Woman-Centred Abortion Legislation, You Say?




Pro-choice rally last Summer (top); Law lecturer Mairéad Enright (above)

Are you drunk?

A piece of proposed legislation has been created by a group of feminist academic lawyers in the event of a repeal of the 8th Amendment.

It was originally drafted for Labour Women.

However, it has not been adopted by Labour Women.

One of the authors, lecturer in law at Kent Law School, Mairéad Enright writes:

In drafting, we were guided by four principles. First, and perhaps most importantly, we were determined to design a law that would regulate abortion in Ireland by primary reference to the bodily integrity, welfare, agency, autonomy and self-determination of pregnant women while still recognising a public interest in preserving foetal life where possible, with the pregnant woman’s consent.

By achieving this, we hoped to express a legislative commitment to no longer viewing a pregnant woman’s body as the mechanism by which the State fulfils its perceived responsibilities towards the foetus, but rather as the body of a woman who maintains her agency and her constitutional rights notwithstanding her pregnancy.

In that sense, we proposed a piece of law, which would aim to be transformative, to a significant degree, of the prevailing discourse around Irish abortion law. The point is not that we think foetal life is unimportant. Rather, we wanted to show what woman-centred abortion legislation would look like in an Irish context. To that end, we inserted key Guiding Principles in Head 3 that should be applied whenever the legislation is being interpreted or applied. These radically shift the approach to abortion from that the status quo. Head 3 provides:

(1) Access to abortion is guaranteed in accordance with the provisions of this Act.

(2) In making any decision under the Act, or in providing medical care and services under this Act, the Heads shall be interpreted in the manner most favourable to achieving positive health outcomes for the pregnant woman, and to the protection of her rights, including the rights to:

a. life;
b. freedom from torture, cruel, inhuman and degrading treatment;
c. bodily integrity and autonomy;
d. self-determination, including the right to informed decision-making in relation to medical treatment;
e. private and family life, including the right to privacy;
f. health, including the right of access to appropriate health-care in a safe, prompt and timely fashion, and the right of access to healthcare information.

(3) Access to abortion services will not be impeded because of race, sex, religion, national, ethnic or social origin, disability, HIV status, marital or family status, immigration status, sexual orientation, age, birth or other social status.

(4) Sustaining embryonic and foetal life in pregnancy is an important social role, which should be voluntary and consensual.

That said, this is not pro-choice legislation in the ‘free safe and legal’ mould, not because the authors are not pro-choice (we are), but because we were drafting for the Labour Party, which is not, as yet, committed to providing free, safe and legal abortion after repeal of the 8th Amendment. (The explanatory notes to the draft legislation highlight points at which we feel the legislation may be too conservative).

Bearing in mind the restrictions entailed in drafting abortion legislation for a political party in Ireland at the time, we strayed beyond mainstream political consensus to the extent that we felt European and international human rights law clearly enabled us to do. As such, we suggest that our draft law may represent a useful yardstick against which to measure later legislative proposals by a future Irish government.

Second, the proposed law designates grounds for abortion which, to a significant degree, challenge the mainstream consensus on what a new Irish abortion law should contain. Politicians advocating for reform have tended to accept that a new law should permit abortion not only on grounds of risk to the life of the woman, but on the grounds that the pregnancy has come about through incest or rape, or that the foetus is incapable of surviving outside the womb.

There is also some agreement that abortion should be available on a limited ‘health’ ground – certainly one which would reassure doctors that they could act to end the pregnancy of a seriously ill woman whose life is not at risk. Our proposed grounds go somewhat beyond such mainstream consensus.

In particular: we do not provide for a separate rape ground, in order to avoid any suggestion that a woman should be required to prove that she has been raped or to participate in any criminal process; we provide for two health grounds: a simple one applicable in early pregnancy, and a requirement to prove severe or disabling damage to health in later pregnancy and we do not confine the foetal anomaly ground to situations in which the foetus is certain to die within the womb if the pregnancy continues.

The proposed law aims to enshrine an approach to medical practice that replaces pro-natalist paternalism with a welfare orientation, seeing the pregnant woman as the patient and abortion as a medical procedure. This is intended not only to nudge a reorientation of Irish maternal medical practice, but also to empower medics to follow the course of medical treatment that they believe is best for their primary patient (i.e. the pregnant woman) as determined by doctor and patient together.

We were concerned that the legislation should ensure — to the extent possible — that abortion is actually available in practice, while also respecting the deeply held convictions of members of the medical profession and of the public in respect of the status of the ‘unborn’. This was of fundamental importance. It is quite clear that the legal availability of abortion can be frustrated by harassment, unregulated conscientious objection, and failure to provide services.

In order to try to achieve this we focused on three areas: conscientious objection, provision of services and protection of locations in which services are provided, and review of negative decisions as to the availability of abortion in any particular case.

The authors of the proposed legislation were: Lecturer in law at Kent Law School Mairéad Enright; Professor of law at the Durham Law School, Fiona de Londras; senior lecturer at Kent Law School, Vicky Conway; senior law lecturer at University College Cork, Mary Donnelly; senior lecturer in medical law at Queen Mary University of London Ruth Fletcher, barrister Natalie McDonnell; Birmingham Fellow at Birmingham Law School, Sheelagh McGuinness; law lecturer at UCC Claire Murray; law lecturer at Kent Law School, Sinead Ring and lecturer in ethics at Keele University, Dr Sorcha Uí Chonnachtaigh.

Read the proposed legislation in full here

An IHRL-compliant post-8th Amendment Abortion Law for Ireland. #repealthe8th (Human Rights In Ireland)

31 thoughts on “Woman-Centred Abortion Legislation, You Say?

  1. Fluter bad

    You seriously expect your readers to even get a quarter way through this? You must be drunk

    1. Froodiw

      Am about to start rereading it. Will probably go again a few more times. Would actually join the party run for election for Labour if it meant I could get this on the table.

  2. nellyb

    Don’t repeal, insert criminal and financial responsibilities for the man into the 08th as well as compulsory pursuit by gardai for absconders. For true balance. The men will then repeal before xmas.

  3. redzer

    The authors of this legislation are brilliant legal academics – but they don’t understand how politics works.

    The political reality at present is that Labour, while supporting this legislation, will not be able to support it publically at the moment. This is because they have to persuade FG and FF to a lesser extent who are far larger parties, not just in the Dail but across the country, to firstly even support repeal of the 8th Amendment whcih they do not at the moment – supporting such a progressive piece of legislation will simply turn the other parties, who are so conservative on abortion, away from even looking at repeal of the 8th Amendment. And their support is required, because they dominate politics – without FG and again FF to a lesser extent there is zero chance of any sort of legislation on abortion being passed.

    It’s unpleasant, but that is the political reality.

    1. donkey_kong

      as academics (the brilliant is debatable) they live outside society similar to the council of the learned that briefly ruled Springfield and have no understanding of issues on the ground.

    2. Joe the Lion

      Total bullshit – get off the stage
      After the next election none of these alleged Leviathans will come within an asses roar of the prized overall “majority”. An emboldened Labour can easily lead this horse to water

      1. redzer

        They don’t need an overall majority – they just have to be larger than Labour – and they will.
        I agree that Labour can persuade them, but they need to go slowly on it – supporting this legislation before it gets support from conservatives to repeal the 8th amendment will just give conservatives a chance to reject the whole project by saying Labour are extremists and want abortion on demand, at 36 weeks etc etc.

        Look at the process on the protection of human life in pregnancy legislation and how long it took, with committees, debates, compromises. As long as conservative parties like FF and FG are bigger than Labour, this is how it will be.

        It’s shit, but is politics in Ireland and it will be until Labour, SF or the PBP or AAA are bigger than FF or FG.

        1. Lan

          “As long as conservative parties like FF and FG are bigger than Labour, this is how it will be”

          I love how people talk about how conservative FG are yet they were the ones to bite the bullet and finally deal with the X case. I’m no supporter but after hearing what some of their TDs had thrown at them over it I have to at least give them their dues for dealing with a thorny political issue (and losing some support) rather than pass the buck like FF.
          The notion that repealing would be difficult just because of FG is absurd. Like it or not there are still a sizeable number of people/voters against freely available abortion. I’m not talking your Pro-Life, Alive reading ultra-conservatives here either. Just normal people with a view different to yours.
          If Labour or SF were leading the government I doubt we’d see them make good on their promises for fear of the backlash.

  4. rotide

    Seems eminently sensible.

    The absolute best part of it is removing rape from the equation totally. I guess there might be slight concerns about “we do not confine the foetal anomaly ground to situations in which the foetus is certain to die within the womb if the pregnancy continues” but the rest of it is so reasonable and sensible, i’d imagine the details of that are as well.

  5. Paolo

    One of the problems with all of this is that people try to ignore science and grants rights (of sorts) to the foetus based on an arbitrary legal threshold. There is no scientific basis for denying rights to a foetus. Making a legal decision that foetuses 1 second prior to birth are materially different to those 1 second after birth is not based on science. The issue then cascades down to foetuses of 20 to 24 weeks and since each individual foetus develops at different rates, setting arbitrary cutoff dates for abortions also has no scientific basis.

    1. Paolo

      Incidentally, I’m in favour of abortion choice. I just don’t think the article above is the way to about it. Base it on science, not legal jargon.

      1. Paolo

        What is the material difference to the foetus if he/she is killed 1 second before birth or 1 second after? There is no physiological difference.

        All I’m saying is that abortion choice should be available but the limits and restrictions should be based on recognising the actual foetus(es) in question rather than arbitrary thresholds decided by lawyers years before. In the UK, when it comes to fatal foetal abnormality there is a detailed analysis done of the foetus and a science-based decision is reached but when it comes to abortions nearing the 24 weeks, it is not science-based, it is merely an arbitrary legal gate based on the estimated development of the foetus.

        1. Kilcock Swayze

          You make a reasonable and sensible point.
          The nature of the fetus could be assessed at ultrasound and abortion could be allowed or denied based on fetal characteristics. However the shorthand would still be twelve weeks.

          In practical terms the framework here is very sensible. In political terms I believe that one could easily pass choice to ten weeks and defeat choice to fourteen weeks just by holding up photographs of the Fetus. However I think that the cultural marker of twelve weeks means that twelve week abortion may be achievable.

          1. scottser

            i wouldn’t have any faith in our health service that they can accumulate, assess and decide upon that information within 12 weeks.

  6. Kilcock Swayze

    This isn’t proposed legislation. This is a suggested framework on what legislation should accomplish.
    The practical suggestions de facto choice to twelve weeks (at a minimum and maximum) and health based access after that are reasonable and what is more might well pass.

    However the moral/legal framework suggested (in particular the refusal to admit that the Fetus has an independent right to life that does not derive from the mother’s wishes) make the practical achievement of choice to twelve weeks and termination for medical reasons subsequently less likely.

    I think that the choice of twelve weeks is an interesting one given the Irish practise of not informing anyone other than the father, one’s own mother and perhaps one’s older sister before three months.

    1. Anne, Anne, Anne Anne. ne: Anne

      Dear Kilcock Swayze,
      do you by any chance happen to have a brother called Patrick?
      You sound so Irish. it’s uncanny.

      You really seem to have your finger on the pulse, you understand what matters most to the Irish nation, babies, but most of all, you care…

      Of all the people I’ve ever come across called Kilcock, you are the nicest.
      Thank you for promoting expressing your views.

  7. Fluter bad

    If you kill a pregnant woman you get charged with double homicide. Weird, isn’t it?

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