1. Healthcare Law and the right to life of the unborn child & abortion

2. Abortion in Ireland: YouTube Video Available from: http://www.ifpa.ie/Hot- Topics/Abortion/YouTube-Video http://www.ifpa.ie/Hot- Topics/Abortion/YouTube-Video

3. Abortion in Ireland Abortion is unlawful in Ireland ss.58 & 59 of the Offences Against the Persons Act 1861 Article 40.3.3 of the Irish Constitution Regulation of Information (Services Outside the State for the Termination of Pregnancies) Act 1995

4. Offences Against the Persons Act 1861 Section 58 of this Act renders it illegal for a woman to intentionally have an abortion, as it stipulates that: “Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for life or for any term not less than three years, - or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confinement.”

5. Offences Against the Persons Act 1861 Section 59 of this legislation also renders it a criminal offence for anyone to help a woman to have an abortion, as it provides that: “Whoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanour…” Both ss.58 & 59 are still in force in Ireland, and have been endorsed by section 58 of the Civil Liability Act 1961 and section 10 of the Health (Family Planning) Act 1979.

6. The Irish Constitution & the right to life of the unborn child Article 40.3.2° of the Irish Constitution guarantees the right to life of every citizen. However, it was not until the 1970s that the courts began to consider the right to life in greater detail. The first time that the Irish courts considered whether the unborn child also had a right to life, and therefore warranted constitutional protection, was in McGee v. Attorney General [1974] IR 284. McGee v. Attorney General – concerned the constitutional right to marital privacy. This case mentioned the possibility of the unborn child also having a right to life under the Constitution for the first time.

7. McGee v. Attorney General [1974] IR 284 Mrs McGee initiated legal proceedings asserting that she had a Constitutional right to import contraceptives. Mrs McGee was 27 years old, married and already had four children. During each pregnancy she suffered from toxaemia, and appeared to suffer from cerebral thrombosis or a cerebral spasm with a degree of hypertension in her second pregnancy. Her doctor subsequently informed her that her life was at risk if she had any more children. Mrs McGee and her husband decided that they would have no more children but they still wished to continue having a sexual relationship. However because of the high risk of thrombosis, it was not possible for her to use the contraceptive pill, thus her doctor fitted her with a diaphragm to be used in conjunction with a spermicidal jelly. Her doctor provided her with a prescription for a further supply of the spermicidal jelly, which she had to send to England because it was not manufactured in Ireland.

8. McGee v. Attorney General [1974] IR 284 Customs authorities seized this prescription of spermicidal jelly when it arrived by post in Ireland, as this product was on a list of prohibited goods (as set out under section 42 of the Customs Consolidation Act, 1876, by virtue of section 17, sub-section 3, of the Criminal Law Amendment Act, 1935). Until 1973, it was illegal to import contraceptives for sale, as section 17(1) of the Criminal Law Amendment Act 1935 stipulated that: “It shall not be lawful for any person to sell, or expose, offer, advertise, or keep for sale or to import or attempt to import into… [Ireland] for sale, any contraceptive.” Mrs Gee was unsuccessful in her legal proceedings before the High Court whereby she sought a declaration that section 17(1) of the Criminal Law Amendment Act was in violation of her constitutional right to marital privacy.

9. McGee v. Attorney General [1974] IR 284 She then appealed to the Supreme Court, which upheld the right to marital privacy including the use of contraceptives in its judgment, and it also ruled that the Irish State had a positive duty under Article 40.3.2° of the Constitution to allow a married woman, for whom pregnancy would endanger her life, to have access to contraceptive means. It is notable that in this judgment, Justice Walsh mentioned that the unborn child also had a right to life under the Constitution for the first time, as he stated that: “…any action on the part of either the husband and wife or of the State to limit family sizes by endangering or destroying human life must necessarily not only be an offence against the common good but also against the guaranteed personal rights of the human life in question.”

10. Abortion & the Irish Constitution First abortion referendum held in 1983, resulted in a constitutional amendment Article 40.3.3°: “the State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and as far as practicable, to vindicate that right.” There is no specific reference to a right to abortion under Article 40.3.3°, instead it provides for a positive right to life of the unborn child. No guidance as to what constitutes ‘the unborn’ or when life begins.

11. Aftermath of 1983 Constitutional amendment The first case to be brought concerning interpretation of Article 40.3.3° of the Constitution was the Attorney General (SPUC (Ireland) Ltd) v Open Door Counselling Limited and Dublin Wellwoman Centre Limited [1988] IR 593. Open Door Counselling Limited and Dublin Wellwoman Centre Limited, were both non-profit making organisations. Open Door Counselling Limited provided women’s health and counselling services. Dublin Wellwoman Centre Limited’s offered services that included counselling and marriage, family planning, procreation and women’s health (such as smear tests, breast examinations, infertility, artificial insemination and the counselling and advice for pregnant women). Both defendants provided counselling and assistance for women who had an unwanted pregnancy. Counselling for such women included information about terminating the pregnancy, and in those situations where the pregnant woman wished to consider abortion, she would be referred to a medical clinic in Great Britain that provided abortion services.

12. Attorney General (SPUC (Ireland) Ltd) v Open Door Counselling Limited and Dublin Wellwoman Centre Limited [1988] IR 593 SPUC sought an injunction to prevent the defendants from providing counselling, advice or assistance for pregnant women on travelling abroad for an abortion. SPUC also sought declarations that the defendants’ activities were contrary to Article 40.3.3° of the Constitution and that these activities also constituted a conspiracy to corrupt public morals. The High Court did not find that the defendants’ activities amounted to a conspiracy to corrupt public morals; however it did grant a declaration that these activities were unlawful in respect of Article 40.3.3°. Furthermore, the High Court judge, Hamilton P. granted an injunction prohibiting the defendants, Open Door Counselling Ltd, from providing any assistance or counselling for pregnant women seeking further information on abortion, or how to procure an abortion. Defendants appealed this decision to the Supreme Court. Supreme Court rejected the appeal on the grounds that it had a duty to uphold Article 40.3.3° and protect the right to life of the unborn.

13. Aftermath of the 1983 amendment Open Door and Dublin Wellwoman v Ireland (1991) 14 EHHRep 131 (European Commission on Human Rights judgment). Open Door and Dublin Wellwoman v Ireland (1992) 15 EHRR 244. (European Court of Human Rights judgment).

14. Society for the Protection of the Unborn Child (Ireland) Limited v Grogan and Others [1989] IR 753. SPUC sought an injunction to prevent student organisations from disseminating welfare guides that included information and details about abortion clinics and locations in England on the grounds that to do so was a breach of Article 40.3.3° of the Constitution. The Irish courts referred the case to the European Court of Justice (hereinafter referred to as the ECJ) concerning two questions: (1) if abortion constituted a ‘service’ for the purposes of the Treaty of Rome (which established the European Union) (2) if the student organisations in this case had a right to impart and receive information about abortion under EU law. Case C-159/80, SPUC (Ireland) Ltd. v Grogan [1991] ECR I- 4685 - ECJ found that the medical termination of a pregnancy was a service within the meaning of European Union law; however it ruled that the students’ organisations were not engaged in an economic activity that would enable them to claim a right under EU law to distribute information about abortion services.

15. Abortion, the Irish Constitution & the European Union Irish Government obtained assurances from the Member States of the European Union (distinct from the Council of Europe) that the Maastricht Treaty would not affect Ireland’s Constitutional position on abortion and would preserve the Constitutional right to life of the unborn child from external interferences. This resulted in Protocol No. 17 to the Treaty on European Union, which safeguards the Irish Constitutional protection of the right to life of the unborn child, as Protocol No. 17 provides that the Maastricht Treaty, or any of the establishing Treaties of the European Communities or subsequent Treaties that amend or supplement these Treaties, will not impinge on Article 40.3.3° of the Irish Constitution and its application Following the decision in the Attorney General v X, Declaration of the High Contracting Parties to the Treaty on the European Union on 1st May 1992, which categorically stated that Protocol No. 17 would not impede upon the rights to travel or to information, was adopted. Protocol 35 of the Treaty of Lisbon - in 2008 a legally binding Decision of the Heads of State or Governments of all the EU member states was obtained by the Irish Government containing assurances the Lisbon Treaty would not interfere with the Irish Constitutional protection of the right to life of the unborn child and the equal right to life of the mother.

16. Attorney General v. X [1992] IR 1 14 year old girl raped & became pregnant The girl and her parents proposed to travel to England to procure an abortion The girl claimed her right to life was in danger if the pregnancy were allowed to go to term Supreme Court held that the right to life of the mother had to be balanced against that of the foetus Supreme Court duty “to defend and vindicate the right to life of the unborn”

17. Attorney General v. X [1992] IR 1 The Supreme Court determined that abortion is permissible under Article 40.3.3°: “…if it is established as a matter of probability that there is a real and substantial risk to the life as distinct from the health of the mother which can only be avoided by the termination of her pregnancy… such termination is permissible.”

18. Abortion Referendum - 1992 Three proposed amendments: First proposal aimed to exclude potential suicide as constituting a real and substantial risk to the life of the mother Second proposal related to freedom to travel outside the jurisdiction to avail of abortion services elsewhere Third proposal – right of women to have access on abortion and abortion services Second & third proposed amendments were approved becoming the Thirteenth & Fourteenth Constitutional Amendments.

19. Article 40.3.3 – as amended “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate that right. This subsection shall not limit freedom to travel between the State and another state. This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.”

20. Regulating information on abortion and abortion services Re the Regulation of Information (Services outside the State for Termination of Pregnancies) Bill 1995 [1995] 2 ILRM 81 Section 1(1) of this Act defines the “termination of pregnancies” as the intentional procurement of miscarriages of women who are pregnant. Sections 2(a) and 2(b) limit the scope of the Act and prescribe that this is information that ‘is likely to be required by a woman for the purpose of availing herself or services provided outside the State for the termination of pregnancies’, and concerns information on abortion services or service providers. This can include information about what abortion is, where an abortion can be obtained and details of abortion service providers. Where it is permissible to provide information, it is requisite that any such information must be truthful and objective. Prohibitions are contained in section 4 of the 1995 Act in respect of the display of notices or advertisements containing abortion information in places where the public has general access, as well as the distribution of unsolicited material on the termination of pregnancy.

21. Regulation of Information (Services outside the State for Termination of Pregnancies) Act 1995 Section 5 stipulates very clearly that it is unlawful for those providing information to promote or advocate abortion, and it imposes rather stringent conditions on the provision of information, advice or counselling to women. Those persons providing the information about abortion also have a legislative duty to discuss options other than abortion. Section 6 renders it unlawful for any person to provide information if that person has an interest in the abortion services. Section 8 of the 1995 Act prohibits any person who provides information about pregnancy termination services from making arrangements with providers of such services on behalf of a pregnant woman. Anyone who is found to be in breach of the statutory provisions listed above will be deemed guilty of an offence under section 10 (1) and liable to a fine. It is possible for a person to refuse to provide information about abortion and abortion services abroad on the grounds of conscientious objection as section 13 clarifies that no person will be under an obligation to provide such information.

22. Constitution Review Group Report (1996) Constitution Review Group proposed a number of options in its report on abortion: including the introduction of legislation to clarify the principles established by the Supreme Court; specifically recommended that this legislation should include a definition of ‘unborn’; require written medical certification of ‘real and substantial risk to the life of the mother’ by appropriate medical practitioners; introduce a time limit on when a pregnancy could lawfully be terminated; provide legislative protection for medical practitioners. To date, none of these proposed legislative measures have been introduced to make clear when abortion may be lawfully obtained in Ireland. The Constitution Review Group. Report of the Constitution Review Group. Dublin: The Stationery Office; 1996. Available from: http://www.constitution.ie/reports/crg.pdfhttp://www.constitution.ie/reports/crg.pdf

23. A and B v Eastern Health Board & Ors [1998] 1 IR 464 A thirteen-year-old girl from the Traveller Community, who became pregnant after allegedly being raped by a family friend. The girl was temporarily placed in local authority care afterwards as a consequence of her parents’ unusual behaviour after the alleged rape. The girl sought to have an abortion, which her parents had initially supported this decision and were prepared to allow the girl to travel to England with her foster mother for the purpose of procuring an abortion. There was evidence that the girl would commit suicide if she were to continue to term with the pregnancy. However, her parents subsequently changed their minds, with her mother completely opposing an abortion in all circumstances, whereas her father seemed to supportive of abortion if the daughter was suicidal. Her parents unsuccessfully sought an injunction to restrain the Eastern Health Board from making arrangements for the girl to travel abroad for the purpose of having an abortion.

24. A and B v Eastern Health Board & Ors [1998] 1 IR 464 Justice Geoghegan made a number of non-binding comments in his judgment. The first was that it would be inappropriate ‘to turn the High Court into some kind of licensing authority for abortions’. Held that the courts were restricted to conferring a right to travel to another jurisdiction for an abortion only in those circumstances where the mother’s life was at risk, and not for any other reason. Justice Geoghegan opined that Article 40.3.3° did not confer a positive right to travel for the purpose of procuring an abortion, rather that it had a negative effect insofar as it would prevent the granting of injunctions to prohibit travelling for the purpose of having an abortion abroad.

25. Further developments Department of the Taoiseach. Green Paper on Abortion. 1999. Discussion document on the issues concerning abortion, not a policy document. Available from: http://www.taoiseach.ie/attached_files/Pdf%20files/GreenPa perOnAbortion.pdf http://www.taoiseach.ie/attached_files/Pdf%20files/GreenPa perOnAbortion.pdf Medical Council. Guide to professional conduct and ethics for registered medical practitioners. 7th edition. 2009. Available from https://www.medicalcouncil.ie/Media- Centre/Publications/2008-2009/Guide-to-Professional- Conduct-and-Behaviour-for-Registered-Medical- Practitioners-pdf.pdfhttps://www.medicalcouncil.ie/Media- Centre/Publications/2008-2009/Guide-to-Professional- Conduct-and-Behaviour-for-Registered-Medical- Practitioners-pdf.pdf

26. Irish Medical Council Guidelines on Abortion Article 21.1 informs medical practitioners that abortion is lawful only where there is a real and substantial risk to the mother’s life, including the risk of suicide (as established in the Attorney General v X). This provision stipulates that it is necessary to conduct a full assessment of such a risk. However, there is no guidance contained within Article 21.1 as to what should be done in the circumstances following an assessment whereby the medical practitioner concludes that there is a real and substantial risk to the mother’s life. The guidelines fall short of instructing medical practitioners that they can lawfully perform an abortion in this situation. Article 21.2 provides that it is legally permissible in Ireland for medical practitioners to give information about abortions in other jurisdictions. However, Article 21.2 clearly points out that it is illegal to promote abortion or to encourage a woman to have an abortion (which mirrors the relevant sections of the Regulation of Information (Services outside the State for Termination of Pregnancies) Act 1995. Article 21.3 imposes an ethical and professional duty on medical practitioners to provide medical care, support and follow-up treatment for any woman who has had an abortion in another jurisdiction.

27. Baby O. v. Minister for Justice [2002] 2 IR 169 Judicial review proceedings initiated by the second applicant, a Nigerian national who was pregnant, in respect of a deportation order made against her, subsequent to refusal of her application for refugee status. Supreme Court reiterated that Article 40.3.3° of the Constitution was intended to prevent the legalisation of abortion either by legislation or judicial decision within the State, except where there was a real and substantial risk to the life of the mother which could only be avoided by the termination of the pregnancy.

28. Abortion Referendum 2002 Unsuccessful constitutional referendum in March 2002 to insert a new provision, Article 40.3.4: “In particular, the life of the unborn in the womb shall be protected in accordance with the provisions of the Protection of Human Life in Pregnancy Act 2002.” Aim of the Protection of Human Life in Pregnancy Bill 2002 was to remove the threat of suicide as a ground for the legal termination of pregnancy. Voter turnout = 42.89% of total electorate 50.42% vote against 49.58% vote in favour

29. European Convention on Human Rights Ireland is a State party to the Convention 1950 – Ireland was one of the first signatories to the Convention. Ratified in February 1953 & came into force in September 1953 European Convention on Human Rights Act 2003

30. Gives further effect in Irish law, providing for a more direct role for the Convention in Irish courts. The 2003 Act does not provide for the direct incorporation of the Convention: “It is a misleading metaphor to say that the Convention was incorporated into domestic law. It was not. The rights contained in the Convention are now a part of Irish law. They are so by reason of the Act of 2003. That is their source. Not the Convention. So it is only correct to say, as understood in this way, that the Convention forms part of our law.” (McKechnie J, Foy v An t-Ard Chláraitheoir [2007])

31. European Convention on Human Rights Act 2003 The 2003 Act incorporates the Convention Provides for additional rights for Irish citizens to be applied in Irish courts Convention has sub-constitutional status (Art.15.2.1 provides that the Oireachtas has the sole & exclusive power of making laws for the state)

32. D v Ireland, Application No. 24699/02, European Court of Human Rights, 27th June 2006 Concerned a complaint about the ban on access to abortion services in Ireland D was a mother of two expecting twins One twin had a severe chromosomal abnormality which would be fatal to the other twin. D sought to procure an abortion when she was informed after an amniocentesis test and an ultrasound scan that one twin had Trisomy 18 (Edward’s Syndrome) with little chance of survival and that the other twin had not developed since eight weeks gestation. Given these tragic circumstances, D sought to terminate the pregnancy, as she was physically and mentally not capable of going through with the pregnancy.

33. D v Ireland, Application No. 24699/02 D travelled to England for an abortion. D did not initiate legal proceedings in Ireland prior to this. D took her case before the ECtHR asserting that she had been denied her right to access an abortion in Ireland. Case deemed inadmissible by ECtHR as D failed to exhaust domestic remedies.

34. Alicja Tysiac v Poland, Application no. 5410/03 Tysiac suffered from severe myopia; concern about impact of 3 rd pregnancy on her health as there was a serious risk to her eyesight if the pregnancy went to term; deemed that there were no medical grounds to permit a therapeutic abortion Polish law permits abortion where pregnancy is a risk to the woman’s life or health – approval of 2 non- treating independent doctors Absence of procedural and regulatory framework to determine disputes between the patient and medical specialists regarding access to abortion on therapeutic grounds ECtHR held that there had been a violation of Article 8 (right to respect for private life)

35. A, B & C v Ireland, Application no. 25579/05 2005 – 3 women initiated case asserting that the legal restrictions on abortion in Ireland is contrary to their rights under Articles 8 & 14 of the ECHR. Case heard before Grand Chamber of 17 judges on 9 th December 2009. Judgment issued 16 th December 2010.

36. A, B & C v Ireland, Application no. 25579/05 A - 4 children in foster care due to problems with mother’s alcoholism; wanted children back; unintentionally became pregnant; went to England for abortion & suffered medical problems afterwards but was afraid to seek medical advice B – unintentional pregnancy; abortion due to risk of ectopic pregnancy; suffered complications after abortion & felt unable to seek medical advice in Ireland C – cancer patient, unaware of pregnancy until after cancer tests; sought assurances cancer treatment would not interfere with pregnancy & that her life was not at risk; could not find a doctor in Ireland willing to do so; travelled to England for abortion and had to wait 8 weeks for surgical abortion; also developed complications after abortion

37. Questions before the ECtHR Have the applicants exhausted domestic remedies as required by Article 35 of the Convention? In the particular circumstances of each applicant’s case, did the national legal position concerning abortion interfere with her rights under Article 8 of the Convention? If so, was the interference provided for by law, did it pursue a legitimate aim and was it proportionate to that aim? Did any of the applicants suffer discrimination in breach of Article 14 taken together with Article 8? Does any issue arise under Article 2 and/or 3 of the Convention?

38. A, B & C v Ireland – the judgment ECtHr deemed the case to be admissible. Rejected claims by A and B that there was a violation of their right to a private and family life under Article 8 because they could not have a lawful abortion for ‘health and well-being reasons’. ECtHR recognised that A and B had a Constitutional right to travel to another jurisdiction for an abortion. The fact that both women may not have sought medical treatment because of a perceived stigma in society did not merit violation of their rights under the Constitution or ECHR. ECtHR did not suggest liberalisation of Irish abortion laws to include a right to an abortion where necessary to safeguard a woman’s right to health or well-being.

39. A, B & C v Ireland – the judgment ECtHR ruled that C’s rights under Article 8 had been breached. Unanimous decision that C’s rights were breached because of the absence of a procedural or legal framework to determine when abortion could lawfully be performed. Implications of the ECtHR ruling is that the onus is on Ireland to introduce legislation regulating the provision of abortion services that are constitutionally permissible.

40. A, B & C v Ireland – what next? Programme for Government 2011 provided for the establishment of an expert group by the end of 2011 to make recommendations to Government on how to address the issues raised by the ECtHR. http://www.taoiseach.gov.ie/eng/Publications/Publications_2 011/Programme_for_Government_2011.pdf http://www.taoiseach.gov.ie/eng/Publications/Publications_2 011/Programme_for_Government_2011.pdf Action Report submitted to the Committee of Ministers of the Council of Europe on 13th January 2012, the Irish Government confirmed that the Expert Group would be established by the end of January 2012 & initially were to report by July 2012. Expert Group presented the Government with a written report by in November 2012 Medical Treatment (Termination of Pregnancy in Case of Risk to Life of Pregnant Woman) Bill introduced in Dáil Éireann on the 20 th anniversary of the Supreme Court judgment in Attorney General v X (February 22, 2012) – rejected by 111 votes to 20 votes

41. Expert Group Report Terms of reference stipulate that it must: analyse the ECtHR ruling in A, B, C v Ireland, to put forward recommendations as to how this ruling can be effectively implemented in Ireland in respect of constitutional, ethical, legal and medical concerns, and to explain how this will impact upon the provision of appropriate health care services for pregnant women

42. Expert Group Recommendations: Four Options for Implementation 1. Introduction of non-statutory guidelines that would provide guidance to health care professionals and lay persons on access to a lawful abortion in Ireland. 2. The Minister for Health would issue regulations to govern the provision of lawful termination of pregnancy, which would place access to a lawful abortion on a statutory basis. 3. Introduce primary legislation alone to regulate access to a lawful termination of pregnancy that would give effect to the Supreme Court judgment in the Attorney General v X, and comply with the ECHR requirements and ECtHR ruling in A, B, C v Ireland. 4. Introduce legislation plus regulations to provide for access to lawful termination of pregnancy in Ireland. The Expert Group also puts forward recommendations concerning the Offences against the Person Act, 1861, presenting two options: either (1) repeal and replacement of the 1861 Act, or (2) amend the 1861 Act.

43. A, B & C v Ireland – what next? Death of Savita Halappanavar in October 2012 has further ignited the abortion debate & led to increased pressure on the Irish government to deal with the issue. Medical Treatment (Termination of Pregnancy in Case of Risk to Life of Pregnant Woman) Bill re-introduced in Dáil Éireann on 28 th November 2012 – again defeated by 101 to 27 votes. On 19 th December 2012, the Government announced its decision to implement Option 4 proposed by the Expert Group. January 2013 – Oireachtas Committee on Health convened 3 days of hearings from medical groups, legal representatives, pro- choice & anti-abortion groups to develop Heads of Bills for legislation to be presented for debate. http://oireachtasdebates.oireachtas.ie/Debates%20Authoring/Debate sWebPack.nsf/committeebasebyyear/2013?opendocument