Punishment for abortion in new Bill goes ‘significantly’ further than current law

Provisions to criminalise abortion in proposed legislation “significantly” overstate the offence in existing legislation, the Oireachtas hearings have been told.

Barrister Simon Mills said the section of the Protection of Life During Pregnancy Bill creating a criminal offence for abortion with imprisonment of up to 14 years, was "overbroad in the offence that it creates".

Dr Mills said it was a significant overstatement of the position contained in the 1861 Act, which criminalised abortion. If the Bill intended to restate the 1861 Act it “misses that mark”, he said.

"And some issue may also wish to be given to the question of the criminalisation of the vulnerable and desperate pregnant woman, which the Act also contemplates.

Offence
Under heading or section 19 of the proposed Protection of Life During Pregnancy Bill, it is an offence for a person to do any act with the intent to destroy unborn human life. The section will restate the general constitutional prohibition on abortion.

“It may well be that that’s dealt with by the need to [pursue] prosecutions only through the Director of Public Prosecutions but it is certainly a matter I ask the committee to give some consideration to,” Dr Mills said.

Solicitor Caroline Simons said, however, that abortion remained illegal in Britain and a woman had been sentenced to eight years for having an abortion at 30 weeks, so there was a need to retain the provision.

She called for an extension of the right to conscientious objection in the Bill to include trainee doctors, nurses, pharmacists and others involved in assisting in an abortion.

She said a decision had been made in the courts in Scotland recently in which two midwives were relieved of any obligation to supervise nurses participating in an abortion on the basis of conscientious objection.

“You do not have to have any religion to have a conscientious objection. A religious objection is something that comes from the tenets of a particular faith which you follow,’’ she said.

Dr Mills asked how extensive the right to conscientious objection was. There was a need to balance the rights involved between freedom of conscience and access to a constitutionally available right on the other.

He said: “To what extent is there an obligation on an individual to notify either the existence of a conscientious objection or the existence of previously publicly expressed views of which a patient may not be aware?”

Statutory basis
Barrister Paul Brady said allowing abortion for a suicidal woman marked a change in the law and it was inaccurate to say otherwise. Mr Brady said section or head 4 in the draft legislation "creates for the first time a statutory basis in Irish law for what may be a direct and intentional termination of an unborn child's life".

“Head 4 marks a change in the law. I don’t think it’s accurate to say otherwise,” he said.

The Government fell back on arguments of legal necessity and lack of freedom of choice, he said, “rather than offering stand alone or policy-based arguments to justify the drafting choices that have been made”.