Medical Law Review: Dr. Ruth Fletcher, Queen Mary University London

I again welcome viewers to the committee proceedings. On behalf of the committee, I extend a warm welcome to Dr. Ruth Fletcher, senior lecturer in medical law, Queen Mary University in London. Is Dr. Fletcher aware of the laws around privilege and qualified privilege the reference to which I read earlier? Although I have no difficulty in doing so, is she happy for me not to read through it again?

Dr. Ruth Fletcher

That is fine.

I now call on Dr. Fletcher to make her presentation.

Dr. Ruth Fletcher

Thank you, Chairman. I thank the members of the committee for the invitation. It is a great pleasure to be able to draw on the research and teaching I have been doing in the area of medical law to think practically about how we might build on the insights of the Citizens' Assembly and how we can practically translate that into legislation.

I thought in this presentation I would select some key points from the submission I made. Before I get to focusing on how we might translate the Citizens' Assembly recommendations in regard to both on-request models and criteria for access in the later stages of pregnancy, there are two framing issues on which I wish to focus.

The first is in regard to the trend towards decriminalisation and the significance of decriminalisation. That that is an option open to the committee members in order to progress the framework within which the Citizens' Assembly recommendations might take effect. Basically, as I am sure the committee will be aware, decriminalisation of abortion is part of an international trend. Even though there are significant criminal prohibitions in many different countries, we are seeing a trend towards taking the criminal law out of the regulation of reproductive health care, in particular, abortion, partly because it is about having the right tool for the job. In a sense, criminal law is not the right regulatory tool for regulating reproductive health care and the main argument around decriminalisation of abortion health care at present is about taking the punitive aspect of law out of the regulatory tool box that is available for different kinds of abortion care.

One key reason people find it persuasive to take that punishment element out of the regulation of abortion care is because it is having a chilling effect on professionals providing quality abortion care and health care, and because it stigmatise this kind of reproductive health care and because it has an impact in the sense that we have seen individual prosecutions and there is fear and stigma then attached to that for individual users of abortion care. However, it is important to remember that taking the criminal law out of the regulation of abortion care and reproductive health care, that is decriminalising, is not about deregulation or full legalisation. Decriminalisation is about, as I say, removing the punitive element but there are still many other legal tools available to ensure that good practice is promoted and that poor practice is held to account. That would be the function of the civil law, for example, in regard to the tort of negligence, and it would also be the function of professional regulation. In medical law, we have other legal tools available to hold good practice to account and to promote that good practice. Criminal law does not need to do it.

The second key point is that decriminalising does not necessarily mean one is fully legalising something. One can still adopt criteria that make certain kinds of abortion care lawful and unlawful. It is merely that one might use other sorts of public tools, such as incentive measures and funding measures, and even information, in order to monitor that boundary between what is lawful and what is unlawful. That is the first key framing issue that we might want to think about a bit more that might help implement the recommendations of the Citizens' Assembly.

The second is the guarantee of access that I have proposed in the third part of provisions that might implement the Citizens' Assembly objectives. That is about making clear that there is a public responsibility to provide abortion care to the highest attainable standards. One has two framing measures with regard to the statutory provisions in a possible Bill that would implement the Citizens' Assembly, namely, decriminalisation, and a positive guarantee of access to make sure that it is the Minister for Health - the public system - which is responsible for ensuring access and for implementing principles around non-discrimination.

Not only does it seek to make sure there is a level of public responsibility for delivery of a quality service but it also attempts to redress the previous situation in the sense that we know that the negative effect of abortion restriction has been most keenly felt by those who are most disadvantaged, so we can address that by making a guarantee of access as clear as possible. Those are the two framing points on which I would be delighted to take questions and comments.

I will now focus on what I am recommending in terms of the actual grounds themselves and what might be the best and clearest way to implement the recommendations of the Citizens' Assembly. The first is on language that might implement the on-request model. There are three main reasons parliaments and people have found on-request models persuasive. Two of them are related to women-centred arguments but one is related to a more foetal life-centred argument. On-request models have received public support because they take women's wishes seriously and that is one of the key reasons. A second key reason is because they make it easier. By that I mean there is less obstruction or less harm for the particularly vulnerable cases. Making abortion available on request means that the barriers and scrutiny that might come with particular pathways for rape victims or women who have serious health conditions are reduced in terms of facilitating access for that vulnerable group of women seeking abortion.

The third reason is because on-request models, as committee members have heard, tend to have the impact that abortions are more likely to be availed of at an earlier stage. There is a way, therefore, in which, in effect, if one takes the view that foetal life develops more value in a gradual way over time and if one does not have an absolutist value on foetal life, and many people think foetal life deserves some respect but just does not deserve the same kind of legal recognition women's lives do, there are ways in which many different legal regimes have recognised that foetal, prenatal, life deserves some sort of respect. On-request models can deliver on that to some extent in the sense that they make it more likely that abortion would be earlier rather than later. The effect of them is also to speak to people's concerns that prenatal life should have some respect but just not in the same way that women's lives would have.

The other issues to think about in relation to abortion on request, and I have recommended that we follow the Citizens' Assembly recommendations, is by providing that a person who is not more than 12 weeks pregnant may access abortion on request and without the need to demonstrate indications other than her own wishes. Again, the woman's wishes would be the main criteria for accessing an abortion on an on-request ground. One thing to think about in relation to that is that it might be possible, given what the Citizens' Assembly recommended, and given the recommendations based on the World Health Organization guidelines and the kind of variety the committee has been looking at in the earlier sessions, to extend that period from 12 weeks up until something more like 22 weeks, which 44% of the Citizens' Assembly recommended.

The final point is in relation to how to translate the types of recommendations that speak to making access available later in a pregnancy for especially vulnerable groups. What I have recommended in relation to that is that we have a ground which would allow a person who is between 12 and 22 weeks pregnant, for example, to access an abortion where an appropriately qualified medical practitioner determines that the abortion is appropriate in all the circumstances and then in making that determination the practitioner shall have regard to the pregnant person's own wishes, feelings and thoughts on her current and future circumstances. There is a way of making sure that the pregnant woman's concerns are part of that process but where one still has an approval process for later terminations. An appropriately qualified medical practitioner could include nurses and midwives, for example. We could expand the provision and enhance a local service in that regard.

For pregnancies that are of longer duration than 22 weeks, where the Citizens' Assembly wanted access at that point to be still available where there was risk to the person's life or a risk to health or in cases of fatal foetal anomaly, the idea would be that the appropriately qualified medical practitioner could consult a second appropriately qualified practitioner but that one would make it available on the legal pathway of a risk to a pregnant person's life or health. There is a difference between the reasons people have, in particular in vulnerable situations, in terms of serious risks to health, rape or carrying a pregnancy with a serious anomaly. Those are the reasons particularly vulnerable people might have for wanting access to abortion later in pregnancy but we do not necessarily have to use that language in the law. The language we use in the law can be a more open ground such as risk to health or life. In that way one removes the ways in which criteria such as rape grounds, anomaly grounds or a finding of serious risk can be an obstruction and instead one puts the details around what circumstances might qualify into the code of practice or into guidelines. Those are really the main points I wanted to emphasise in relation to the submission. I look forward to discussing them in more detail.

I thank Dr. Fletcher. I now call Senator Rónán Mullen. He has about three or four minutes but I will give him six minutes.

I will only take about half of that if that is okay. Is infanticide still criminalised in Britain and Northern Ireland?

Dr. Ruth Fletcher


Does Dr. Fletcher have a different view on whether infanticide should remain a criminal offence? It is clearly her view that abortion ought to be decriminalised. Does she take the same view of infanticide?

Dr. Ruth Fletcher

That is an interesting question. I do not take the same view of infanticide. That is because I think birth is a very significant social and legal event which should mark the differentiation.

Does Dr. Fletcher think the unborn baby has any rights before birth?

Dr. Ruth Fletcher

The way I would phrase it, and other countries have done this, which is one of the points I have been trying to make in my work for a while, is that we see there is value in prenatal life. There is an objective value in that life in that it has potentiality to go on and become a person and because we as human beings invest in the significance of that life and the work of reproduction is an important social role. Therefore, yes, I do think it has value but I do not think we need to translate that value into positive rights in the same way-----

Does Dr. Fletcher mean value only to the extent that another human being invests value in it? Is that her position?

Dr. Ruth Fletcher

That would be one of the reasons it has value but that is not the only reason. It also has symbolic value and a kind of potentiality.

I thank Dr. Fletcher. I was struck by her rationale when speaking about on-request abortion. I do not know whether this is her view but she appeared to cite the view with approval. It struck me that there was something Sir Humphrey-like about the idea that an on-request basis for abortion in some way offers some respect to the unborn because it might be argued in certain cases, but I do not think the difference is that stark, that people might have abortions earlier if it is available on request. Given that the death of the child is what results, it does not seem like an awful lot of respect for the unborn. It is a fairly tortured sop to the unborn. Is Dr. Fletcher not engaging in a kind of strategic argument that there is something here that she can call in some way pro-life by making abortion on demand?

Dr. Ruth Fletcher

No, I am not engaging in a strategic argument in that way at all. I am trying to deliver on what is a complex range of people's wishes that are not black and white in terms of the relationship of reproduction in which a pregnant woman and a foetus are involved. I accept that people who are against all abortions would not accept that rationale.

Would Dr. Fletcher accept that from the point of view that the unborn baby has rights as a human being, decriminalisation does not make sense?

Dr. Ruth Fletcher

Yes, as I said earlier, my point is that prenatal life has an objective value but that is not the same value as a full living born person.

I might say in passing by way of some kind of compliment that Dr. Fletcher is an example of an expert that has a very particular, definite view as opposed to being an advocacy group.

Professor Fionnuala McAuliffe, the then head of the Institute of Obstetricians and Gynaecologists, said in hearings here in 2013 that regardless of the legislation being discussed, she and her colleagues would continue their existing practice of trying to get every pregnancy to a stage at which the baby would survive, if it were medically safe to do so. Dr. Rhona Mahony said at the time that obstetricians are not in the business of killing foetuses and so on. Is it not the case that Dr. Fletcher and others with whom she works within a legal group, through her activism and the production of draft legislation, are proposing a radical departure from any notion that there could ever be a reason for delaying an abortion?

Dr. Ruth Fletcher

I am trying to work out what the Senator might be speculating about in asking that question. To pick up what he was saying earlier about delayed access to abortion and how it has happened in some cases that professionals have sought to continue the pregnancy in order that a live child could be delivered-----

Provided it is medically safe to do so.

Dr. Ruth Fletcher

What does "medically safe" mean? If it means detaining a woman against her will or inflicting degrading treatment on her, then those are forms of treatment that are not sustainable and not rights-respecting.

Does Dr. Fletcher accept that to speak of abortion care, as she does repeatedly, does not make sense if one is thinking also in terms of the unborn baby as an entity that deserves protection?

Dr. Ruth Fletcher

Again, the unborn baby, to use the Senator's term, does not exist in some sort of independent state. Abortion care, like all forms of reproductive health and medical care, has to address relationships. The prenatal life is being sustained by the pregnant woman and, so, in the context of delivering abortion care for the pregnant woman-----

But not for the baby?

Dr. Ruth Fletcher

There is not a way to provide care for foetal life without reducing the pregnant woman-----

We have been doing it very successfully for years in this country, caring for both mothers and babies, as our medical history attests.

Dr. Ruth Fletcher

That is contested.

If this committee did nothing else but decriminalise abortion, what effect would that have?

Dr. Ruth Fletcher

The committee would have to do more than decriminalise abortion to deliver on the recommendations and ensure a safe, timely service is made available. Decriminalisation is one good tool that would take the punishment element away, but there would need to be some clarity about the terms on which an abortion service is provided. Given the history of having outsourced provision, there is not an institutional history of developing the service. The transition from a situation in this country where abortion care has not been integrated into the provision will require positive legislation to guide the terms on which the service would be provided. Decriminalisation is an important tool that would help to deliver that service, but not the only necessary tool.

How does medical law and policy interact with future developments in medicine? As we know, medicine is progressing all the time. What does Dr. Fletcher consider the most effective way for legislators to make law that is able to respond to future changes in medicine?

Dr. Ruth Fletcher

As I made clear, if there is a guarantee of access in the provisions, it would be the responsibility of the Minister for Health to review and deliver an abortion care service to the highest attainable standards. That type of language is meant to work in tandem with scientific developments and allow for a review of public regulation of the service in order that it can accommodate scientific developments such as the development of the abortion Bill, for instance, but also low-tech developments. A particular trend we are seeing internationally in medicine and science technology, one which the committee does not seem to have picked up on in a significant way, is the increasing involvement of nurses and midwives in the delivery of care, because such involvement helps to deliver a quality local service. There are both low-tech and high-tech ways in which the guarantee of access can seek to maximise the capacity of the law and regulation to respond well to scientific developments.

We heard in previous sessions about prenatal life. What is the legal position of prenatal life, if any, under medical law?

Dr. Ruth Fletcher

There are a variety of positions. As I am not a comparative lawyer, I am somewhat straining my expertise in responding to this question. Certainly in medical law we do see different ways employed by which a kind of constitutional value of prenatal life is devised which is not, however, equivalent to the value accorded to persons eligible for full rights-bearing protection. In Spain, for example, the statutory language refers to the desire to respect prenatal life but states that the best way to achieve that is by providing quality reproductive health care and positive guarantees around maternity. The respect for foetal life is channelled in particular ways. We see these attempts at characterising a value in prenatal life because, as I said, people invest in and care for that life and because it is seen as having a symbolic and potential value for the future. Those ethical concerns get translated into this type of category of a legal or constitutional value that is lesser in weight than that of a full rights-bearing person.

I thank Dr. Fletcher for her presentation, which was very practical and useful in the way it is laid out in possible heads of Bill. It could be very helpful to the Department of Health, which is currently looking at drafting legislation.

The point regarding objective value versus societal value is a very interesting one. Will Dr. Fletcher expand on it? There is a great deal of confusion as to how societal value lines up against the human rights of an actual individual in the world, experiencing life, with family, friends and a job. The societal value placed on foetal life is very different from that and it is a distinction worth examining.

Dr. Fletcher noted that our work presents a good opportunity to learn from the implementation and operation of the Protection of Life During Pregnancy Act. From a medical law perspective, what does she consider the most important lessons to be learned from that legislation?

The witness mentioned that accommodation will have to be made for conscientious objection in abortion services provision. How best can we create a legislative model that includes such accommodation, and is there a country we might look to in so doing?

Dr. Fletcher made an interesting point around abortion access on foetal anomaly grounds and rape grounds and including them under a different category or classification, which would be risk to health. Why does she consider that classification superior to creating one or more specific grounds or categories in themselves?

Dr. Ruth Fletcher

On the question of societal value versus objective value in respect of foetal life, we must bear in mind that law is a complex toolbox and there are different ways in which we can respond to the fact there are pluralities in society and people have very different views, but those views are not black and white. The law can work in a way that is layered and complicated in attempting to respond to the different interests people have.

This development of a recognising of a value in foetal life is an effort to respond to that plurality but also to say that there are things we want to do such as provide good maternity care, miscarriage care and education around reproductive health and sexual health. There are things we can do which have an impact on the value of reproduction and the contribution which reproduction makes. It is a kind of public value and societal value in the reproductive contributions that are made. Within that model, prenatal life has some weight. However, as it does not meet the same criteria or have the same social history or social relationships as born, living, feeling, thinking women, it is not the same weight and would always be subject to the protection of the full human rights of pregnant people. However, there is still a way we can try to promote that public interest in doing the best we can in terms of the provision of reproductive health care. That is one of the reasons on-request models have found support not just among pro-choice constituencies in other jurisdictions but among constituencies where people are perhaps not against abortion entirely but they have concerns about it. Those concerns can be addressed by saying that the effect of an on-request model will make it easier for pregnant people to access abortion at earlier stages, and the views of those who adopt a kind of gradualist model of pregnancy can be accommodated in that way.

The point about learning from the Protection of Life During Pregnancy Act is an important one. Medical law would normally have audit, research and reflection into legal processes and it would be a good idea to build that into our statutory processes in this area, as in any area of law. In some areas it happens more than others. We have seen with the Protection of Life During Pregnancy Act some non-delivery of abortion care that seemed to meet legal grounds, for instance, the cases of Ms Y and the woman who was detained under the Mental Health Act. There is definitely lessons to be learned there. Even though formal legal grounds can be created for accessing abortion and making it lawful, the interpretation of those grounds needs to be guided by professional regulation and perhaps a code of practice to ensure that they are implemented fully. Those are the main areas. We can learn from what did not work as well as was expected with the Protection of Life During Pregnancy Act. Life exceptionalism - the right to life-saving abortion - can be interpreted in a more positive and human rights-respecting way to enhance the dignity of the woman whose life is threatened, for example. We see that in some Latin American countries but it does not seem to have happened in this case. That is therefore an interesting lesson to learn.

In terms of conscientious objection, my recommendation would be to recognise conscientious refusal to provide abortion care. That is out of an interest in recognising plural opinions and wanting to build a system in which there is public trust. It is not good for pregnant people accessing services if they are coming up against people who do not want to provide the care to them. There are good reasons to have a protection of conscientious refusal to provide abortion care but it has to be implemented in a way that respects the rights of the pregnant woman. There has to be a referral, for example, and it has to come under the guarantee of access in the sense that she has to get a safe and timely service, even though there is that particular conscientious refusal. It also has to be clear that it does not apply to institutions, for example, as that would be contradictory. It is supposed to protect individuals. If an institution is protected, individuals in an institution do not get their right to differentiate from the institution.

In terms of thinking about different ways in which we could implement access when pregnant women need it at later stages of pregnancy on grounds of rape or foetal anomaly, if we use the term "rape" or a diagnosis of "foetal anomaly" in the law specifically as the reason, it generates problems, as the committee has been hearing. Let me tackle the rape one first. We do not need to have the rape ground specifically in the legislation. It can be the set of circumstances which generate the risk to the woman's health. It is a set of circumstances that generate the qualification on the legal ground. That is a typical way of addressing the issue. Then we do not have the sort of problems around requiring women to engage with the criminal justice system when they are not ready to or the proof problems the committee has been hearing about.

On foetal anomaly, we are trying to think about what is the best way of achieving legal criteria to implement the Citizens' Assembly's objectives. In a sense, often we have conflicting objectives. Here we are trying to avoid a stigmatisation around disability or vulnerability, for example. People have concerns that we stigmatise disability or vulnerability if we specify "foetal anomaly" in legislation. The idea is to avoid the legal stigmatisation by recognising that those are circumstances which can generate a risk to health and the ground is one that is focused on the woman or pregnant person rather than one that is focused on the anomaly of the foetus. Again, a code of practice would be used to make that clear.

I call Deputy Durkan. I ask him to be mindful that we are quite tight on time and that another witness will be in after this. There is a lot of work to get through, not to belittle any of the comments or questions or anything of that nature.

I thank Dr. Fletcher for coming before the committee and for her responses. Following on from Deputy Naughton's line of questioning, if nothing else but decriminalisation happens, how does Dr. Fletcher see the situation developing? Would it be legislation to protect the medical sector? Alternatively, would it be left entirely to the medical sector? Would that be wise given the litigious nature of our society nowadays?

Abortion on-request with space for ongoing counselling has been raised and provision appears to be urgently needed in respect of counselling. Some countries have it and some countries do not. One of the things adduced at this committee in the past couple of weeks was that in some situations the pregnant woman changes her mind during the course of the pregnancy. How does one determine at which stage in the pregnancy it is correct to proceed in a particular fashion and to go for termination or not to go for termination given her natural tendency to change her mind in the course of the pregnancy?

Dr. Ruth Fletcher

I will deal with the last issue first and work backwards. As with any medical procedure, people often need a chance to deliberate and think about their options. The question does not point to any concerns that apply specifically to abortion care. I guess it is a question around consent and when a decision has been made about a particular health care treatment. If the person has not had the treatment, he or she can withdraw the consent or change his or her mind at any point.

That is a normal part of engaging in health care options. The whole point of consent in health care is that one has the right to change one's mind. It is part of the deliberation counselling process and this deliberative process is supported by counselling and good information. Once the pregnant person comes to the point of making a decision and going ahead with the treatment, that is the key point at which the consent operates.

I ask because we also have statistics from Professor Aiken, and a graph showing the feelings of women post-abortion, which appear to confirm that women changed their minds or had some concerns afterwards. I emphasise the need for counselling and professional support for women who have a crisis pregnancy. A considerable percentage - 46% - of people who had an abortion had concerns afterwards, ranging from feelings of being alone to being isolated, feeling lost and sad, etc.

Dr. Ruth Fletcher

I am not aware of research showing that regret over abortion is significant. There tend to be relief and positive emotions.

We are looking for the information to which the Deputy refers so that we can be clear about it.

Dr. Ruth Fletcher

The Deputy is concerned about people who might feel regret but that is usually associated not with the abortion, but with the set of circumstances in which they got pregnant in the first place. These are complex experiences and varied emotional responses are not a reflection on the decision to have a termination of pregnancy. We have to differentiate between changing one's mind on the decision and having regrets about other things. It is about how we address the small number of cases where people might have-----

The graph is on the screen.

I agree but there is a need for counselling and advice beforehand where a woman or girl feels isolated and in need of such advice. In Germany that advice is available more readily than in any other country, including those where abortion is available on demand. The responses include feeling relieved, satisfied, happy, pleased, guilty and sad. A total of 10% said they felt confident and almost 10% were empowered but there were also feelings of loss. There is a considerable proportion of people in that category when one adds them all up.

What category?

I am asking questions. I mean no disrespect to anybody behind me. The questions relate to the total number in the group - 46% of respondents, which is a sizeable number. It states that there is no 100% as the same group is listed under both headings.

I am not interrupting. I am the Chair and I do not interrupt. I clarify issues and ask for matters to be clarified. The women could have felt a number of the emotions to which the Deputy referred at the same time.

I accept and understand that.

The Deputy mentioned percentages and I do not think that is a fair reflection of the situation.

They all fall within the category of women who had abortions. The statistics reflect the variations of their feelings afterwards.

Dr. Ruth Fletcher

They do not indicate a need to stray from the principle of consent in relation to abortion treatment but they might indicate a complex range of reactions which coexist. This means we need good quality counselling services and support measures and there is, through the HSE, public funding of counselling and support, both pre and post abortion care. This can be built on as the abortion care service develops. There are different regulatory tools for different purposes and public funding of counselling and information would address the Deputy's concerns.

Deputy O'Sullivan has six minutes

It is unfortunate that, in the area of medical law, we do not have the opportunity to ask detailed forensic questions such as Senator Mullen was able to ask of Professor McCaffrey. I read his document on prenatal counselling but we have been deprived of the opportunity to ask questions of people who have a different view and it is extremely unfortunate, particularly in the context of what Dr. Fletcher said.

I reiterate what Senator Ruane said as to the usefulness of giving us advice on how the State might proceed if there was a referendum, either to amend or repeal the eighth amendment, because we do not yet know what the wording is going to be. Dr. Fletcher suggested we should proceed on the basis of a new piece of legislation rather than trying to amend previous legislation. Can she expand a little on that?

Dr. Ruth Fletcher

There is a very practical reason in the sense that if one has to adopt legislation which amends an earlier piece of legislation, one ends up working with two Acts. It might be simpler to repeal it in its entirety and replace it with a new Act and this would satisfy the basic objective of simplifying the statutory structure. A second reason is that the transition from a legal regime which has taken an exceptional approach to abortion care - in that it is only available when the life of a woman is at risk - to a system which allows abortion on request, to some extent, is a major one. They are two very different regimes so the transition would be better marked by adopting an Act that did not have limitations relating to life-saving exceptionalism as the Protection of Life During Pregnancy Act has. Does that answer the question?

I thank Dr. Fletcher for her paper, which was very clear and helpful. Are there any other jurisdictions where there is a legal system which is not based on primary law? I am thinking of the Canadian model.

Dr. Ruth Fletcher

The Deputy is asking about places where there might be an absence of criminal law.

Dr. Ruth Fletcher

Did the Deputy say "primary law"?

I said "primary legislation".

Dr. Ruth Fletcher

There are such examples and Canada, where abortion care is regulated under the health act, is one. Decriminalisation came with the striking down of the criminal provisions by the Supreme Court. This might not translate particularly well into the Irish environment because we might need more than the striking down of the criminal provisions.

Obviously, that is something to be debated and considered.

The witness obviously based her paper on the Citizens' Assembly. There were two elements to it. Undoubtedly, a change to the Constitution was envisaged by the assembly. I hope that it will be a straightforward repeal, although that decision has yet to be made, even by this committee. The second phase related to legislation and it cannot predate the referendum. The assembly identified a number of issues, for example, rape and incest, which we have discussed in the committee, that are incredibly difficult to incorporate into law. The on-request provision would take care of some of that up to the first trimester, for example. However, incorporating it afterwards means it could be provided for if there are other sets of circumstances. What are the other circumstances one would have to provide for specifically to cater for that?

Dr. Ruth Fletcher

The legal ground would be a risk to health. The circumstances where somebody is pregnant through rape and is distressed and vulnerable and does not want to continue that pregnancy clearly can constitute a risk to her psychological health. It is to continue the pregnancy against her will in circumstances where she is pregnant through a violation in that way. There are different circumstances. That set of circumstances relating to her experience of pregnancy through rape can constitute the risk to health. That would be the legal ground specified in the legislation. The rape circumstance is the risk to health legal ground in statute. Then there would be a code of practice or regulation to join the pathway between the two.

Would one use medical professionals to adjudicate on this?

Dr. Ruth Fletcher

One would guide their adjudication of it with something like a public policy document. One would not leave it entirely to the professionals. One has the option of not leaving it entirely either to professional practice or professional guidelines. The link between those two can be made more explicit by Department of Health guidance. In that sense it would be State public policy rather than professional guidance.

With regard to health in the second trimester, the Citizens' Assembly considered serious risk and risk to health. Is that something one can adjudicate on?

Dr. Ruth Fletcher

This is why I did not use the word "serious". We have a history of the term "real and substantial" operating as a barrier. To the same point, if one adds something such as "serious" into a ground like risk to health, that could potentially become an obstruction or barrier in respect of what counts as serious. The empirical research on pregnant people's reasons for abortion at later stages tells us that they have very serious reasons, by and large. We do not have an evidence base that would suggest a need for requiring that seriousness in statutory language. It is there already in the practice of abortion seeking. That is one reason we do not need it. The more negative reason is that it can operate as a restriction or barrier in some instances. If we want to move towards a policy and practice which is led by removal of barriers which might have an impact on the health and human rights of pregnant people we should avoid qualifying language such as "serious".

Dr. Fletcher's input was clear and helpful, which minimises our need to ask questions. A number of questions have been asked already but I wish to raise a few matters. The witness has given a good insight into how some or all of the Citizens' Assembly recommendations might be recommended. We can probably take it as a given that even if we did not implement some of them, new legislation will require that the Protection of Life During Pregnancy Act will have to go. I wish to explore the decriminalisation issue. That is the only legislation on the Statute Book at present that criminalises abortion outside the narrow circumstances where there is a danger to a woman's life. It would be necessary to remove that legislation, therefore it is not legal or illegal. It is just there. The regulation of the abortion pill would be through normal health regulation of products in a pharmacy or how all of that is regulated for and administered by one's pharmacist, nurse, midwife or whatever. It is a little like the morning after pill. It would be part of the health service, not with conditions laid down in law. It is just a medical product that is licensed in Ireland. Could that be done in the context of getting rid of the Protection of Life During Pregnancy Act post-repeal?

Dr. Ruth Fletcher

Yes, one could do that. One of the options would be to repeal the Protection of Life During Pregnancy Act and to integrate abortion care into existing regulation. There is much to be said for that. Given that it is a big transition and that it will have an impact on the professional delivery of care, a statute would lay out things such as the guarantee of access. We are used to thinking of legislation as being restrictive but we could switch and think about legislation that can be promotional of good practice. That would be the reason a statute might be a good thing to replace that Act, to make it clear that it is a reproductive health statute, to decriminalise and to promote public provision.

There could be legislation which would provide for the broader grounds in later pregnancy and regulate the earlier one.

Dr. Ruth Fletcher

I thank the Deputy for raising that, because I left that part out in my response. The legislation is making clear the criteria for lawful abortions. As it is clarifying those terms that makes it easier for implementation.

That is helpful. We have a great deal of evidence, and we know ourselves, that nobody wants women or practitioners being criminalised for this. Access is a key issue. It has been a thread today. Even for people who might have reservations and who would say they are not in favour of unlimited access to abortion, the best way of guaranteeing access is through early availability for the first trimester. Perhaps the witness would elaborate on that point. I believe Senator Mullen was a little unfair to her earlier in the comments about her point, which was, in effect, that this would respect the view of some citizens on prenatal life. My interpretation of what the witness meant, although I might be wrong, was that people would view access to abortion on request up to 12 weeks as dealing with what at that stage, as anybody who has had a miscarriage knows, is like a heavy period. It is a little blood clotting and perhaps a little cramping. It is not the same as a fully grown woman. People recognise that there is a difference between that up to the first trimester and a foetus on the point of viability. By distinguishing in that way and making abortion available on request in the early term one is accommodating that. Perhaps the witness would expand on that.

Dr. Ruth Fletcher

Absolutely. There are probably two key points in respect of thinking about how on request models can accommodate different people's beliefs around the value of prenatal life. One would be where people have a type of gradualist approach, that in the early stages it is not as significant in value as it might be in the later stages. Adopting an on request model because it makes it more likely that people would access abortion at earlier stages means, in effect, one is achieving that goal of gradualist protection. Another point is that the lack of access in the prohibition does not have the effect of stopping abortions, so one is not achieving protection of prenatal life when one prohibits it in that way.

The two work as either side of a coin. People who do not take a gradualist perspective, whose perspective may be about the symbolic or potential value of foetal life and it would not necessarily vary for them but again it would have less weight than the sentient woman, will be accommodated by a system which balances the different interests at issue by allowing earlier access and fewer obstacles to access in the earlier stages. I would encourage the committee to think about whether they want to stick with the 12 week limitation, given the variety that is available in other jurisdictions and given the size of the vote in the Citizens' Assembly, which was 44% in favour versus 48% against. If the Citizens' Assembly got to the point of thinking about how to remove barriers to access and thinking about how to apply an on-request model in various ways, with 44% supporting abortion until 22 weeks, that is a lesson for us in terms of the impact of evidence and public education on support for those models.

That concludes this session. I thank Dr. Fletcher for her attendance as it has been very helpful.

Sitting suspended at 5.30 p.m. and resumed at 6.15 p.m.