The committee agreed that:
1. A major problem facing Ireland is the large number of crisis pregnancies which result in recourse to abortion facilities available in Great Britain.
2. There is an urgent need to take measures to reduce the number of crisis pregnancies.
3. Women in crisis pregnancy must be offered real and positive alternatives to abortion. There is an urgent need to take measures to reduce the rate of abortion.
The committee agreed on a strategy to reduce the number of crisis pregnancies and thereby reduce the rate of abortion. The strategy should offer women in crisis pregnancy real and positive alternatives to abortion and bring healing and comfort to those who have had abortions. The objectives of the strategy should be:
to reduce the number of crisis pregnancies by the provision of preventative services
to reduce the number of women with crisis pregnancies who opt for abortion by offering services which make other options more attractive
to provide post-abortion services consisting of counselling and medical check-ups.
The strategic plan should be implemented through three major divisions with delivery programmes as follows:
Preventative measures
Education programme
Contraceptive programme
Options in crisis pregnancies
Social understanding programme
Counselling/information programme
Single mother programme
Adoption programme
Post-abortion services
Post-abortion counselling programme
Medical check-up programme
A number of the elements of the plan are implemented by various government departments, state bodies and voluntary organisations at present. However, where everyone is responsible no one is responsible. The committee believes that the complexity of the programmes and the co-ordination necessary for their success require a single planning focus.
An agency under the sponsorship of the Department of Health and Children should have responsibility for drawing up a plan to reduce the number of crisis pregnancies, agreeing plan targets, and ensuring the efficiency and effectiveness of the plan. The agency should present an annual report through the Minister for Health and Children to the Houses of the Oireachtas. This will ensure sustained political concern for the work of the agency.
Agency membership should be drawn from the departments and public bodies engaged in delivering elements of the plan - the Department of Health and Children (the sponsoring department), the Department of Education and Science, the Department of Social, Community and Family Affairs, the Department of the Environment and Local Government, the Health Boards, the Women's Health Council and An Bord Uchtala. The agency should have participation by the voluntary organisations involved in providing services for elements of the plan, parents, the teaching profession, the medical profession and a number of technical experts from such areas as sociology, communications and psychology.
The agency should have overall responsibility for the plan and its implementation. It should agree annual targets for each of the programmes and it should monitor progress.
Many of the programmes would be organised by existing state agencies and voluntary bodies. However, the agency would organise certain programmes where required. It would be responsible for ensuring that codes of practice exist for service deliverers, that codes of practice are adhered to, that confidentiality is ensured, that vulnerable clients are protected, that service deliverers have proper training and sufficient resources, that the reach of the programmes is national and that the programmes are accessible to everyone.
It is difficult for the committee to estimate the additional expenditure of the agency. Comparing it to other state-sponsored bodies with such functions as research and promotion, it would be reasonable to estimate costs at five million pounds per annum or fifty million pounds at current values for a period of ten years. This is the minimum period necessary to achieve the objectives of the plan. Programme costs already committed by other state and voluntary bodies would be additional to this expenditure.
The committee also agreed that:
1. The experience with the 1983 and 1992 referendums on abortion showed the general difficulty of formulating referendum proposals on abortion. The ambiguities exposed in the committee's attempts to seek definitions of abortion and associated terms confirm the difficulty of finding terms that will secure certainty of meaning.
2. A constitutional ban on abortion which compromises medical practice or essential treatment to protect the life of the mother is unsafe; it would put the lives of expectant mothers at risk. The committee could not propose such a ban to the Oireachtas. Under the Constitution it is the responsibility of the Oireachtas to formulate, evaluate and agree all proposals for a referendum that are put to the people.
3. Issues of international law are raised in the Green Paper and in the conclusions of the United Nations' Human Rights Committee on Ireland's Second Report under the UN International Covenant on Civil and Political Rights. The Government should prepare a comprehensive public memorandum outlining our precise responsibilities under all relevant international and European Union instruments.
4. The committee heard evidence from the Institute of Obstetricians and Gynaecologists and accepts that in current obstetrical practice rare complications can arise where therapeutic intervention is required at a stage in pregnancy when there will be little or no prospect for the survival of the baby, due to extreme immaturity.
5. To base a legal strategy to ban abortion on an express distinction between direct and indirect abortions is, given the medical evidence, unsafe. Direct and indirect effect is an ethical principle which informs general medical treatment in Ireland. It forms a crucial element in the Medical Council ethical guidelines in this area. It would be unsafe to employ such an ethical distinction in express legal terminology. The distinction between direct and indirect in law might make the law less certain and thereby inhibit doctors from carrying out procedures they currently carry out. The interpretation of the principle by the courts might preclude treatment under current medical practice. Current medical practice as outlined by the Institute of Obstetricians and Gynaecologists envisages the unavoidable death of the baby resulting from treatment essential to protect the life of the mother. The masters of the three maternity hospitals in Dublin would regard the use of the direct/ indirect distinction as restricting in some cases their ability to save the life of the mother in their current practice.
6. Clarity in legal provisions is essential for the guidance of the medical profession. Any legal framework should ensure that doctors can carry out best medical practice necessary to save the life of the mother.
In spite of this degree of consensus the committee found that no option of the seven canvassed in the Green Paper commanded unanimous support. Each of three approaches detailed below were found to command substantial but not majority support in the committee.
The first approach is to concentrate on the plan to reduce the number of crisis pregnancies and the rate of abortion and to leave the legal position unchanged.
The members of the committee advocating this approach believe that the first and most important question to be asked about every policy that addresses the issue of abortion is, does it reduce the number of Irish women who have abortions abroad.
They believe that the plan outlined above in this chapter is the best and most practical measure that could be taken to reduce the number of Irish women who have abortions.
They also believe that the plan, and the estimated IR£50 million required over a ten-year period to implement it, represent the best and most likely way in which real and measurable change for the better can be effected. The plan may need further elaboration, and will need detailed and ongoing scrutiny of its implementation, but is the best way forward.
The implementation of a plan of this scale and complexity will require thought and energy. Those members of the committee supporting this approach believe that there is a high risk that concentration on constitutional and/or legislative measures to address the issue of abortion is likely to divert attention from the plan and therefore reduce the focus on it.
In addition, they contend that constitutional and/or legislative measures will have no actual impact on abortions carried out in Ireland because there are none.
Committee members supporting this approach are committed to the action plan set out in the report. They believe that a major advantage of that commitment to the plan is that it will deliver practical results and assistance to women in need. It does not require any constitutional or legislative change.
Previous experience has shown that campaigns to amend the law on abortion, however well meaning and reasonable their proponents, have been divisive. There is no reason to think that any future amendments will not be equally divisive. In addition, there is no guarantee that at the end of the campaign any proposed amendment will be approved by the people in a referendum.
Even if a suitable wording were drawn up, and then put to the people in a referendum and carried, it would still be open to judicial interpretation, as are all constitutional amendments.
As is known, while the 1983 amendment to the Constitution was carried by a two to one majority, it was subsequently interpreted by the Supreme Court in the X case in 1992 in a manner which would not have been anticipated by a large number of the people who voted for it.
The X case judgment has had no effect on current medical practice in Irish hospitals. No abortions are being carried out in the state because of a threat of suicide and Medical Council Guidelines would suggest that any doctor performing such an abortion could be guilty of professional misconduct.
The members of the committee favouring this approach do not favour legislation as proposed in the second approach. The judgment involved in the second approach of whether a particular threat of suicide is real is a subjective one. Moreover, Irish obstetricians have not acted on either of the two judgments made by the courts and show no disposition to do so in the future.
Members favouring this approach strongly believe that promoting measures to help Irish women choose to have full-term pregnancies rather than go abroad for abortions is the correct and most effective way forward.
Accordingly, as far as any proposals that a referendum to amend the Constitution should take place, they remain to be convinced that such an approach will work out in practice, as those promoting it would wish it to.
An approach similar to the third approach was attempted in 1992 when a proposal submitted by the government to the people was defeated by sixty-five percent to thirty-five percent in a referendum. In any event any such change would have no effect in practice on the rate of abortion for Irish women.
Against that background, while members who support this approach are willing to give a sympathetic hearing with as open a mind as possible to any proposals based on the third approach that may be produced in the Dail and its committees, they remain to be convinced that it would work and are particularly concerned about the diversion of attention and resources from the package of measures envisaged in the IR£50 million action plan.
As yet no constitutional wording in support of the third approach has been provided. The members supporting the first approach are open to be convinced, however, and any detailed proposals and/or wording will be scrutinised by them constructively and with great care.
They believe that in the event of a referendum being held, the public must also be allowed to consider the issues with great care and therefore they regard it as essential if there is any such referendum that it take place on its own, and on a day when nothing else is being put to the people to vote on.
The second approach is to support the plan to reduce the number of crisis pregnancies, accompanied by legislation which will protect medical intervention to safeguard the life of the mother, within the existing constitutional framework.
The starting point in the debate must be the fact that Ireland has a significant abortion rate even though these abortions are not being carried out in Ireland. The issue of abortion in Ireland must be examined with some sense of reality. There is little point in concentrating resources and political energy on a divisive referendum campaign which would have little or no practical effect.
In this context the most significant approach our political system can take is to take measures to reduce the demand for abortion. In that regard the members of the committee who support this approach believe that the proposed plan to reduce demand for abortion will be a major practical contribution to the situation. In this regard this approach has all of the benefits of the first approach.
This approach concurs with the recommendations of the Constitution Review Group chaired by Dr T.K. Whitaker which concluded that legislation within the ambit of the existing constitutional framework was the only practical way forward.
This approach recognises that while of course all legislation must be interpreted by the courts, it is the duty of legislators to decide in the first instance what the law should be, consistent with the Constitution and with European and international law.
This approach ensures that no change is proposed to the existing test for lawful medical procedures, i.e. that the procedures are necessary by reason of a real and substantial threat to the life of the woman (including a risk of self-destruction as found in the X case).
As with the referendum approach, this legislation would restate the prohibition on intentional termination of pregnancy, and would provide a defence along the lines of the above test. Such legislation could introduce appropriate safeguards on availing of the medical procedures concerned. Suicide would continue to be regarded as a possible threat to the life of the woman, as it is at present, and suitable requirements could be specified. Because the legislation would be consistent with existing constitutional rights, unlike the referendum approach, no constitutional amendment is necessary in order to underpin the legislation. This approach therefore provides a more comprehensive guarantee to protect women's lives than does the referendum approach.
This approach has regard to the reality that many thousands of women choose to avail themselves of the relatively liberal regime in the UK, and that there is little sense in embarking on a further constitutional referendum process which will have no impact whatsoever on this reality and will achieve nothing in practical terms. Furthermore there will be a substantial body of opinion opposed to an amendment to remove the existing constitutional right of a suicidal pregnant woman not to be required to continue her pregnancy regardless of the threat to her life.
The proponents of a restrictive referendum appear to have taken an absolutist position that the factual assessment made by the courts in the X case was incorrect and could never in fact occur. This conclusion appears to be insensitive to the possibility - if not probability - of such facts arising in individual cases.
Proponents of the referendum approach suggest that this approach is `unregulatable'. However there is no evidence to support this conclusion. Strong safeguards already exist against improper practices, such as the Medical Council underpinned by a legislative disciplinary framework. Indeed members of the committee who favour this approach would support further legislative conditions as part of a series of safeguards which would be required in any event, whether this approach or the referendum approach were to be pursued. The criticism ignores the fact that the referendum approach itself contemplates lawful abortion.
The referendum approach takes as a starting point the suggestion that there are doubts about psychological measurement of the threat of suicide. However, proponents of the referendum approach go on to draw the unjustified conclusion, for which there is no evidence, that termination of pregnancy can never be required to protect the life of the mother from self-destruction. They then seek to insert this unjustified inference in the Constitution.
The members of the committee who favour the second approach believe that this approach is the only one which comprehensively ensures protection for the right to life of the mother, while at the same time protecting the rights of the unborn.
The third approach is to support the plan to reduce the number of crisis pregnancies, to legislate to protect best medical practice while providing for a prohibition on abortion, and consequently to accommodate such legislation by referendum to amend the Constitution.
The members who support this approach are in full agreement with the action plan, which offers women in crisis pregnancy real and positive alternatives to abortion and contains measures to reduce the rate of abortion.
However, the members who support this approach believe that it is essential to provide constitutional and legislative certainty in regard to current medical practice. They do not accept that the plan addresses the controversial issues raised in the hearings in relation to the interpretation placed upon the Constitution in the X case.
The present legal position involves the Eighth Amendment to the Constitution, a criminal statute of 1861, various judicial interpretations of these texts, and ethical guidelines issued by the Medical Council. It is obvious that these measures are not consistent with each other. Clarity in constitutional and legislative provisions is essential for the protection of expectant mothers and the guidance of the medical profession.
Under this approach legislation should be enacted to protect existing medical practice. The legislation should restate the criminal prohibition on abortion. The legislation should provide that it would be a defence in any prosecution to establish that the actions in respect of which the prosecution was brought were taken by a doctor who was a registered medical practitioner and that the doctor in question had reasonable grounds to believe and did believe in good faith that the actions taken were essential medical treatment to protect the life of the mother. The territorial scope of this defence could be limited to public hospitals. The defence should require the doctor to defend and vindicate both the life of the mother and the unborn as far as practicable. Defences based on social, psychological, or psychiatric grounds (including suicide) would be prohibited.
The effect of such legislation would be to restate in strong terms the prohibition on abortion in Ireland, while at the same time protecting medical practice under tightly controlled legal circumstances. The express wording of the legislation mirrors the correspondence received by the committee from the Institute of Obstetricians and Gynaecologists.
A referendum to amend the Constitution would be necessary to establish a proper constitutional framework for this legislation because the proposed legislation would infringe the X case decision in certain respects. Since the proposal relates to matters of life and death upon which it is clear a substantial number of citizens wish to be consulted the proposed referendum would provide such an opportunity.
Under this approach the Constitution would require amendment to facilitate the proposed legislation. However any constitutional framework must supplement and clarify the current constitutional provisions rather than repeal them. Under this proposal the accompanying legislation removes the ambiguities and uncertainties of current interpretation.
The members who support this approach are unable to support the second approach of enacting legislation within the framework of the X case. In their view the proposed legislation would change the current practice of the medical profession and establish an unregulatable basis for abortion. It should be noted that the Green Paper points out that the current medical ethical guidelines would not be consistent with legislation which provided for the suicide option.
They are also of the view that physical conditions are capable of scientific measurement and therefore permit the type of calculation of risk which enables doctors to predict outcomes and base their decisions about treatment on scientific grounds. However, on the basis of the evidence given to the committee, they are not happy with the quality of psychological measurement where there is a threat of suicide. The members who support this approach believe that their conclusions on the suicide issue are compelling on the basis of what they heard at the hearings.