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Abortion reform Irish style - Women still have no rights over their own bodies, continue to travel to the UK for procedure

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A protestor meets Minister for Agriculture Simon Coveney last week at Government Buildings in Dublin.
A protestor meets Minister for Agriculture Simon Coveney last week at Government Buildings in Dublin.

The outline of the government's proposals for legislation on abortion were agreed by the cabinet and published last week. 

It's important to remember that what we have so far is the heads of the bill rather than the full detail. There will be much discussion as all the detail emerges in the coming weeks, and the overall bill may be finessed somewhat before it becomes law.

But the heads of the bill give the proposed framework and the outline is clear.  The basic structure is unlikely to be changed.

The first thing to be said is that there is no proposal to change the constitutional position here which gives a pregnant woman and her fetus an equal right to life.   Our Supreme Court interpreted this 30 years ago to mean that abortion is permissible here only when there is "a real and substantial risk to the life, as opposed to the health, of the mother."  

The proposals produced by the government last week aim to make clear what this means, and to provide a legal framework for abortion in such cases.

The second thing to be said is that although women will be able to have a termination here under a legal framework for the first time, the proposed regime is so restrictive that the thousands of Irish women who now travel to Britain for abortions every year will continue to do so.  In reality, there will be no change for them.  

The core of the proposed restrictive abortion regime will be what one minister referred to last week as the one, two, three structure (the one, two and three being the number of doctors required to allow an abortion in different scenarios).   

In the first scenario -- in a case of acute medical emergency requiring a termination -- only one doctor will be required to certify that a woman can have an abortion.  In cases like this the "real and substantial risk to the life of the mother" will be immediate.   To avoid any delay in preserving the life of the woman, only one doctor will be required to certify that an abortion is necessary.  

In the second scenario, where there is a "real and substantial risk to the life of the mother" that is not immediate (in the case of certain diseases like cancer, for example), two doctors will be required to certify that an abortion is necessary.  In such non-emergency cases the threat to the life of the woman must be real, even though it is not immediate.

If either continuing the pregnancy or eventually giving birth would be a real threat to the life of the woman, an abortion may be performed.  The decision by the two doctors must be unanimous.   

One of the doctors must be an obstetrician or gynecologist and the other a specialist in the relevant area (for example, a specialist in uterine cancer).  During their assessment one of them may consult the patient's own doctor. 

If the two doctors involved refuse an abortion the woman will have the right to appeal, and that appeal will be heard by another two doctors of similar experience within seven days.

The first two scenarios relate to physical medical circumstances.   The third scenario relates to psychological circumstances.

In the third scenario, the pregnant woman does not have a physical medical problem but is suicidal because of the pregnancy and wants an abortion.  In such cases three doctors -- two psychiatrists and an obstetrician or gynecologist -- will be required to certify that an abortion is necessary to preserve the woman's life.  Their decision must be unanimous.

The woman who is claiming to be suicidal because of her pregnancy will be examined by the panel of three doctors to see first if there is a "real and substantial risk" of her taking her own life, and second, if the suicide risk can only be averted by abortion.  Again, the decision has to be unanimous.  If the three doctors do not all agree on the need for an abortion, the woman will be refused.

She has the right to appeal a refusal and her appeal will have to be heard within seven days by a review panel of three different doctors -- again two psychiatrists and an obstetrician or gynecologist -- who will make the final decision.

So what does all this amount to?  In the first two scenarios in physical medical cases, there is almost no change.  Irish hospitals already carry out abortions in the very rare cases where continuing a pregnancy poses an immediate threat to the life of a mother for physical medical reasons.  The only change is that in non-emergency cases, doctors now have more certainty that a longer-term risk to the life of the mother may justify an abortion at an earlier stage.

So would this have saved Savita Halappanavar?   Probably not, because in the two days when she was requesting a termination the doctors in the Galway hospital had not diagnosed her sepsis.  

Even if they had, under the proposed law a termination could not have begun unless the doctors decided that there was a real and substantial threat to her life.   Although we know that sepsis can be deadly, we also know that most cases can be treated successfully with antibiotics.  

So we are back to the old problem -- when is a risk to the life of the mother, as opposed to merely her health, real and substantial?  

The new law does not make this clearer.  Instead it leaves it to doctors to decide. 

It is, of course, the third scenario, in which the threat to the life of the mother is from suicide, that poses the greatest problems.  

Because this is seen as the way in which widespread abortion was introduced in other countries, many people and politicians here are worried that a claim to be suicidal could be used by women who wanted an abortion for other reasons and who were not genuinely suicidal.

To calm these fears, the government has made this third scenario the most restrictive of all, requiring a unanimous decision by three doctors -- two psychiatrists and an obstetrician.

Why does it need more than one psychiatrist to decide if a woman is suicidal?  The answer is it doesn't.  

And why does one of the three have to be an obstetrician? An obstetrician is not a specialist in psychiatric assessment. 

You could have a situation where the two psychiatrists say the woman is suicidal and the obstetrician says no.  Obviously this make no sense.

And if a woman is highly stressed and feeling panicky and suicidal, is she really going to be in a fit state to put her case to three doctors she does not know?  If she is turned down, is she going to feel mentally strong enough to cope with putting the case to another three doctors?  

The reality is that many women, especially young women, who find themselves in a crisis pregnancy situation find it difficult even to talk to their own doctor or their family doctor.

A lot of this makes very little sense from a physical or psychiatric point of view.  But it does make a lot of sense from a political point of view.

The government's aim is not to produce legislation that is rational, coherent and sensible from a medical point of view. Rather, it is to produce a legal framework on abortion that is so restrictive that it will get through the Dail (Parliament).  That's the real reason the proposed legislation is as convoluted as it is.  

Some of what is being proposed is so unbalanced that it is virtually certain to bring legal challenges in the courts.

For example, there is clear discrimination between women with a physical problem and women with a psychiatric problem, since in the first case an abortion can by permitted by two doctors but in the second case it will take three doctors.

There are many other shortcomings in the bill as revealed so far. For example, there are no proposals to allow abortion in rape or incest cases, even an incest case that might involve a very young teenager.  

Nor does it deal with cases of severe fetal abnormality or cases of fetal non-viability.  So women may still have to carry a non-viable fetus to full term, as they do here now, if there is no risk to their own life.    

What all this means is that Irish women who want an abortion, for whatever personal reasons, will still have to go to Britain to get them.  The only exceptions will be in cases where there is a medical need for an abortion because the woman's life may be in danger, or where a woman is suicidal.

To be fair to the government, they seem to be winning the argument so far, despite the opposition of the Catholic Church.   We had the nauseating sight last weekend of the lame duck Cardinal Sean Brady (a lame duck because of his record in dealing with child abuse by priests) attempting to lecture the government and the rest of us from the high moral ground.

As one politician here correctly observed, Brady and his crew don't occupy the high moral ground anymore and it will be a long time before they regain it, if ever.

Taoiseach (Prime Minister) Enda Kenny was saying last weekend that it was his duty to bring in legislation to give "clarity" to doctors.  But the great weakness in the outline of the proposed legislation is the continuing lack of certainty for doctors.  That may lead to a variation in interpretation by doctors. 

Defining the line where a risk to the health of a pregnant woman becomes a risk to her life is very difficult.  Some doctors may tolerate a high level of risk; some may certify an abortion even if the risk is relatively low and distant.  This may well lead to different outcomes for women in different hospitals and women being assessed by different doctors. 

One thing is clear.  Women will not be allowed to decide what level of risk they want to take in any of these situations.  So much for a woman's right to choose.   

It's abortion Irish-style. First you buy your ticket to the U.K. ...    

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