Commentary on the General Scheme of a Bill to Regulate the Termination of Pregnancy (March 28, 2018)
I refer to the report by Sarah Bardon of a statement by Minister for Health, Simon Harris, that 'he cannot guarantee that legislation allowing for abortion would be passed by the current Government in the event the Eighth Amendment is repealed' 'Government may not be able "to pass abortion law” ', The Irish Times, Monday, April 2, 2018, p. 7. Sarah Bardon in the third last paragraph of that report informs us that 'Mr Harris said there would be an obligation on all TDs and Senators to implement the decision of the people.'
I believe that the Repeal of the 8th Amendment will be rejected by the people on Friday, May 25, 2018, and that because the Government’s proposed Referendum wording, and published General Scheme of a Bill to Regulate the Termination of Pregnancy (March 28, 2018), raise as many questions as it claims to resolve.
Firstly, the proposal is to delete Article 40.3.3º, as is, and to replace it with Schedule PART 2, 3º that reads: 'Provision may be made by law for the regulation of termination of pregnancy.'
Note the words 'may be'. They don’t imply that the Government shall make provision. It just as well might not. Minister Harris is just plain wrong. TDs and Senators are not obliged 'to implement the decision of the people'. That is nowhere in the Constitution, and besides all TDs and Senators have a Constitutional right to freedom of conscience and the free profession and practice of religion [44.2.1º], and the freedom from disabilities or discrimination because of their religious profession, belief or practice [44.2.3º]. Those rights are subject only to 'public order and morality', and the State would have to make a very strong case indeed for over–riding them.
The Referendum, if successful will repeal Article 40.3.3º. That means that Constitutional Amendment 13 on Travel, and Amendment 14 on Information, will be repealed along with Amendment 8 itself [the right to life of the unborn, and equal right to life of the mother]. The statute law on the provision of Information is to be repealed also. The General Scheme of a Bill to Regulate the Terminaton of Pregnancy (March 28, 2018) intends to repeal Michael Noonan’s Act, Regulation of Information Services Outside the State for Termination of Pregnancies Act 1995, and also the Protection of Life During Pregnancy Act 2013 [Head 20: Repeals]. So there is to be no specific provision in the law of the Republic of Ireland for permitting Travel and dissemination of Information in the case of terminations of pregnancy not allowed under this Referendum, though Regulations Head 2. (1) will give considerable powers of discretion to the Minister. It is claimed that pro–lifers are hypocritical for tolerating Amendments 13 and 14, but in fact a significant number of pro–lifers voted against them in 1992. Besides, the Travel Amendment specifically is not an Amendment to allow pregnant women to travel abroad for an abortion. It is rather an Amendment not to impede pregnant women from travelling. As to the Information Amendment, at present 13 of the 15 organizations involved in the Positive Options HSE scheme are willing to give out abortion–facilitating information. The 2 who aren’t, are required under the terms of their contract with the HSE, to refer pregnant women to organizations who are willing to give out abortion–facilitation information. If all such organizations were required by law to make a serious attempt to dissuade pregnant women from getting abortions, that would be a definite improvement on the situation, but as it happens, the dominant psychological approach in counselling pregnant women with unwanted pregnancies is to follow the so–called 'non-directive approach'. Though that approach has no legal crediblity, when it comes to life–and–death issues, as Senator Rónán Mullen pointed out to the Oireachtas Joint Committee on the Eighth Amendment of the Constitution, it is nevertheless the one that is dominant. It is an established fact that, if all pregnant women were required to view an ultra–sound of their baby, 90% of them would opt for keeping their baby. But, in reality, the situation tends to convince the pregnant women that abortion is their best, and probably only option. All pro-lifers are accused of hypocrisy in this regard. If the Government intends to provide 'an Irish solution to an Irish problem', why will it still be left up to the discretion of the Minister, to permit Travel and Information, in the case of those abortions that will not be allowed in the General Scheme is enacted?
The definitions in the General Scheme are of interest, the following especially [Head 1: Definitions 1. ]:
“foetus" means an embryo or a foetus during the period of time commencing after implantation in the uterus of a woman and ending on the complete emergence of the foetus from the body of the woman;
"medical procedure" includes the prescribing, by a medical practitioner, of any drug or medical treatment;
"termination of pregnancy" means a medical procedure which is intended to end the life of the foetus
From those definitions, and others, a number of points emerge:
1) The General Scheme, if enacted, will not endorse the abortion/elimination of the pre-implanted human embryo. That means that methods of birth prevention that eliminate the pre-implanted embryo will not find any protection in the General Scheme, if enacted. So much for Minister Harris 'package of measures' to prevent unwanted pregnancies, that are to include the provision of free–of–charge contraceptives and abortifacients, and long–acting 'contraceptives' [meaning other methods of birth prevention that are more likely to act by eliminating the pre-implanted embryo].
2) In Vitro Fertilization, that regularly wastes 96% of human embryos conceived in vitro [i.e. 'on glass'], will not find any protection in the General Scheme, if enacted.
3) The General Scheme recognizes that a foetus is a human embryo, or foetus, after implantation. The Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 in Interpretation 2. (1) under 'body' acknowledges that the human foetus is a human person. The General Scheme, therefore, dispenses with the usual embyrological/foetological distinction between 'embryo' and 'foetus', according to which the unborn is called an 'embryo' in the first 8 weeks of pregnancy, and a 'foetus' from then until he/she emerges from the womb. This highlights the fact that, though the Government acknowledges that the unborn from implantation to emerging from the womb is a human person, it nevertheless intends to allow the ending of his/her life at a time in his/her development when he/she could not possibly be guilt of any crime. In that, it is using an exceptionalist argument in favour of capital punishment of the innocent.
4) The definition of 'medical procedure' covers only medical abortions, and therefore, does not permit surgical abortions. Some abortions performed before, and many abortions performed after, 12 weeks of pregnancy, are surgical abortions.
5) Conscientious objection [Head 15], with reference to a medical practitioner, a nurse, or a midwife, is no better than the Protection of Life During Pregnancy Act 2013 in that it requires someone who is not willing to perform, or take part in, the abortion himself/herself, to refer the pregnant woman on to someone who is prepared to perform, or take part in the abortion itself. As Dr Kevin Doran, Bishop of Elphin, pointed out some months ago at a bioethics conference in Athlone, that type of recognition of conscientious objection, in fact, does not respect the conscientious objections of pro–life medics, nurses, midwives or paramedics.