attitude to mental health, downplaying the horrific incidence of suicide in Ireland and suggesting suicide risk is not a 'real risk' to life. The argument is profoundly demeaning to women – implying we will be queuing up for abortions by pretending to be suicidal. It also demeans psychiatrists, by suggesting they could be so easily fooled.

In fact, as the report says: "The diagnosis of expressed suicide intent is a routine process for psychiatrists."

Another issue addressed by the report is that of time limits. Anti-abortion activists have engaged in unsavoury scaremongering, suggesting that legislating for the X case would mean carrying out abortions 'up to term'. The report clearly states that where a woman has a pregnancy that places her life at risk, and her foetus is viable, the pregnancy can be ended without ending the life of the foetus; early delivery of the baby may be possible with subsequent neonatal care.

These and other issues addressed in the report will be debated by the Oireachtas over the next three weeks, and the Government will then announce its decision before the Christmas recess. This clear timeline for action is very welcome.

Over many years, Labour has consistently called for legislation on the X case. The decision to legislate is the only one that Government can now make, in light of the expert group's findings. Public opinion is with us.

The tragic death of Savita Halappanavar has generated national outrage, with thousands of people calling for legislative action on protests around the country. Twenty years after the X case, the Government must legislate to clarify the 'grey area' of abortion law that continues to risk the lives of women. It is just a pity it has taken so long.

It is also a pity that fatal foetal abnormality is not covered in the report. Earlier this year, we heard the testimonies of four women who had to travel to England for terminations after being told their babies would not survive. It is inhumane to require women to travel abroad in such traumatic circumstances. It should be possible within the terms of the Constitution to legislate for abortion where there is no viable foetal life.

Ultimately, it is not possible under the Constitution to legislate properly for the real health needs of Irish women. Women are voting with their feet. Over 4,000 women travelled from here to England last year for abortions, most on grounds other than risk to life.

The flawed wording of the 1983 amendment, which equates the right to life of the 'unborn' with that of the pregnant woman, has created the legal quagmire we are in; and has prevented the introduction of legislation to meet the needs of these women.

That amendment should be deleted ultimately. For now, we must act swiftly and pass the X case legislation necessary to fulfil our international responsibilities, provide legal clarity and prevent further uncertainty for doctors and women. No more inaction. We know that it costs lives.

Irish Independent

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