Monday 24 October 2016

Repeal of Eighth Amendment will not create a legal vacuum

Dr Vicky Conway and Mairead Enright

Published 29/09/2015 | 02:30

It is the duty of the Oireachtas to propose and enact legislation. The Taoiseach cannot renege on that duty.
It is the duty of the Oireachtas to propose and enact legislation. The Taoiseach cannot renege on that duty.

Taoiseach Enda Kenny recently stated that he would not support a referendum to repeal the Eighth Amendment to the Constitution without knowing what would replace it. We take issue with that position.

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If the Eighth Amendment were repealed, the Protection of Life During Pregnancy Act 2013 would continue to regulate abortion provision in Ireland until it was repealed, or successfully challenged in court. There would be no legislative vacuum. Instead, legislators would have greater confidence that they could enact workable abortion legislation without falling foul of the Constitution. It is the duty of the Oireachtas to propose and enact legislation. The Taoiseach cannot renege on that duty.

The Taoiseach says that he is "quite prepared to listen to people who have contributions to make" as to what post-repeal abortion legislation and regulation might look like. The requirements of constitutional law and international human rights law in this regard are very clear. Pregnant women need legislation which will vindicate their rights to life, freedom from torture, cruel, inhuman and degrading treatment, bodily integrity and autonomy, self-determination, private and family life, health, and the right of access to healthcare and to the information necessary to make appropriate medical decisions.

New legislation would need to perform three key tasks. First, it should decriminalise abortion to ensure that women and doctors who participate in lawful abortions, as well as those who counsel or provide information, are freed of the threat of prosecution. These individuals are all subject to myriad other regulations and as such we think invocation of the criminal law, and associated disproportionate punishment, is neither necessary nor appropriate.

Second, legislation should enable meaningful access to abortion, recognising that the important social role of sustaining foetal life in pregnancy must be voluntary and consensual. In many jurisdictions, particularly in Europe, abortion is available in early pregnancy on the woman's request. This approach recognises that women's autonomy and right to medical care must be paramount. Discussion in Ireland has so far been confined to the designation of limited grounds for abortion - life, health, rape, and fatal foetal abnormality - based on restrictive medical indicators.

Grounds-focused legislation would likely leave the majority of women travelling for abortions. In addition, by its nature, it struggles to provide anything more than minimalist compliance with international human rights norms: it may ensure that women are not too badly brutalised by dangerous pregnancy. Where grounds are treated as hurdles only deserving women may traverse, abortion legislation may inflict further harm on women: in some jurisdictions, women are required to 'prove' that they have been raped before they can access an abortion on that ground.

Third, recognising that the law in books and the law on the ground are very different things, legislation should engage with prevailing medical practice and ethics. In particular, conscientious objection and refusal of treatment require careful study and regulation, to ensure that, while doctors' consciences receive adequate protection, women are also able to access necessary medical treatment in a timely fashion.

Some months ago, anticipating eventual repeal of the Eighth Amendment, a group of 10 Irish legal academics with substantial expertise in reproductive rights law, medical law and criminal law wrote a draft Access to Abortion Bill, which addresses all of these questions. We published it as an open-access document online - it is available for anyone to read.

Our draft is not the only available model. By international and European standards it is, in many respects, lamentably conservative.

In terms of international human rights law, it provides the guarantees necessary to protect women from the most damaging encroachments of state and medical power. It is not the feminist, pro-choice legislation we would have written with a free hand. But it is a starting point for discussion, a clear and accessible outline of the key legal issues to be faced, and solid proof, if it were needed, that legislating for post-Eighth Amendment abortion care is far from the Herculean task the Taoiseach implies. We hope our work will clarify the limits of legal uncertainty in this area.

Members of this group of 10 have written to the Taoiseach offering to discuss the draft legislation with him. We hope that we will find an open space for discussion of a workable rights-focused abortion law for Ireland. At the moment, there are only excuses to offer.

Dr Vicky Conway works in Dublin City University, and Ms Mairead Enright, University of Kent, also contributed to this article

Irish Independent

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