Overview

The Joint Oireachtas Committee on the 8th Amendment published its recommendations in December 2017. The key outcomes of their vote are summarised in our previous blogpost. Here, we look at the transcripts of the Committee proceedings to pick out the key reasons for its recommendations.

The Committee’s key recommendations are:

• removing Article 40.3.3 (the 8th Amendment) from the Constitution
• decriminalising abortion;
• allowing abortion without restriction as to reason up to 12 weeks;
• allowing abortion with gestational limits set by medical best practice for reasons of fatal foetal abnormality or risk to health, including mental health, of the woman.

Witnesses invited to present evidence to the Committee were chosen for their expertise in topics related to the 8th Amendment, such as medical law or reproductive healthcare.

Many of the Committee’s decisions reflect the witnesses’  evidence, and reiterate what pro-choice campaigners have been saying for years: it’s time to let each pregnant person make decisions about their pregnancy, and it’s time to Repeal the 8th Amendment.

Key findings of the expert witness evidence

1) The 8th Amendment has not reduced the number of abortions Irish people have.

In fact, it has only kept these procedures unsafe. Irish people can only access abortion by going outside our healthcare system – to travel abroad or to illegally import unregulated medication online. Both of these pathways fall far short of acceptable care standards.

“Our information shows that rates of abortion do not vary owing to the degree of restrictiveness of the law. The statistics show that the level of safety changes as the restrictiveness of the law increases. I would not say Ireland is immune from this.”

 

– Dr. Bela Ganatra, World Health Organisation

 

“Whether a woman travels abroad for legal services or has an illegal abortion in Ireland, she must leave the mainstream healthcare service. Her experience will not meet international healthcare standards.”

 

– Dr Caitriona Henchion, Irish Family Planning Association

At least 3,265 people travelled from Ireland to England and Wales in 2016 for abortion care; more travelled to other countries. Travelling abroad for an abortion is complicated by financial and logistical difficulties.

People who decide to travel usually opt for a surgical abortion because these are quicker than medical abortions. These people often delay travelling because they need to save up or borrow money for the trip and procedure, meaning they have an abortion later than they would have otherwise. Doctors in Ireland also cannot directly refer patients to clinics providing abortion care abroad – which is challenging for many patients including those who face language barriers, have literacy issues, or have complex medical conditions.

People in Ireland access illegal (but largely safe) abortion pills online. 1,748 people contacted Women on Web to import abortion pills to Ireland in 2016; more contacted other services. They risk a 14-year prison sentence, as does anyone who helps them. People who experience complications may avoid seeking medical care out of fear of prosecution.

Deputy Bernard Durkan (Fine Gael, voted for repeal), commented:

“I am not in favour of abortion but I recognise that in our modern society there are reasons, and a need, for some change to accommodate the evolution of our society. Furthermore, we have an obligation to do whatever we can do to facilitate the people in coming to those conclusions.”

2) The 8th Amendment constrains medical decision-making in Ireland

Doctors must wait until a pregnant woman is critically ill before they can provide an abortion to save her life, even though this is against medical best practice as a patient’s condition can deteriorate rapidly and unexpectedly in pregnancy.  

“Article 40.3.3. gives rise to significant difficulties for doctors practising in Ireland and has caused grave harm to women, including death.”

 

– Dr Peter Boylan, former Master of the National Maternity Hospital

 

“The [Protection of Life During Pregnancy] Act assumes we can accurately predict the risk of dying. Waiting for a woman to be sufficiently ill in order that she is perceived to be at risk of dying is potentially dangerous.”

 

– Dr Rhona Mahony, Master of the National Maternity Hospital

Senator Paul Gavan (Sinn Féin, voted for repeal), commented:

“Having listened to the evidence over the past number of weeks, there are two possibilities. One – the outlandish possibility – is that there is a giant medical conspiracy and that all these people got together somehow in a darkened room and decided to unleash abortion on us. The other is that these medical professionals, whose jobs are to care for women and babies, are telling us the truth, which is that there is a major problem with this amendment.”

3) The Constitution is not designed for the complexities of healthcare regulation

Medical legislation, such as for abortion care, needs to be able to change to reflect current best practice standards, to let doctors make clinical decisions with their patients without fear of prosecution, and to ensure that services are accessible.

“Constitutions should enable the organs of the state to govern effectively, i.e. to respond to the real governance needs in society, which shift and change over time… Article 40.3.3 does not allow for a legislative structure that meets the needs of the thousands of women in Ireland who every year access abortion outside of the healthcare structures in this state.”

 

–  Professor Fiona de Londras, Chair in Global Legal Studies, University of Birmingham.

 

“What we as doctors require is clinical flexibility in order that women and their doctors can make appropriate decisions in the very difficult circumstances that arise from complications in pregnancy.”

 

– Dr Rhona Mahony, Master of the National Maternity Hospital.

Legal experts discussed several options, including repealing the 8th Amendment and replacing it with a provision listing specific grounds for legal abortion, as well as repealing the 8th Amendment and replacing it with a statement giving sole regulatory responsibility to the Oireachtas.

Most Committee members concluded that these options would be cumbersome, unusual, and raise concerns regarding division of power between the Oireachtas and the court system; i.e. that a statement giving exclusive power to the Oireachtas over abortion care may prohibit anyone from bringing a court case against legislation.

Conclusions

From listening to medical and legal experts, the Committee concluded that removing the 8th Amendment from the Constitution altogether is the most effective way to resolve the many challenges the 8th Amendment presents to the safety, dignity, and well-being of pregnant people in Ireland.

Repeal of the 8th Amendment is necessary to allow provision of safe abortion care so people do not have to travel or order pills online, to give doctors flexibility in their care of pregnant patients, and to keep inappropriate and unworkable healthcare legislation out of  the Constitution.

ARC recognises that many members of the Committee changed their positions over the course of 33 sessions, lasting 12 weeks, including approximately 40 expert witnesses. We commend all members who listened and learned.

Deputy Lisa Chambers (Fianna Fáil, voted for repeal) stated:

“I hope that other Members in both Houses will take the time to read over the evidence put before the committee because I have no doubt that no member of this committee would say that he or she did not learn something new. Speaking for myself, I have learned quite a lot. I definitely feel that my position is now an informed one. I have considered all of the evidence. I have listened to the overwhelming medical evidence.”

Deputy Catherine Murphy (Social Democrats, voted for repeal) also commented:

“Citizens are way ahead on this particular matter and they are not immune to seeing the number of women who are accessing pills online, not within a medical environment, and the number of women who are travelling.”

What can you do now?

Get involved with the fight for free, safe and legal abortion by contacting your TDs and make it clear to them that providing real and effective abortion access in Ireland is important to you. Ask your representatives to read the Committee’s report, available here. Tell them that it is time to repeal the 8th and provide healthcare at home.