Compromise Bill doomed to disappoint some

Given its brevity and relative simplicity, the most surprising thing about the Protection of Life During Pregnancy Bill is that it took 21 years to draw up.

The Bill effectively codifies the judgments of the X case and the ABC case as well as taking account of the Constitution’s provisions on the right to life of the unborn. In doing so, it barely adds to, or subtracts from, the fundamentals of the official approach to the subject.

It is, therefore, doomed to disappoint those who, on the one hand, want to see abortion legislation liberalised and others who would like to roll back the limited circumstances under which abortion was legalised under article 40 of the Constitution through another referendum. Both these groups have raised their voices quickly and sharply in opposition, but this is in sharp contrast to the muted and even positive reaction from Fianna Fáil and Sinn Féin.

'Pall of uncertainty' lifted
More importantly, the response from the obstetricians and psychiatrists who have to make the hard decisions about women's access to terminations has been largely enthusiastic. Many professionals looked for clarity to guide them through what Tánaiste Eamon Gilmore called the "pall of uncertainty" on the issue over the past two decades. The Bill seems to deliver this in the form of a process for women seeking a termination when their life is threatened.

The process proposed is a compromise, particularly in relation to women looking for a termination due to suicidal ideation (or “self-destruction” as it is termed in the legislation). In medical emergencies, just one doctor will be able to decide a termination is justified, but where the threat of suicide is put forward, this number rises to three.

That will suffice where the panel gives the go-ahead, but where they issue a refusal the woman will have to appeal to a further three doctors, including two psychiatrists. There is no mention, however, of the woman having to be re-interviewed and an earlier suggestion that one of the doctors would have to be a perinatal psychiatrist has been dropped.

Labour TDs will be happy the model proposed follows the proposals of the Expert Group on Abortion report published last year, except in relation to suicidal ideation. The dropping of an intermediate review stage (before appeals) and the removal of the perinatal psychiatrist requirement has also pleased the party’s backbenchers.

Assuaging concerns
The requirement that assessing doctors reach unanimity in their decisions is designed to assuage the concerns of some of the more vocal Fine Gael TDs. The renaming of the Bill – it was originally entitled the Protection of Maternal Life Bill – may also be a sop to this group.

One question which arises is whether it is constitutional to treat one group of women seeking a termination – those at risk of suicide – differently from other groups, eg, those with a life-threatening physical illness. Attorney General Máire Whelan is likely to have advised Cabinet on whether this disparity is justified because of the difficulty in objectively assessing mental health risk.

Also controversial is the lack of a cutoff point for terminations in the Bill, in terms of gestational age. Other jurisdictions have specific prohibitions on late abortions but, as Minister for Health James Reilly bluntly put it yesterday, there was "no way around" the existing law of the land and "you cannot put a time limit on a right".

Less than meets the eye
In practical terms, however, there may be less to this than has been claimed on the pro-life side. The legislation requires doctors, in cases where the foetus may be viable outside the womb, to "make all efforts to sustain its life after delivery". At the current state of medical practice, this could be as early as 22-23 weeks' gestation.

This means, according to Dr Rhona Mahony, master of the National Maternity Hospital, that there is "no question" of late terminations being permitted under the Bill.

The proposed repeal of the sections of the Offence against the Person Act 1861 dealing with abortion has also attracted criticism from both sides of the debate. The Victorian penalty of penal servitude for life is being replaced with a 14-year jail term. The explanatory note to the legislation argues it would be inequitable to penalise the doctor performing an illegal termination but not the woman undergoing the procedure.

While the Bill deals with the challenges posed by the X case and ABC case, it has nothing to say about providing terminations for women who have been raped, or whose babies have a terminal foetal abnormality. Equally, it is hard to see how it would have made any difference in the case of Savita Halappanavar, accepting the analysis that her life wasn’t under threat at the time she sought a termination and that it was too late to save her life once the threat was identified.

Changing the law in these respects would require a constitutional referendum, something the current Government clearly isn’t interested in, or capable of, delivering.

Ministers yesterday said they believed the legislation would save women’s lives; pro-choice TD Clare Daly claimed it would put lives at risk. However, the most likely outcome is that women will continue to travel to the UK in their thousands rather than brave the bureaucracy proposed in the Bill.