Dear Irish politicians,
I have been keeping up to date on progress toward abortion legislation and I feel I must warn you that creating overly complex and systemic medical ‘safe guards’ to ensure that pregnant people do not ‘abuse’ suicidal ideation1 to access abortion will likely be unworkable, onerous (not only for the medical staff charged with this duty, but the poor woman forced to defend herself before a panel of 6, 12, who knows?) and is inhumane. I suggest you consider the New Zealand experience and the barriers we have erected to women being able to access a necessary reproductive health service (mainly because I assume you care more for the lives of women like Savita and the 4000 or so pregnant people who have to travel every year, than appeasing a virulent and well-funded anti-choice movement).
I want to be clear that when I discuss the barriers of the certifying consultant process2 in New Zealand, I am not attacking the doctors and medical professionals who are forced to follow a broken system. Far from it, these are the people who have taken a bad law and ensured, to the best of their ability, that women are able to access an abortion when they need one.
Instead it is often politicians who let themselves off the hook by devolving responsibility to these medical professionals, asserting that medical judgment, which are assumed to be based solely on scientific principles of rationality and fact, are better placed to make decisions about women’s bodies than women. However, this is only happens after said politicians enact legislation that is aimed at the ‘middle ground’ (read not rocking the boat). Here is what happens when political appeasement is the goal.
In 1977, when the Contraception, Sterilisation and Abortion (CS&A) Act set out a process of two certifying consultants signing off on all abortions based on the limited grounds as outlined in the Crimes Act (1961), it was passed in a political context of conservative white men politicians, many of whom had close connections with the anti-choice movement. The Royal Commission, with a mandate to investigate abortion in New Zealand and provide recommendations to the then Government, was similarly influenced by the anti-choice lobby, with its deep pockets and connections to key, sympathetic politicians. Alison McCulloch’s new book, “Fighting to Choose” (sorry folks, you’ll have to wait until 1 May for it to reach the book shelves, but see here for more info), highlights how medical evidence and pro-choice advocates were sidelined by the Commission. The latter, when they were given space to express their views, were subject to hours of interrogation and framed as radicals, out of touch with the majority of New Zealanders’ views.
The recommendations that eventuated were convoluted and reflect the skewed anti-choice ‘evidence’ that was considered by the Commission. As McCulloch points out, the Commission’s report certainly was not framed around the best interest of the pregnant persons involved. Thus, the law as it stands states that a woman must be approved by two certifying consultants, who assess her claim against the Crimes Act, before an abortion can be performed. The woman usually presents to her GP, who then refers her on down the chain of command. Often this entails multiple appointments , travel, and time. This process is not short on barriers and often waiting times from first appointment to the termination is 2-3 weeks – a long time when best medical evidence shows the earlier the termination the better (usually before 8-9 weeks gestation).
Law and practice have a tendency to drift apart when the rubber hits the road. While the intention of the CS&A was to limit abortions, force women to ‘prove’ their right for an abortion and provide sufficient ‘medical safe guards’, only the latter two have really eventuated. Why? Well, many certifying consultants have chosen to define ‘health’ in a holistic manner, with 98% (as of the 2011 Abortion Supervisory Committee annual report) being performed under the ground of mental health. The anti-choice element in New Zealand call this a de facto regime of ‘abortion on demand”. I call it a sound argument for law reform as no woman should have to claim issues of mental health for accessing a necessary medical service.
Abortion in New Zealand is an incredibly safe procedure and the medical statistics over the last 30 odd years highlight that no woman has died from an abortion. In that respect, good safe guards do exist and work. However, barriers to abortion remain and it is not an easy or straightforward process to obtain one. It is certainly not one in which women are allowed the freedom to exercise their right to bodily autonomy.
I tell you the story of abortion in New Zealand because I see Ireland falling into similar pitfalls. While not having access to the actual proposed bill (and basing my comments on media reports about what is proposed), what I envision will happen is this law will create a two tier system – those that will be sympathetic and take a ‘holistic’ approach to allowing for abortion under the heading of suicidal ideation and those that will not. Instead the latter will use their medical authority to deny women an abortion or worse they will their powers to section women and force them to carry the pregnancy to term. This will likely create questions of fairness and consistency across Ireland, with women (I imagine) copping quickly to those doctors who will be kind and provide them with access. Or women will be too terrified to go before these panels and continue to travel overseas.
This assumes two key elements that will make the law workable; one that the psychiatric profession changes its mind and support the law. At the moment, this body of professionals does not want to be the scapegoats for what they see as a bad law. If these medical professionals are unwilling to take part and the Government steams ahead with setting out that a psychiatrist must be part of the panel(s), this will mean that no woman will be able to claim their right under the law. If this is the case, the Government will likely have to return sooner rather than later to the legal settings for an abortion, either because another woman has died or injured herself or brought a case against the state.
The second part will revolve around the autonomy of the abortion panel’s decisions. What we have learned in New Zealand is that because the decisions of certifying consultants have not been scrutinised or open to debate, medical professionals are able to make their decisions freely. Here this has usually meant greater access because doctors are not looking over their shoulders wondering if their decision will be questioned. However, how this might play out in Ireland could be concerning: either it could be used to ensure doctors are free to make sounds and empathetic decisions or it could be open to abuse by anti-choice doctors who seek to force the woman to carry the pregnancy to term.
Luckily there is away around all of this. Scrap the idea of abortion panels and setting a legal framework that insists women need ‘safe guards’ against themselves. I have another novel idea: how about instead of turning psychiatrists into ‘social police’ and putting the accountability for law reform on medical professionals you do something radical – trust women to make these decision for themselves.
Dr Morgan Healey
National President, ALRANZ
For further information on what is happening in Ireland, check out the following:
Suicidal ideation is a medical term for thoughts about or an unusual preoccupation with suicide. See link for more http://en.wikipedia.org/wiki/Suicidal_ideation
The CEDAW Committee’s concluding comments on New Zealand’s 7th periodic report (released in July 2012) recommends that the state examine their laws and practice to ensure ease of understanding and women’s right to autonomy. As Ireland is a signature to the CEDAW Convention, I’d hazard a guess that shifting from restrictive laws to incredibly complex laws within the confines of the X Case won’t find much joy before the Committee.