Stepping away from the void: legal reform and abortion

If we learn only one thing from the recent death of Savita Halappanavar, it should be the importance of legal reform on the issue of abortion. The biggest problem with the law in Ireland on this topic, quite apart from the question of whether abortion should be allowed and in what circumstances, is that the existing legal position is unclear and hard to understand for both doctors, and their patients. In fact, there is no written law as such.

In 1992, the Supreme Court of Ireland held that although abortion was not allowed in the Republic of Ireland, there is a right to obtain one where the pregnancy puts the woman’s life at risk, or in this case made a teenager suicidal (you can find a summary of the facts and the case here). The Supreme Court stated:

the proper test to be applied is that if it is established as a matter of probability 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 the termination of her pregnancy, such termination is permissible.

The decision as to whether the termination is permissible is left entirely up to doctors, with no guidance as to what factors might be appropriate.  In 2010, the European Court of Human Rights decided that even though there might not be a complete right to abortion, the lack of legal certainty was a violation of women’s rights as they could not obtain clear information about whether they had access to the procedure or not.

And now, two years later, it is sadly evident that the law is not any clearer, nor is it any better understood. If Savita’s life was at risk, as it seems to have been, then providing her with an abortion would have been legal, even under Irish law as it stands in this ‘catholic country’. A full investigation will hopefully bring more light to what actually happened and how such a tragedy could have been avoided. In the meantime, it seems hardly controversial to call for clarity in the law and a much awaited legal reform.

Legal reform on abortion is not, however, solely an Irish problem that we can safely observe from afar. If anything, the public debate surrounding the issue in the UK and the US, from movements supporting abortion service providers to Nadine Dorries’ controversial attempt to feed her anti-choice views to the masses through the medium of reality TV, shows that legal reform might also be on the agenda here.

Calling for legal reform on abortion is not necessarily a partisan call to action on one side of the debate or the other. Although it is generally seen as an anti-choice endeavour, especially following recent legislative attempts to limit access to the procedure (eg by lowering the time limit and changing counselling requirements for women), changing the law on abortion does not necessarily limit women’s choices, but can also lead to clearer rules and a broader consensus, which reflects true social positions. There are probably as many ways to deal with abortion in the law as there are legal systems, but specific examples can show different ways to approach the issue and maybe give some inspiration to legislators in Ireland and elsewhere…

What does the law say?

English Law

Contrary to what we might assume, English law does not recognise a positive right for women to choose to have an abortion, in the way that we have a right to freedom of expression and religion. Instead, the law provides a specific defence to cases which would otherwise be a crime according to two separate offences, both of which carry a maximum sentence of life imprisonment. The legal position is therefore that the action of procuring or attempting to procure an abortion is by nature wrong, but might be excused under certain limited circumstances. There is no right which guarantees or protects access to the procedure.

The offences which criminalise abortion are two very old crimes, defined in 1861 and 1929 respectively. They are:

  • Intentionally trying (or helping someone to try) to have an abortion, irrespective of whether you succeed, or even if you are not pregnant, and
  • Causing an abortion, either on yourself or someone else, when the foetus could have been born alive.

Since 1967, the pithily named ‘Abortion Act 1967’ has introduced a defence to these offences in certain specific circumstances. A person will not be guilty of an offence relating to abortion if the “pregnancy is terminated by a registered medical practitioner” and “two registered medical practitioners” are of the opinion that

  • The pregnancy has existed for less than 24 weeks, and “the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family”, OR
  • At any point of the pregnancy, there are serious medical issues relating either to the mother, the foetus or both.

So the ‘Abortion Act’ does not provide a right to abortion, but finds that in certain, strictly defined circumstances, trying to have or actually having an abortion will not be considered a crime. This is not because the woman has a right to decide and choose for herself, but only because doctors have found that continuing with the pregnancy will be damaging to the woman carrying the child or her existing children. Even under 24 weeks, it is not the woman’s choice which determines if she can have an abortion, but the doctors’ opinion on her mental and physical state.

This approach to abortion sets the UK apart from other countries, where there is generally a right to have an abortion by choice before a certain time limit. This is, for example, the case in France and Germany.

French law

The 12 or 14 week time limit applicable in France and Germany is often presented as imposing more restrictions than English law does. However, upon closer inspection, the law in both countries is potentially less severe than the English 24 week time limit. In France, for example, access to abortion is divided between two different procedures: ‘voluntary interruption of pregnancy’ (IVG) and ‘medical interruption of pregnancy’ (IMG). Each represents a different decision making process and attracts different rules:

  • A voluntary interruption must be performed by a medical practitioner, and has to happen within 14 weeks from the woman’s last period, which amounts to 12 weeks of pregnancy. During this time however, there is no limitation as to why a woman may interrupt her pregnancy – the fact that she decides to is enough, although she will have to see a medical practitioner and there is generally a time delay of a few days between the consultation and the procedure.
  • A medical interruption of pregnancy is also, as the name suggests, performed by a medical practitioner, but can be performed at any time during the pregnancy, in cases of grave malformation of the foetus and serious danger to the woman’s life. Certain conditions must be  met:
  1. It is not against the woman’s will,
  2. The disease is grave and incurable,
  3. Experts’ authorisation has been granted, and
  4. There are no other alternatives.

So, although the 12 week time limit for obtaining an abortion may seem more severe than in English law, the crucial difference in French law is that a woman who wants to interrupt her pregnancy in the first trimester (where over 90% of abortions happen anyway, in France and in England) can do so without having to seek any medical authorisation. Since 2001, French law explicitly states that it is her right to choose to have an abortion, and the only test is whether she considers that her pregnancy places her in a “situation of distress.” This approach ensures that it is truly the woman’s choice to have an abortion. Before 14 weeks, the doctor’s role is merely that of an advisor or facilitator, and is therefore closer to what it is in most medical cases.

Canada

The next step in making abortion more like a medical procedure is to decriminalise it entirely. This is the case in Canada, where it is treated as a medical procedure, regulated and protected by medical laws. This has been the situation for over twenty years, since a decision by the Canadian Supreme Court in 1988. Until then, the law regarding abortion was essentially the same as in England: intentionally trying to procure a miscarriage was a crime, unless the woman had a medical authorisation and the procedure was carried out according to various restrictions, including that the procedure should be approved by a ‘therapeutic abortion committee’ composed of at least three doctors and carried out in a hospital.

In 1983, 3 doctors were charged with the offence of trying to procure a miscarriage, based on the claim that they carried out abortions in their clinic without respecting those restrictions. The case went all the way to the Supreme Court, and the doctors’ lawyers argued that the law on abortion violated women’s fundamental rights according to the Canadian Charter of Rights. The court agreed with that argument (only one judge disagreed) on the basis that:

  • The law against abortion violated a woman’s right to security of the person (ie the right to do what one wants with one’s body and take personal decisions). In particular, the process that was imposed before a woman could have a legal abortion was too complicated and traumatic.
  • Although the state had a genuine interest in protecting the rights of the foetus, the law went too far and infringed on the woman’s rights more than was necessary to protect the foetus.

Different judges focused on different rights, but the core of the decision was that the legal complications created too many delays and possible complications when seeking an abortion, which could pose a significant risk to the health of the woman, both physically and emotionally. All the judges recognised the importance of protecting the foetus, but found that the law as it was did not strike the right balance between the protection of the foetus and the duty owed to the pregnant woman, especially as delays could lead to forcing her to carry out an unwanted pregnancy to term. The idea that a ‘forced pregnancy’ would be a particularly severe violation of a woman’s rights was strongly endorsed by the court.

Abortion in Canada is therefore not a crime anymore, although it doesn’t mean that access to services is necessarily easier. It also doesn’t mean that it’s outside of the law entirely, as medical law and ethics will apply to the medical decision of carrying out an abortion, and regulations about access to medical services will apply. Any violation of the rules surrounding medical practice and ethics might amount to a crime, but it will not be a crime relating to abortion per se.

Legal reform and policy

In terms of wider policy, the legal approach to abortion can be separated into three broad categories:

  • using the law as an expression of moral condemnation and prohibition,
  • limiting or cancelling the criminalisation of abortion altogether because of its negative consequences on women, and
  • including access to abortion services within a list of medical services that should be available to all women.

While France and Canada represent the second category of policy, English law still remains mainly the expression of a moral condemnation of the act, albeit with a limited medical defence. The fact that it does not recognise a right for all women to choose to interrupt an unwanted pregnancy, whatever the stage of the pregnancy, sends a clear message that abortion is morally wrong and therefore should be punished, except in certain limited circumstances.

This negative connotation is also reflected in the use of the word ‘abortion’ to refer to the procedure itself in English law. Although the process is referred to as ‘medical termination of pregnancy’ in the heading of the legal provision, the word abortion is more widely used, including in the title of the Act itself, which is the Abortion Act 1967. By contrast, in French law, the direct translation of the word ‘abortion’ (avortement) is not used at any point in the law: the term used is ‘voluntary interruption of pregnancy’ before 12 weeks, when the decision is made by the woman and ‘medical interruption of pregnancy’ after that, when the decision is made by the woman and medical practitioners. Meanwhile, in Canada, the Supreme Court justified its decision to decriminalise abortion by referring to the negative consequences of ‘forcing a woman to carry a foetus to term,’ shifting the emphasis on the consequences of not having an abortion, rather than on the procedure itself.

Although the word ‘abortion’ is technically neutral, it has become morally loaded, especially when compared to voluntary or medical ‘interruption of pregnancy’, and the concept of ‘avoiding a forced pregnancy.’ Those terms refer to the same medical act, but carry different connotations and are ultimately a reflection of the social policy implemented in each country. This lack of neutrality is partly because access to abortion represents much more than a legal problem: it’s a social question, a gender issue, a religious belief, a medical procedure, and a personal decision all at once.

The complexity of the question makes the quality of the legal answer even more important, as the recent case of Savita’s death has shown us. Ireland has avoided legislating on this issue for over 20 years now, and whatever the results of the enquiry under way, the lack of clarity in the law leaves a gaping hole where the legal safety net should be. While the law can often be an ass with little or unimportant consequences, the stakes are literally a matter of life or death in the case of abortion. This is why how the law is written and what policy it reflects is so incredibly important, whatever views one holds.

However, the fact that abortion is such a political minefield means that governments and Parliaments around the world often prefer to ignore the issue rather than risk alienating a whole class of voters. But just as a legal void can lead to tragedy, so a political void on the issue creates a space where personal and emotional arguments will inevitably lead to a skewed debate and eventually to bad law.

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