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Expert Group Report makes the case for legislation even more compelling – Ó Caoláin

6 December, 2012 - by Caoimhghín Ó Caoláin TD

Speaking in the Dáil this evening on the publication of the Export Group Report on the Judgement in A, B & C vs Ireland Sinn Féin Health and Children spokesperson Caoimhghín Ó Caoláin’s said the case for legislation is now compelling and the report makes it even more so.

The following is Dáil is Deputy Ó Caoláin’s full speech;

Deputy Ó Caoláin said;

“The publication of the Report of the Expert Group on the Judgment in A, B & C vs Ireland should mark the final stage before legislation in line with the X case judgement is initiated, debated and enacted by the Oireachtas.

“In time to come the publication of this report will always be associated with the tragic death of Savita Halappanavar, a tragedy that once more placed the issue of abortion high on the political agenda and in public consciousness. The courage of her husband Praveen and her family in speaking out should be commended. We offer them our continuing condolences.
Coincidence or not, the publication of the report in the immediate aftermath of the tragic death in Galway University Hospital, has concentrated minds on the issue and this concentration needs to be maintained so that appropriate action will follow.

“The public consideration by Irish society of the very difficult and fraught issue of abortion has been punctuated by tragedies. From the X case in 1992 to Savita Halappanavar in 2012 we have seen women in a variety of very difficult situations bringing legal challenges, all of them cited in this Report. And these cases represent only the tip of the iceberg, the visible manifestation of the experiences of countless women over the last 20 years and more.

“The authors are to be commended for a very clear report that gives an overview of the current legal provisions on the termination of pregnancy in this State and the historical background to the legal developments regarding abortion that have taken place over the last three decades.

“In a cogent manner the report sets out principles for the implementation of the judgment of the European Court of Human Rights in the A, B and C vs Ireland case. It sets out proposed procedural options for determining if and when termination is lawful and options for decision-making by doctors and an appeals process. Finally, and crucially, it sets out options for how all this should be implemented in law.

“The Judgment of the European Court of Human Rights confirmed that there is an imperative to put into legal effect the judgment of the Supreme Court in the X case. The European Court of Human Rights found that there was no accessible and effective procedure to enable Ms C to establish whether she qualified for a lawful termination of pregnancy in accordance with Irish law.

“Why is this so? Because, as the European Court of Human Rights accepted, Article 40.3.3 of the Constitution, as interpreted by the Supreme Court in the X case, provides that it is lawful to terminate a pregnancy in this State if it is established 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 a termination of the pregnancy.

“Therefore this State is in breach of the European Convention on Human Rights in failing to give effect to the right identified by the Supreme Court in the X case.

“In setting out the current legal position the Report reminds us of what have been described as the chilling words and chilling effect of the 1861 Offences Against the Person Act and its blanket criminalisation of all terminations of pregnancy. Anyone responsible for a termination under this Act is “guilty of a felony and being convicted thereof shall be liable to be kept in penal servitude for life”.

“The Report recites the sorry saga of the 1983 amendment and the legal battle that had to be fought to establish the right to travel and the right to information, culminating in referendums and legislation which provide for those rights.

“It is important to recall, as the Report does, that ‘X’ was a 14 year old girl, pregnant as a result of rape, and put through the additional trauma of a High Court injunction to restrain her from leaving the State for a termination of the pregnancy. It is important also to recall that the Supreme Court judged in the X case that if it were established as a matter of probability, that there was a real and substantial risk to the life, as distinct from the health, of the mother and that this real and substantial risk could only be averted by the termination of the pregnancy, such a termination is lawful. Crucially also, the Court found that the threat of suicide constituted a real and substantial risk to the life of the mother.

“The immediate result of that case was the lifting of the injunction so the young girl could travel abroad. I believe that any other outcome would have outraged the vast majority of people in this country. It would have led to a regime where this State was effectively an internment camp for pregnant women, release being possible only if they could prove they were not travelling abroad to terminate their pregnancy.

“The 1992 referendum followed, allowing for the right to travel and to information. In 1992 and again in 2001, the electorate in referendums, rejected proposals to exclude the risk of suicide as a ground for lawful termination.

“Thus, over a decade ago, and long before the A,B and C case was initiated, the clear obligation for the Oireachtas to legislate in line with the X case judgment, including the threat of suicide as a real and substantial risk to the life of the mother, was confirmed.

“As well as the referendums there was the 1996 Constitution Review Group, the 1999 Green Paper on Abortion and the All-Party Oireachtas Committee on Abortion which reported in 2000. Following the defeat of the 2001 referendum there was legislative inaction as successive Governments again failed to face up to their responsibilities.

“The A,B and C case begun in 2005 with judgement delivered in December 2010, effectively reaffirmed the Supreme Court judgment in the X case.

“The absence of legislative implementation of these judgments has created very dangerous grey areas in which, as we now know all too well, women can die. The European Court of Human Rights judged that there is a “striking discordance between the theoretical right to lawful abortion in Ireland on grounds of a relevant risk to a woman’s life and the reality of its practical implementation”.

“What real dangers that creates was shown in the case of Miss D in 2007. In that case the HSE prevented a 17-year-old girl in its care from leaving the State to have an abortion and had even notified the Gardai that she was not permitted to leave. The court ruled that the actions of the HSE were without foundation in law and the court vindicated her right to travel. The point here is that when a young woman could face such denial of her rights when the law was very clear, and even affirmed in a referendum, how much more danger must women face when they are legally entitled to a termination, in line with the X case judgment, but in the absence of the required legislation.

“This is stated explicitly in the Report:
‘Indeed, while the constitutional provisions in Article 40.3.3 (as interpreted by the Supreme Court in the X case) qualified sections 58 and 59 of the 1861 Act, those sections have never been amended, so that arguably, they remain in force, with their absolute prohibition on abortion and associated serious criminal offences, thereby contributing to the lack of certainty for a woman seeking a lawful abortion in Ireland.’

“The case for legislation now is compelling and this report makes it even more so.

“The five obligations of the State as set out in the Report are: to provide effective and accessible procedures to establish a woman’s right to an abortion as well as access to such treatment; to establish criteria or procedures in legislation or otherwise for measuring or determining the risk to her life; to provide precision as to the criteria by which a doctor is to assess that risk; to set up an efficient independent review and appeals system; and to address sections 58 and 59 of the Offences Against the Person Act 1861.

“The four principles for the implementation of the European court judgement are: that the entitlement to have the right to a lawful termination of pregnancy ascertained should be established; the State’s obligations under Article 40.3.3. should be reflected in the options for implementation; termination should be considered a medical treatment regardless of whether the risk to the life of the woman arises on physical or mental health grounds; it will always be a matter for the patient to decide if she wishes to proceed with a termination following a decision that it is clinically appropriate.

“We in Sinn Féin believe that those formulations of the State’s obligations and of principles for implementation are sound. We have long held that legislation in line with the X case judgment is necessary. The challenge now before the Oireachtas, and in particular this Government, is to summon the political will to legislate and to legislate in the best possible manner.

“This brings us to the core of the Report.

“Chapter 6 addresses the procedures to be applied for determining entitlement and access to termination of pregnancy. It notes that where there is a real and substantial risk to the life of the mother it is not necessary for medical practitioners to be of the opinion that the risk is inevitable or immediate.

“The options for procedures in terms of numbers and types of doctors involved in these decisions and the form of review process to be adopted need very careful consideration. Two things are essential. Firstly, the woman must be at the centre of the process and her voice must be heard and heeded at all times. Secondly, the process must not be so cumbersome and complex that vital time is lost, thus creating further dangers. For this reason we would advocate the medical model of review rather than the legal model.

“It is clear from Chapter 7 of the Report that regulations alone will not suffice and that primary legislation is essential. Likewise legislation alone will not likely be sufficient to meet the requirements. A combination of robust primary legislation and regulations, in careful balance, would seem to be the optimum approach.

“It is a pity that the Review Group was not mandated to produce recommendations rather than options. This forces us to read between the lines, especially in Chapter 7 which I have cited. I would urge that the Review Group members be permitted to come before the Oireachtas Health & Children Committee to address us and to answer questions.

“We must legislate. That is the task that this Oireachtas must now face up to. All Teachtaí Dála have an obligation to address this need and to step up to the mark as legislators. As I have stated previously, there is no selfish political advantage in this for any party.

“This is not 1983. It is 2012. We have to approach this with compassion and understanding and respect, conscious of strong and sincere views held on all sides. I believe that now, more than ever, the majority of people know the complexity of this issue and that simple black and white solutions do not exist.”


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