What does the proposed new law say about disability?

The government proposes that abortion will be available on request up to 12 weeks (see explanation here). After 12 weeks, a woman will only be able to access an abortion if two doctors  agree that her life is at risk, if her health is at risk of serious harm or the foetus has been diagnosed with a fatal condition. If the diagnosis is not of a fatal condition, abortion will be illegal (see explanation here).

It is possible to screen for some disabilities within the 12 week period during which abortion will be made available on request. However, the IOG has said that, at the moment, a confirmed diagnosis will rarely be available before the deadline for termination under the proposed law. The Master of the Rotunda Hospital has said that, in his experience, about half of parents receiving such a diagnosis will go on to travel to terminate the pregnancy. (For the Master of the Rotunda Hospital’s testimony to the Joint Oireachtas Committee see here).

A woman who has received such a diagnosis will only be able to terminate a pregnancy under the proposed Irish law after 12 weeks if she can demonstrate a risk to her life, or a risk of serious harm to her physical or mental health. The mental health ground proposed for Ireland, and the British law on abortion for mental health reasons in are very different (see further here) and so it is clear that a woman would not be able to access an abortion in Ireland after 12 weeks only because she was distressed by a particular foetal diagnosis.

Another key difference between the proposed Irish law, and the British Abortion Act 1967, is that the British law permits terminations later in pregnancy where there is a diagnosis of serious disability (read more about that Act here). The proposed Irish law does not.

It is also important to remember that, under the proposed Irish law, a foetus which can be born alive will be delivered alive by early induction or Caesarean section, and cared for like any other premature baby. This is because in cases of risk to life or serious risk to health, abortion will only be lawful until viability (see explanation here).

A woman who cannot show some other legally valid reason for terminating the pregnancy will still be entitled to travel abroad to seek an abortion, just as she is entitled to do so now (see more here).

The UN Committee on the Rights of Persons with Disabilities discourages states from passing laws which permit termination of a pregnancy only because the foetus has been diagnosed with a disability. However, it accepts that women should still have access to abortion where continuing with the pregnancy would expose them to inhuman or degrading treatment or where they are otherwise unable to continue the pregnancy for health or socio-economic reasons.

Further Reading:

NUI Galway Centre for Disability Law and Policy, Submission to the Citizens Assembly.

Letter to the Irish Times January 22 “The Eighth Amendment and Disability”

Enright and de Londras, Repealing the 8th, Postscript p.p. 99-101 and 137-141

24 thoughts on “What does the proposed new law say about disability?

  1. How do you explain the fact that 90% of Downs Syndrome diagnoses in Germany end in abortion when handicap is not a lawful grounds under German law. More precisely how do you stop the mental health ground being used for handicap abortions.

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    • We do not use the use ‘handicap’ and will instead use the word ‘disability’.

      We are not engaged in explaining statistical patterns in other countries. Decisions about either continuing or ending pregnancy are complex and vary from case to case. Instead, we provide answers about the law.

      In Germany abortion is permitted after 12 weeks to avert the risk of grave impairment to a woman’s health, which is defined as including potential mental ill-health related to a diagnosis of foetal anomaly. However, doctors must satisfy themselves that the woman’s health will suffer: the abortion cannot be given on the basis of a diagnosis of foetal anomaly or disability per se.

      In the outline of the law that the government intends to propose should the 8th Amendment be repealed, the health ground post-12 weeks will allow abortion only where (i) there is a risk of serious harm (as opposed to harm) to health, (ii) two doctors certify to this risk, and (iii) two doctors certify that abortion is the appropriate approach to take. This will be available up to viability only; once viability is reached the pregnancy can only be ended by live birth (exception: diagnoses of fatal foetal anomalies). Abortion outside of these legal restrictions will be a criminal offence (although the pregnant woman will never be criminalised).

      Thus, it would appear that the government’s proposals rely on medical professional ethics, regulation, and the law to ensure the appropriate application of the restrictions laid down in the proposed new legislation.

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    • Oh, don’t get me started on those Germans. They give 24 months parental leave to new parents which can be divided up between the mother and father, they have excellent healthcare with low waiting times for appointments and surgery, and don’t get me started on their public transport system.

      If enough people vote yes, we could end up living in a country like that (**shudders at the thought**).

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  2. Dear Prof. De Londras
    Thank you again for your reply. So would you concede that in Germany the Mental Health grounds has indeed been a back door to disability abortions. How do you suggest that this would not happen in Ireland if the prospect of a disabled child caused caused a risk of ‘serious harm’ to the mothers mental health in the opinion of two doctors?
    I think it is disingenuous of Yes campaigners to suggest that disability abortions could not be authorised by the prospective law.
    Thank you again
    RT8

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    • Hi. I see Fiona hasn’t had time to reply, so I will do it instead. Again, “mental health grounds” does not mean the same thing in all jurisdictions. Different countries regulate abortion differently, to reflect their own social priorities. It is very important to pay attention to the detail of the legislative text in all cases. You will find the full text of the German law in this bundle presented to the Joint Oireachtas Committee. http://www.oireachtas.ie/parliament/media/committees/eighthamendmentoftheconstitution/Leah-Hoctor—Supplementary-Material—European-Abortion-Laws.pdf. Now, I am sure you can read the text for yourself, and see the clear differences between the ‘risk of serious harm to mental health’ proposals under the Irish law, and the detail of s.218 of the German law. There is no ‘exceptional distress’ ground under the proposed Irish law as there is in Germany under s. 218(4). So, with respect, you’re comparing apples and oranges, and that comparison is likely to mislead people.

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  3. Dear Prof Enright.
    Thank you for your reply and apologies for not replying sooner but as you might imagine running a one man campaign eats up a lot of my time on many fronts. I think you have missed my point which is to note that the subjectivity of Mental Health as opposed to Physical Health is such that it can operate as ‘catch-all’.
    For example almost all abortions granted under the 1967 Abortion Act invoke Category C (Greater risk to health) and again almost always invoke Mental Health rather than Physical Health. Furthermore the British Two Doctor Test totally fails as a safeguard against a ‘catch-all’ as someone seeking an abortion only has to find two doctors in the whole of Great Britain willing to certify a ‘Greater Risk’ i.e. go Doctor Shopping (in practice the two GP’s who work for the abortion clinic). While the post-referendum proposal uses a stricter definition of the Two Doctor Test in that it can’t be two GP’s but the possibility of going Doctor Shopping and thus using the Mental Health grounds as a ‘catch-all’ remains.
    Bearing all this in mind the prospect of a disabled child will certainly place some Mental Health strains on the best of us, synergising this with the ability to go Doctor Shopping I fail to see a safeguard against Disability abortions by the back door. One way of mitigating against this would be to have the ‘Second Doctor’ come from a statutory panel of psychiatrists or other highly qualified medics, thus keeping some control. However the draft proposals do not go down this road unfortunately.
    Thus can you see my original point about how there is no apparent safeguard against Disability abortions via Mental Health in the governments proposals.
    On top of this any Disability that can be identified before 12 weeks can also be the unstated reason for abortions. While many disabilities cannot be detected this early new tests will be continually developed over time, furthermore political campaigning could see the 12 week limit raised without referendum.
    Finally this creates the possibility or strong likelihood in my view of Disability abortions happening without a specific disability clause.
    I thank you again for taking the time to answer my query.
    RT8

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    • Hi again. We are also individuals working voluntarily. It would be good to know who you are, at some point.

      1) It is true that women terminating up to 12 weeks would do so for a range of reasons. We are not medical doctors, and so I won’t answer your question about diagnostic tests in detail. The Irish Institute of Obstetricians and Gynecologists and the current Master of the Rotunda maternity hospital have both addressed your point.https://www.irishtimes.com/news/ireland/irish-news/rotunda-master-says-not-a-given-prenatal-diagnosis-leads-to-abortion-1.3353475 https://www.irishtimes.com/news/ireland/irish-news/foetal-abnormality-rarely-seen-by-12-weeks-experts-say-1.3372222

      2) Under the Irish proposals, a woman will have to be certified for termination by 2 doctors after 12 weeks. One must be an obstetrician and the termination must be carried out in a hospital. Ireland is a small country – the opportunities for “doctor shopping” are limited. It would be more likely that a woman in that position would travel for a termination than that she would search for a doctor to circumvent the Irish law. So the comparison with terminations in the UK is, again, misplaced.

      3) Legislation can always change, but this isn’t a point ‘for’ either side. Legislation could be more or less restrictive, within the wide margin of discretion afforded to the legislature by the Constitution. There are plenty of examples worldwide of legislatures which decided to make their abortion law more restrictive – across the United States at state level, for example, or even in England and Wales where in 1990 the general time limit for access to abortion was lowered from 28 to 24 weeks. It is up to concerned citizens to hold their politicians accountable for legislative decisions – pro-life activists in Ireland have had considerable success in this respect.

      If you are going to keep sending us questions at this rate, I really would encourage you to read the actual Irish proposals- they are publicly and freely available. http://health.gov.ie/wp-content/uploads/2018/03/General-Scheme-for-Publication.pdf

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      • Dear Prof. Enright
        Thank you again for your rapid reply, I am currently submitting articles to the main newspapers so hopefully you will read one of them in the next few weeks.

        On point 1 I feel Prof. Boylan is being specious in this regard as today a Downs Syndrome test can only just be completed before the 12 week limit. However new tests and faster tests will be developed over time to detect disabilities and there won’t be a new referendum each time said newer and faster tests become available.

        On point 2 I would concede that with a much smaller pool of Obstetricians to pick from it would be much easier to keep control in public hospitals than in Great Britain, however if in future private abortion clinics are allowed carry out second trimester abortions and hire their own Obstetricians then that control would be lost again.

        On point 3 the issue will be as you and Prof. DeLondras have pointed out what the Supreme Court makes of the implied rights to an abortion in the rest of the constitution. Given that the recent judgment found that the rights of the unborn are limited to article 40.3.3 its removal will mean the unborn have no recognised rights in the constitution, which makes the issue of implied rights to an abortion even more pertinent. Could a law that forces a woman to care for her disabled child be incompatible with the implied abortion rights yous have identified?

        I thank you and Prof. DeLondras again for your contributions but I don’t feel yous are seeing the longer term picture of the potential consequences of a Yes vote next month. The proposed legislation could be liberalised at any time under pressure from abortion campaigners, European Union etc.
        In my view disability abortions are very much part of that longer term picture as the safeguards just are not there. Had the government chosen to seek to amend article 40.3.3 rather than remove it completely these concerns about disability abortions could have been guarded against.
        As it stands the only way to certainly rule out disability abortions is to vote No next month.

        Thank you again
        RT8

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      • We are. We’re just busy. I should say we are responding to you in good faith, in an effort to provide public legal information, and have not consented to be part of your research process for any published work.

        1. You may feel Peter Boylan is being specious. A non-invasive scanning test can currently be done at 9-10 weeks. Even though these tests are highly developed now, they must be followed up with an invasive confirmation test in order to receive an actual diagnosis. A positive scanning result is not a diagnosis. And as the IOG said, the scanning tests are inaccessible to a majority of women in Ireland right now. If any of that were to change – in terms of the use of those tests or advancement in their capacity to diagnose – with a significant impact on the number of children being born in Ireland with particular conditions, it would be open to the Oireachtas to reform the law to address that. However, international best practice is to supplement legal regulation with high quality information and decision-making support for parents, and strong socio-economic supports. Banning pre-natal diagnostic tests would be problematic because parents and hospitals use them to prepare for the birth of children with particular vulnerabilities.
        2. There is nothing in the current proposed legislation to say that the government will become dependent on private clinics, but even if such clinics were established they would be subject to Irish law.
        3. We have not identified any ‘abortion rights’ in the constitution. Post-repeal restrictions on abortion access may breach some of a woman’s existing constitutional rights, but some such breaches may be justified in the interests of the common good. In my view, the Oireachtas can advance sound constitutional justifications for its decision to omit a disability ground from the legislation. Disability grounds are also incompatible with current international human rights law.

        Women already travel to terminate pregnancies after non-fatal diagnoses, particularly where a complex and serious diagnosis means that the baby’s quality of life would be very poor. Rhona Mahony told the Joint Oireachtas Committee that of 9000+ births in the NMH, 1000 women have the scanning tests, 400 receive a “positive” diagnosis and only 60 travel for termination. Nevertheless “ruling out disability abortion” is not an option under our constitution, even at the present time, precisely because women have a right to travel.

        From a human rights perspective, I personally could not stand over proposed legislation that I believed would have the effects you are suggesting.

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      • Dear Prof’s DeLondras, Enright
        Sorry for not getting back to yous but as I said running a one man campaign is time consuming. Let me assure you I am not using these conversations for researching a published work I am just coming at this as a Data Scientist and Libertarian who is interested in hearing the views of law professors in this area. The articles I publish will not refer to these conversations.

        I think you have misunderstood me on question 1:
        On your headline you say ” The government’s proposed law will not allow a pregnancy to be terminated purely because the foetus will be born with a disability” however any disability that can be identified/indicated even if non-definitively could be the unstated reason a woman seeks an abortion before 12 weeks. Thus I believe you should revise this headline to state that “The government’s proposed law will not allow a pregnancy to be terminated purely because the foetus will be born with a disability after the 12 week period”

        On point 2, given the state of the HSE and GP practices it is inevitable that private operators will have to be brought in unless the public health service in Ireland can be somehow miraculously fixed. The experience of Great Britain is that the private clinics can hire their own GP’s who can use the vagueness of Ground C to always authorise an abortion. Thus what is to stop the vague definition of ‘Serious Harm’ being similarly taken advantage of by GP’s and Obs hired by the private operator in Ireland. I might also direct you to Prof. Boylans comments about how he would define a ‘serious’ risk to health. Thus I and many others can foresee abortion effectively being available on demand in the second trimester.

        On point 3, I am confused that you say there are no abortion rights yet you say there are rights that could be used to strike down abortion restrictions which sound an awful lot like abortion rights!

        Thank you again for taking these questions.
        RT8

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      • 1) We have already explained why we disagree with your take on that.
        2) It is by no means inevitable, but you should ask a doctor about the distribution of resources within the public health service. And as we have already explained, there is nothing like Ground C in the proposed legislation, so your analogy is misplaced. You are taking Peter Boylan’s comments out of context – it is entirely reasonable to assume that a woman would have some voice/input into decision-making if her health were at serious risk.’Serious harm’/’grave risk’ is a standard way of expressing the threshold for access to abortion in later pregnancy across Europe.
        3) This is a legal distinction – one, in fact, which is often made by pro-life legal scholars. A positive constitutional right to access abortion is distinct from a generic right to e.g. bodily integrity which might be affected by some kinds of restriction on abortion.

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      • Dear Prof’s
        Thank you again for your prompt replies.
        On Point 1 are you disagreeing with me based on a point of law or based on today’s limits of medical technology. If it is a point of law I would be delighted to hear your point.
        On Point 2 I accept the bar is set higher than Ground C but for me it is still sufficiently low for it to be a box ticking exercise as if you look at Ground E of the Abortion Act 1967 the application of ‘serious’ disability has become a box ticking exercise where the most trivial of disabilities such as a cleft lip of palate qualify as ‘serious’
        On Point 3 I would direct you Roe versus Wade where an implied right to an abortion was found by the majority of judges and it has been used to strike down almost all abortion restrictions. So whether the right is explicit or implicit the outcome can be the same.
        Thank you again
        RT8

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      • Point 1 – Law – we have already explained our analysis.
        Point 2 – We disagree. If this is a determinative issue for you, you should vote no.
        Point 3 – It’s not accurate to say that Roe v Wade has been used to strike down almost all abortion restrictions in the US. Roe v Wade allows states to adopt a periodic approach to abortion regulation – imposing substantive restrictions in later pregnancy. In earlier pregnancy, under the more recent decision in Whole Women’s Health v Hellerstadt (which clarifies Roe v Wade and Planned Parenthood v Casey), a state may impose restrictions on abortion access if the law (i) furthers a valid state interest (ii) confers benefits that outweigh burdens and (iii) is based in credible evidence. Most states in the US have legal restrictions on abortion access https://www.guttmacher.org/state-policy/explore/overview-abortion-laws sets out a summary of current state-level abortion laws. Also, for the avoidance of doubt, Irish constitutional law is not U.S. constitutional law.

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      • Dear Prof’s Enright, DeLondras
        Thank you again for your replies, if your definitive response on point 1 is that of April 18th at 3:27 pm then you haven’t explained how disability cannot be the unstated reason in the 12-week window where no reason has to be stated. You have argued well about how today’s medical technology makes it unlikely but if that was my issue I would have fielded the question to Peter Boylan himself. Sure the Oireachtas ‘could’ change any law at any time but the proposed alternative is clear for the referendum.
        In short if any reason will do then why can’t that reason be (suspected) disability.
        Thus I feel you should amend the headline of this article.
        Thanks again as I know myself how draining it is to run your own campaign
        RT8

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      • No reason would need to be stated up to 12 weeks. Women who have been raped, whose health is at risk, who are terminating for socio-economic reasons etc would not need to state that reason. In practical terms, how would you ensure the law wasn’t being used for disability-related reasons? Would you prohibit any woman who had had a screening test from accessing an abortion? Would you prohibit use of any screening test before 12 weeks? Would you require all women to undergo a screening test, and eliminate all those who tested positive? Would you prohibit women with particular genetic histories from accessing abortion? We’re not amending the headline of the article – the headlines are designed to be accessible to people who have particular questions.

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      • Dear Prof’s DeLondras & Enright
        Thank you again for your prompt reply. I take it from your latest response that you have conceded the point that (suspected) disability alone could be the unstated reason up to the 12 week limit. Thus your headline statement:
        “The government’s proposed law will not allow a pregnancy to be terminated purely because the foetus will be born with a disability.”
        is not completely accurate, thus I urge you to amend the headline to:
        “The government’s proposed law will not allow a pregnancy to be terminated after the 12 week period purely because the foetus will be born with a disability.”

        Disability abortions can be easily prevented by removing the 12 week no reason clause and replacing it with a delineated list of exceptions like there is after the 12 week period.

        Thank you again
        RT8

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      • Dear Prof’s DeLondras and Enright
        I believe Prof’s Rhona Mahony and Peter Boylan have confirmed today on RTE that Downs Syndrome can be screened for at 99% accuracy at 10 weeks gestation which would give ~2 weeks to avail of the 12 week limit.
        RT8

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      • Dear Prof’s Enright, DeLondras
        I think we have reached a point where one of us is right and one of us is wrong on this point. Either (suspected) disability abortions will be allowed or not in the 12 week window. If you can show me on a point of law that I am wrong I am happy to then admit that I am wrong and concede the point. However if you cannot show me on a point of law that I am wrong then I suggest that you amend the headline to say: “The government’s proposed law will not allow a pregnancy to be terminated purely because the foetus will be born with a disability after the 12 week window”.
        I await your response and given that the referendum is fast approaching I think it is fair to all observers of this website that you respond quickly.
        Yours sincerely
        RT8

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  4. Dear Prof’s Enright & DeLondras
    I am sure you are aware there is a massively important TV debate on Monday night and abortion on the grounds of disability is a big issue for many voters especially in the context of the ‘own goal’ by Rhona Mahony and Peter Boylan this week. The referendum date is also fast approaching so I think it is urgent upon you to either refute my analysis on a point of law or update your website.
    To clarify:
    1- Proposed new law allows abortion for any reason up to 12 weeks.
    2- Pregnant woman takes Downs Syndrome test at 9 or 10 weeks.
    3- Test comes back with very high probability of Downs Syndrome.
    4- Woman doesn’t want disabled child.
    5- Woman requests abortion from licenced GP.
    6- Three days later she is granted abortion.

    If you can point out an error in my analysis please do so and I will concede the point. Otherwise it is urgent for you to update your website to say: “The government’s proposed law will not allow a pregnancy to be terminated purely because the foetus will be born with a disability after the 12 week window” or another form of words to that effect.
    I also feel you should provide a definitive response to this in good time for Monday nights debate.
    Thank You
    RT8

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