The Protection of Life during Pregnancy Bill 2013 – General Scheme.

We asked a legal expert.

What does it do?

The Bill sets out the circumstances in which abortion can be allowed in this jurisdiction. It also criminalises any abortion carried out other than in accordance with these terms.

What are the circumstances in which abortion is permissible under the Bill?

The Bill permits abortion in three circumstances:
(i) Real and substantial risk of loss of life other than by way of self-destruction (Head 2)
(ii) Immediate risk of loss of life other than from self-destruction (Head 3)
(iii) Real and substantial risk of loss of life from self-destruction (Head 4)

Could you go through each of them individually?

Head 2 of the Bill permits abortion where there is a real and substantial risk of loss of life other than by way of self-destruction. Both an obstetrician/gynaecologist employed at the public obstetric unit where the termination is to take place and a medical practitioner registered as a relevant specialist must certify in good faith that there is
(a) a real and substantial risk of loss of the pregnant woman’s life other than by way of self-destruction
and
(b) that it is their reasonable opinion that this risk can be avoided only by way of an abortion.

Head 4 of the Bill permits abortion where there is a real and substantial risk of loss of life from self-destruction. Again there must be prior certification of a real and substantial risk of loss of life and a reasonable opinion that the risk can be avoided only by way of an abortion. However in this case the certification must be provided by an obstetrician/gynaecologist employed at the public obstetric unit in which the abortion is to be carried out and two psychiatrists employed at centre registered by the Mental Health Commission, at least one of whom must be attached to the institution in which that obstetric unit is situate.

Where certification under these heads has been refused, the mother or another person acting on her behalf and with her consent may apply in writing to the HSE for review of the decision not to certify. The HSE must establish and convene a review panel composed in accordance with the provisions of the Act within 7 days of receiving the application and the actual review must take place within 7 days thereafter (14 days in total).

Head 3 of the Bill also permits uncertified abortion by any medical practitioner who believes in good faith that there is an immediate risk of loss of the pregnant woman’s life other than by way of self-destruction and that an abortion is immediately necessary to prevent this. An abortion under Head 3 may take place anywhere.

The concepts of ‘real and substantial risk of loss of life’ and ‘reasonable opinion that the risk can be avoided only by way of abortion’ seem pretty important under the Bill. Is there any attempt to define them?

The term ‘real and substantial risk’ in Heads 2 and 4 (which derives from the ‘X’ case interpretation of the constitutional provisions on the right to life) remains undefined by the Bill and its precise meaning will almost certainly be the subject of litigation in the future.

As regards the reasonable opinion that the abortion is necessary to prevent loss of life, which must also be present under Heads 2 and 4 in addition to real and substantial risk, this is defined by the Act as an opinion formed in good faith and having regard to protect and preserve unborn human life where possible. Again, this is likely to generate litigation.

In light of the above, would the Bill, if in force at the time, have made a difference in Savita’s case?

Quite possibly not. Lack of definition of ‘real and substantial risk’ seems to have been a large part of the problem in that case. As mentioned, the Bill does not clarify this in any way shape or form. The question as to whether or not the risk could be avoided by any other means would also arise.

Are there any circumstances in which abortion can be carried out without the ‘real and substantial risk’ and ‘reasonable opinion’ requirements being satisfied?

Yes. The medical emergency ground in Head 3 not only relaxes the certification requirements, but does not require ‘real and substantial risk’ or ‘reasonable opinion’. All it requires is immediate risk of loss of life and that an abortion is immediately necessary to prevent this. Drafting this ground must have been tricky as there is no real constitutional discussion of the need for emergency action, though a common sense interpretation of the ‘X’ case would indicate that provision for emergency abortions would have to exist. But it is not clear that Head 3, if then in force, would have been satisfied with regard to Savita.

Are there any circumstances in which an abortion can be carried out not involving risk of loss of life? For example where there is long-term risk to the health of the mother?

Not unless that long-term risk to health can be said to cause ‘a real and substantial risk of loss of life’ within the meaning of Heads 2 or 4. It should be noted that, unlike Head 3 (medical emergency) there is no requirement in Heads 2 or 4 that the risk of loss of life be immediate, just real and substantial. There is room for argument that a risk to long-term health, which also carries with it a real and substantial risk of early loss of life, should qualify for the purposes of Heads 2 and 4. However long-term incapacitation not likely to shorten life (e.g. loss of a leg) is definitely not a ground for abortion under the Bill.

Where an abortion is carried out other than in accordance with the terms of the Bill, can the mother be prosecuted?

If she consented to the abortion, yes. Head 19 makes being a party to an abortion a criminal offence with potential imprisonment for up to 14 years.

How useful is the Bill?

Difficult to know. The lack of definition of key concepts may present a problem in terms of its operation in practice. Head 3 (Medical emergency) is probably the most interesting ground, albeit the one most likely to be constitutionally challenged.

Such constitutional challenge could even occur before the Bill becomes law. Article 26 of the Constitution permits referral by the President of Bills to the Supreme Court where concern arises regarding their constitutionality. The difficulty with such referral is that, if a Bill is held constitutional when referred under Article 26, it can never be challenged again, possibly not even if the relevant Constitutional provisions have been subsequently changed by referendum. This makes the decision as to whether or not to refer this Bill a very difficult one.

Overall view?

The Bill is quite well drafted and in line with the legal authorities. The problem is that these legal authorities do not answer all the questions which arise. The drafters of the Bill accordingly walk a tightrope in trying to legislate for the practical application of quite general constitutional concepts.

It’s hard to avoid thinking that what is needed is not a Bill, but a referendum…

The Protection of Life during Pregnancy Bill 2013 – General Scheme.