In recent days bishops of Ireland have sent the following briefing note to deputies and senators on the Protection of Life During Pregnancy Bill 2013. The briefing note highlights flaws in the abortion bill which is currently being debated in Oireachtas Éireann and explains that, if the abortion bill is enacted, it:
will fundamentally alter the culture and practice of medical care in Ireland; accepts the premise that abortion is an appropriate response to suicidal ideation; and,creates serious moral, legal and constitutional conflicts in the area of freedom of conscience and religious belief.
1. This Bill will fundamentally alter the culture and practice of medical care in Ireland. It provides a wide and at times subjective interpretation of the risk to the life of the mother, by which the life of an unborn child can be ended. This is clear because:
a. In the assessment of ‘a real and substantial’ risk to the life of the mother, whether arising from a medical situation or a threat of suicide, the explanatory memorandum to the Bill is clear that, ‘this risk does not need to be immediate nor inevitable’. This means that a risk which is ‘remote’ or ‘avoidable’ could trigger the death of an innocent and voiceless child in the womb;
b. At the same time, the assessment of risk is to be based on ‘reasonable opinion’, which in the words of the notes to the Bill, ‘means an opinion formed by the practitioner or committee, as the case may be, in good faith which has regard to the need to preserve unborn human life as far as practicable’. The phrase ‘in good faith’ is subject to wide interpretation;
c. In addition, Sections 58 and 59 of the Offences Against the Person Act 1861 have been repealed, thereby giving doctors latitude to terminate pregnancy in a wider range of circumstances than heretofore. While the Bill makes it an offence to ‘intentionally destroy human life’, it explicitly excludes the possibility of such an offence for all terminations carried out under the Bill;
d. The Bill provides mechanisms of appeal for a mother to vindicate her right to life. However, it provides no mechanism of defence or appeal for the unborn. The Government claims vindication of the right to life of the unborn is provided by the legislative obligation on medical personnel to ‘have regard to’ the right to life of the unborn ‘as far as is practicable’. However, the Heads of Bill are clear that: “This emphasis on preserving unborn human life as far as practicable governs the actual medical procedure – the termination of pregnancy only and not whether there is a real and substantial risk to the life of the mother.” In other words, it applies only to the procedure carried out following the assessment of the risk to the life of the mother but not to the assessment of risk itself, upon which the decision to end the life of the unborn will be made.
Taken together, these aspects of the Bill mean that in practice the right to life of the unborn child is no longer treated as equal to that of the mother. This represents a fundamental shift in current medical culture and practice in Irish hospitals, which to date have provided some of the safest places in the world for a mother and her unborn child during pregnancy precisely because they were treated as two patients with an equal right to life. The failure of this Bill to adequately vindicate the equal right to life of the unborn, in so many respects, provides grounds for a viable challenge to the Constitutionality of the Bill itself and that this ought to be pursued.
2. The Bill accepts the premise that abortion is an appropriate response to suicidal ideation. This is contrary to substantial medical evidence.
a. The direct and intentional ending of the life of an unborn child, at any stage of pregnancy from the moment of conception, is never morally acceptable. What will happen if the unborn child is close to viability, say, at twenty two weeks? Would termination be postponed to give the child a greater chance of survival outside the womb? Who will advocate for the rights of the child in this situation? The Bill is silent on these matters.
b. Furthermore, where the unborn child is deemed viable, the Bill envisages the child being delivered prematurely in response to the suicidal ideation of the mother. Such premature delivery runs a high risk of serious and permanent damage to the health of the child. We are told that the child will then be placed into State care. How can such a foreseeable damaging and high risk medical procedure be reconciled with the Constitutional duty on the State (Article 42A) to ensure that in all decisions the welfare of the child shall be ‘the paramount consideration’ and with the provisions of Part 15 of the Criminal Justice Act 2006 on the Reckless Endangerment of Children?
c. A further very serious confusion exists in relation to the scope for “termination” in response to the risk of suicide. According to the interpretive notes to the Heads of the Bill: ‘In circumstances where the unborn may be potentially viable outside the womb, doctors must make all efforts to sustain its life after delivery. However, that requirement does not go so far as to oblige a medical practitioner to disregard a real and substantial risk to the life of the woman on the basis that it will result in the death of the unborn.’ It is legally possible to understand this note to mean that where the child is ‘potentially viable outside the womb’, but there is a real and substantial risk to the life of the mother based on suicidal ideation, a doctor may directly and intentionally intervene in a manner that ‘will result in the death of the [viable] unborn’. There are no time limits on such an intervention
3. The Bill also creates a number of serious moral, legal and Constitutional conflicts in the area of freedom of conscience and religious belief, notably:
a. The Bill provides for conscientious objection by ‘any medical practitioner, nurse or midwife’ only. It excludes others who may be obliged to co-operate in providing abortion services against their conscience or religious belief. This is in contrast to the wording of the proposed Protection of Human Life in Pregnancy Bill 2001, which provided for conscientious objection by ‘any person’ carrying out or assisting in an abortion. The operation of this clause is also unacceptable because it involves a form of co-operation in evil by obliging those who conscientiously object to knowingly put the patient in to the care of medical personnel who will carry out an abortion. In effect, therefore, medical personnel are being given no choice but to cooperate in an abortion. This is in contrast to the practice in many other countries which ask only that the patient be handed over to the care of other medical personnel. Limiting the scope of conscientious objection in this way is potentially in conflict with Article 44.2.3 of the Constitution, which states that: “The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status”, with the general direction of legal interpretation of Article 9 of the European Convention on Human Rights and with recent UK based cases such as Doogan & Anor v NHS Greater Glasgow & Clyde Health Board  ScotCS CSIH 36.
b. Article 44.2.3 also raises important questions of principle about the application of the Party Whip system to oblige members of the Oireachtas to vote in favour of this legislation, against their religious conscience. It may even open the possibility of a Constitutional challenge to the legislation itself on the basis of an un-constitutional legislative process.
c. The obligation on ‘appropriate institutions’ identified by the Minister to provide abortion services may be in conflict with existing legal arrangements and, in some cases with Article 44.2.5 of the Constitution, which states that: “Every religious denomination shall have the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions for religious or charitable purposes”.
A final question: Was it possible to provide an adequate response to the European Court by means of justiciable professional guidelines which do not involve legislating for the direct and intentional killing of the unborn?
The questions posed above are substantial. They reflect the seriousness of the issues at stake.
Legislators should be free to exercise their conscience on this fundamental moral issue, in accordance with the principles of a free and democratic society and their express right as citizens under Article 44.2.3 of the Constitution. No one should entrust the decisions of their conscience to another on issues like this which are, literally, matters of life and death.