Why the X Case legislation is not the 1967 British Abortion Act

Never ones to miss an opportunity to criticise the pro-choice lobby, the Sunday Independent contained a piece by Eilis O’Hanlon yesterday where she managed to say that although it was “absurd that governments have failed to legislate” on the X Case and that she tended “towards the pro-choice end” of the spectrum of views on abortion, that there was an element of intellectual dishonesty regarding the Bill currently being tabled by Clare Daly TD  and then went on to assert that by enacting this legislation for X Case, more specifically allowing for suicide as a ground for abortion, would lead to a situation similar to England – where abortion is available in a very wide range of grounds (It is not “on demand” as O’Hanlon would have you believe – one must fall in to a qualifying risk category in order to avail of an abortion service). In the article, O’Hanlon says;

“Once they have it in law that abortions can be carried out where the mother’s life is at risk, they immediately start redefining the definition of risk until it becomes meaningless. Daly’s bill explicitly states that the risk of suicide by a mother should qualify as a reason for providing her with an abortion.

The end result, as happened in the UK, is that you would effectively have abortion on demand…” [Emphasis mine]

In fairness to O’Hanlon, she does not actually state that she is against the legislation, but she does do a very good job of trotting out the same tired old arguments against legislation for the X Case trotted out by the anti-choice lobby.

There are multiple problems, myths and lies peddled in the O’Hanlon piece but it is probably more useful to look at the one quoted above in particular, and examine Deputy Daly’s proposed legislation in detail in comparison to the law governing abortion in Britain – the Abortion Act 1967, as this is one of the main arguments being put forward by the less rational and even lesser informed of the commentariat against the Daly Bill; that is to say, if abortion is allowed in any circumstance it will allow abortion by the backdoor.

That is a factually incorrect assertion.

Before looking at the detail of the British legislation, it also may be worth noting the logical outworking of O’Hanlon’s statement here.

Either she is suggesting that a woman could be suicidal and should not be allowed a life-saving abortion in those circumstances where to continue a pregnancy would pose a risk to her life or she is implying that not only would women (under this legislative framework) would enter their doctor’s surgery and fake suicidal tendancies to get an abortion, but also that a either a Consultant Psychologist and a GP, or a Consultant Psychiatrist and a GP, or in a (fake) emergency situation, two GPs, would all happily engage in this ruse so that a woman faking suicidal feelings could have an abortion.

If this is not the implication, then the alternative is that her implication is women (under this legislative framework) would enter their doctor’s surgery and fake suicidal tendancies to get an abortion, but also that a either a Consultant Psychologist and a GP, or a Consultant Psychiatrist and a GP, or in a (fake or real ) emergency situation, two GPs, are not actually qualified to state whether she was suicidal and assess the risk to her life, and that they would err on the side of caution and provide the abortion.

This displays a lack of knowledge of not only medical practice in Ireland, but also medical culture, that renders anything else said on the issue by O’Hanlon as automatically suspect (she also repeats the myth that Ireland is the safest place in the world to go through pregnancy so it was suspect from the beginning anyway).

The Irish health system certainly has its problems, but if O’Hanlon has a genuinely held view that there are legions of GPs, Consultant Psychologists, and Consultant Psychiatrists out there all waiting in the wings to carry out abortions at the drop of a hat when they have no medical basis for doing so (because the risk to the life of the pregnant woman, in O’Hanlon’s world, is not real), and breaking the law in the process and leaving themselves open to prosecution under Sections 58 and 59 of the Offences Against the Person Act 1861 (carrying a penalty of 3 years imprisonment) – then perhaps the real story that the Sunday Independent should be covering is the major inadequacies or the mass malpractice of the medical profession, rather than O’Hanlon’s issues with the pro-choice lobby.

All of that aside, it is clear to anyone who takes the time to read both pieces of legislation in detail that the British Abortion Act 1976 and the Deputy Clare Daly’s Medical Treatment (Termination of Pregnancy in Case of Risk to Life of Pregnant Woman) Bill 2012 are very, very different pieces of legislation – the latter being constitutionally prohibited from providing qualifying circumstances for abortion beyond that where a woman would die if she continued her pregnancy.

Comparing and Contrasting the Legislation

1. 1.    Circumstances under which medical termination is lawful

The 1967 Abortion Act establishes that abortion is legal in Britain up to the 24th week of pregnancy in a very broad range of circumstances, that is – where the continuance of pregnancy would involve risk to her (including to her physical and mental health) or risk to her existing children etc. In essence, this means that abortion may lawfully be performed where a woman would be better off, subject to the opinions of two doctors (who need not be of consultant rank), by having an abortion than continuing the pregnancy. However, if there is a substantial risk to the woman’s life or if there are foetal abnormalities, there is no time limit. It is important to note the clear distinction between a risk to the life of the pregnant woman, as opposed to a risk to her health. In order to comply with the 1967 Abortion Act, two doctors must give their consent to the procedure, stating that to continue with the pregnancy would present a risk to the physical or mental health of the woman or her existing children. This Act does not extend to the North of Ireland.

The proposed X Case legislation however, is much narrower. Were it to be enacted in its current form, it would allow for a lawful abortion to take place only where there is a real and substantial risk to the life of the pregnant woman according to either a GP and psychiatrist, or a GP and psychologist or two GPs in the absence of being able to secure the opinion of a psychologist or consultant (allowing for an emergency situation). This includes a risk of suicide. It does not allow for abortion in cases where there is a risk to her health in general, or her mental health, or where the continuance of a pregnancy involves a risk to her existing children, or where there are foetal abnormalities.

This legislation is drafted in order to solely give effect to the Supreme Court judgment in the X Case in 1992. On the basis of the X Case judgment, it does not include a time limit to prevent abortions from taking place, presumably because as to do so would be to automatically render the Bill unconstitutional i.e. the judgment held that a woman had a constitutional right to abortion in a case where there was a real and substantial risk to her life, including threat of suicide, and to introduce a time limit on this would be to undermine the Court’s decision in that – clearly a real and substantial risk may appear after any given time limit and to adhere to a time limit in that circumstance and deny her the procedure, would be to infringe upon the constitutional rights of that woman.

1967 Act

 (1)Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith—

[F1(a)that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or

(b)that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or

(c)that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or

(d)that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.]

(2)In determining whether the continuance of a pregnancy would involve such risk of injury to health as is mentioned in paragraph (a) [F2or (b)] of subsection (1) of this section, account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.

2012 Bill

4.―(1)  It shall be lawful for a medical practitioner to provide any form of medical treatment to a woman, despite its consequences for the life of the foetus, provided that―

 (a)  two medical practitioners have each formed an honestly held and reasonable belief that there is a real and substantial risk to the life of that woman, other than through suicide or another condition ordinarily diagnosed and or treated by a consultant psychiatrist or a clinical psychologist which can be averted only by the provision of that medical treatment, or

(b) there is a real and substantial risk to the life of the woman through suicide or another condition ordinarily diagnosed and or treated by a consultant psychiatrist or a clinical psychologist as determined by―

(i) one medical practitioner and one consultant psychiatrist, or

(ii) one medical practitioner and one clinical psychologist, or

(iii) , in the absence of an available consultant psychiatrist or a clinical psychologist and to prevent undue delay in the examination and or treatment of the woman, two medical practitioners,

who have formed an honestly held and reasonable belief that there is a real and substantial risk to the life of that woman which can be averted only by the provision of that medical treatment.

1. 2.    Notification of medical terminations

Section 2 of the 1967 Act requires the Minister for Health in respect of England and Wales, and the Secretary of State in Scotland to introduce Statutory Instruments in order to, stipulate the medical practitioners who may carry out medical terminations; requires that the number of terminations be recorded; prohibits the disclosure of these recordings where they are not pursuant to the regulations; set out an offence where a person wilfully contravenes the regulations.

There is no equivalent provision in the 2012 Bill. However there is a provision that stipulates the medical practitioners who may certify whether there is a real and substantial risk to the life of a pregnant woman, including whether she is suicidal. It is presumable that statistics and data regarding the number of lawful terminations carried out, were the Bill passed, would be required either by the introduction of a Statutory Instrument, or HSE Guidelines.

1. 3.    Conscientious objection to performing medical treatment

There are conscientious objections clauses in both pieces of legislation although they are framed somewhat differently. The 1967 Act stipulates that no person is under a duty to participate in the provision of this medical treatment where they have a conscientious objection. If this is to be tested in the courts, the burden of proof rests on the person attempting to claim it, except in the case of Scotland, where having sworn an oath to this effect will discharge the burden of proof in law. The conscientious objection does not apply where there is an immediate risk to life of the woman.

The 2012 Bill also provides a conscientious objection to participating in providing this medical treatment; however it stipulates that it must be an “honestly held and reasonable objection” to the provision of such treatment. This would initially appear to hold a slightly higher legal threshold of proving the validity of a conscientious objection, in that it must be both honestly held and reasonable in order to avail of it. However, there is no requirement on the burden of proof to be placed on the person attempting to claim it, so presumably normal proceedings under Irish law would apply – as in, the burden of proof would rest with the State in any legal proceedings and it would fall to the State to prove that a person did not have an honestly held or reasonable belief in proceedings where the conscientious objection is in question.

The conscientious objection does not apply where there is an immediate risk to life of the woman. Further to this, the individual objecting to participating in treatment must provide information to a woman about her right to such the treatment, and transfer the care of the woman to another practitioner who will perform the treatment. This may appear more onerous than the formula in the 1967 Act, however it goes on to require every health institution to have the number of required personnel in order to provide the treatment.

Therefore, it would appear unlikely that this conscientious objection provision would ever be tested in the Courts at all unless a case arose where (1) a hospital did not have the required staff on duty to perform a termination and (2) an on-duty Doctor raised a conscientious objection to participating in medical treatment where a pregnant woman presented with an real and substantial risk to her life resulting in the need for an abortion and (3) this woman actually died as a result of not receiving the required treatment resulting in (4) criminal proceedings or medical negligence proceedings being issued against the Doctor as a result of the failure to provide the emergency treatment resulting in the woman’s death and (5) the Doctor raised the conscientious objection clause to participating in the treatment as a defence in those proceedings.

Given the absence of legislation for the provision of lawful abortion where it is legal under the Constitution, this Bill if enacted would probably provide more protection for a medical practitioner who did not wish to participate in provision of such treatment; i.e. There would now be a legislative framework on the basis abortion is lawful under the Constitution in a case where there is a real and substantial risk to the life of a woman, meaning that were a pregnant woman to possess a real and substantial risk to her life and treatment were withheld due to the ethical objection of a doctor (despite the risk), leading to her death, the medical practitioner would be liable for her death due to medical negligence as there is currently no compulsion on a hospital to provide staff who will provide this service that would render the situation where the potential test of a conscientious objection clause in the courts unlikely.

1967 Act

(1)Subject to subsection (2) of this section, no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection:

Provided that in any legal proceedings the burden of proof of conscientious objection shall rest on the person claiming to rely on it.

(2)Nothing in subsection (1) of this section shall affect any duty to participate in treatment which is necessary to save the life or to prevent grave permanent injury to the physical or mental health of a pregnant woman.

(3)In any proceedings before a court in Scotland, a statement on oath by any person to the effect that he has a conscientious objection to participating in any treatment authorised by this Act shall be sufficient evidence for the purpose of discharging the burden of proof imposed upon him by subsection (1) of this section.

2012 Bill

5.―(1) No individual directly involved in the provision of medical treatment provided for in this Act shall be under a duty or be placed under a duty, whether by contract or otherwise, to participate in the provision of such medical treatment if he or she has an honestly held and reasonable objection to so doing―

(a) provided that his or her refusal to participate in the provision of such medical treatment does not cause an immediate risk to the life of the woman, and

(b) provided that, in the case of a medical practitioner who has an honestly held and reasonable objection to participation in the provision of any medical treatment provided for under this Act, such a medical practitioner shall―

(i) provide all relevant information to the woman about her right to such medical treatment,

(ii) where another medical practitioner is competent and readily available to participate in the provision of such medical treatment, refer or transfer the woman to the care of that other practitioner, or

(iii) participate in any medical treatment provided for in this Act where such medical treatment is immediately necessary to save the life of the woman and where no other competent medical practitioner is available to perform such medical treatment.

(c) Notwithstanding the provisions of this subsection, it shall be the duty of every health institution to ensure that the necessary number and category of personnel, both medical and non-medical, are made available and are not obstructed in the provision to a woman of such medical treatment as is provided for in this Act.

      (2) No institution, organisation or third party shall refuse to provide medical treatment to a woman under the terms of this section.

Supplementary Provisions of the 1967 Act and the 2012 Bill

Sections 5 and 6 of the 1967 Act are technical provisions that state that any termination performed that do not fall within the criteria of Section 1 of the 1967 Act are deemed unlawful terminations according to the provisions set out in the Offences Against the Person Act 1861. Section 3 (1) of the 2012 Bill contains a similar provision and states that any termination that does not fill the clear criteria set out in the Bill is unlawful under the provisions of the Offences Against the Person Act 1861.

Section 3 (2) of the 2012 Bill has the effect of repealing section 6 of the Regulation of Information (Services Outside State for Termination of Pregnancies) Act 1995, which prohibits persons supplying information on abortion from having any “interest, direct or indirect” in any clinic offering abortion services outside the State. Given the differing abortion law in Britain, there is no equivalent in the British legislation.

Capacity to consent to treatment by a minor

Section 6 (3) of the Bill stipulates that provided a minor who satisfies the criteria set out in the Bill for undergoing a lawful termination, may receive this treatment without the validation of her parents or guardian.

The 1967 Act does not explicitly deal with minors and consent, however in Britain, 16 and 17 year olds can consent to medical treatment without it being overruled by their parents and minors under 16 can consent to treatment provided they have the intelligence to understand what they are doing. The medical law used to assess whether a person under 16 has the capacity to consent to treatment was set out by Lord Fraser and Lord Scarman in the House of Lords in the Gillick judgment, which indicated the circumstances under which a minor may undergo treatment.[1]

The test of whether a minor can consent to medical treatment or not is often referred to as the test of “Gillick competency.”  Lord Scarman stated;

“…it is not enough that she should understand the nature of the advice which is being given: she must also have a sufficient maturity to understand what is involved.” He stated further; “Parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision.”

The implication of this judgment is that where a minor has the capacity to consent, they may do so – a sensible enough approach to the area of consent to any medical treatment by a minor.

Abortion on demand? Certainly not.

All of that aside, it is unlikely it will even make it past the first Dáil vote and enter Committee Stage, let alone be passed in its entirety – given that that this is the Government is still awaiting feedback from the Expert Group on Abortion, combined with an unwillingness to legislate for X anyway, despite long-standing commitments to do so from Labour..

 However, the Medical Treatment (Termination of Pregnancy in Case of Risk to Life of Pregnant Woman) Bill 2012 will clearly not allow for abortion in the range of circumstances as set out by the 1967 Abortion Act, and it is either foolish or wilfully misleading for the likes of Eilis O’Hanlon to try and say it will.