Proposed Protection of Conscience Laws
In response to criticism following the death of
Savita Halappanavar the Irish government
has published an early draft of the proposed abortion law, the
Protection of Life During Pregnancy Bill 2013. It is
technically called a draft "heads of bill." Each "head" corresponds to
what is likely to become a section of the final bill, but the wording and
content of each head have not been settled.
The protection of conscience provision
(Head 12) is provided here in full within an abbreviated presentation of the General
Scheme. Paraphrased parts of the bill are in italics. Mouseover
the red text to see government comments accompanying the text. [Full text of
The "heads of bill" was superseded in June, 2013, with the official,
which became law in July,
Protection of Life During Pregnancy Bill 2013
Head 1: Interpretation
(1) In this Act -
. . . means implantation in
the womb of woman;
"medical procedure" includes the provision of any drug or any medical
. . . means an opinion formed in good faith which
has regard to the need to preserve unborn human life as far as practicable;
. . . as it relates to human life means following implantation
until such time as it has completely proceded in a living state from the
body of the woman. . ."
Head 2: Risk of loss of life from physical illness, not being a
risk of self-destruction
This part of the Act provides that two medical practitioners may
that an abortion is required because:
" (i) there is a
of loss of the pregnant woman's life other than by way of self-destruction,
"(ii) in their reasonable opinion this risk can be
averted only by that medical procedure."
Head 3: Risk of loss of life from physical illness in a medical
This part of the Act provides that a medical practitioner may carry out
a medical procedure (including abortion) that may cause the death of an
unborn child when
"(b) he or she in good faith believes that there is an
of loss of the pregnant woman's life other
than by way of self-destruction , and"
"(c) the medical procedure is, in his or her reasonable
opinion, immediately necessary to save the life of the woman.
Afterward, the medical practitioner is
the need for the procedure.
Head 4: Risk of loss of life from self-destruction
Where a woman is threatening to commit suicide if abortion is not provided,
the bill requires that she be examined by one obstetrician/gynaecologist and
two psychiatrists, who must "
"(i) there is a
of loss of the pregnant woman's life by way of self-destruction,
"(ii) in their reasonable opinion this risk can be averted only by that
The Act also requires that at least one of the three members of the panel
must consult the woman's general practitioner.
Head 5: Medical opinion to be in the form and manner prescribed by the
The Minister of Health is authorized to determine the content of the
certificates required by the Act.
Head 6: Formal Medical Review Procedures
Head 7: Review where risk arises from physical illness, not being a
risk of self-destruction
Head 8: Review in case of risk of loss of life through
Head 9: General provisions for Commitee
Head 10: Formal medical review reports to Minister
These sections provide for an appeal procedure (medical review) when a woman
has been denied an abortion in the case of physical illness not involving a
threat to commit suicide (Head 2), or of a threat to commit suicide (Head
4), and for annual reports to the Minister of reviews conducted.
Head 11: Notifications
The person in charge of a facility where abortions are performed under the
Act is required to notify the Minister of Health within 28 days of the
procedure. Names of the women having abortions are not to be included
in the notifications.
Head 12: Conscientious Objection
(1) Nothing in this Bill shall be construed as obliging any to carry out, or to assist in carrying out, a
lawful termination of pregnancy.
(2) Nothing in subhead (1) shall affect any duty to participate in
treatment under Head 4.
(3) No institution, organisation or third party shall refuse to provide a
lawful termination of pregnancy to a woman on grounds of conscientious
(4) In the event of a doctor or other health professional having a
difficulty in undertaking a required medical procedure, he or she will have
a duty to ensure that another colleague takes over the care of the patient
as per current medical ethics.
Article 9(1) of the European Convention on Human Rights states that:
"everyone has the
right to freedom of thought, conscience and religionâ€¦'. An individual's
right to conscientious objection is provided for in most ethical guidelines
and has existed with good reason for many centuries. The Medical Council Ethical Guidelines
'10.2 If you have a conscientious objection to a course of action, you
this to the patient and make the names of other doctors available to
10.3 Conscientious objection does not absolve you from responsibility to
a patient in emergency circumstances.'5
Similarly, the Code of Conduct for each Nurse and Midwife makes
reference to an
entitlement to conscientious objection that may be relevant to
However, an individual's right to conscientious objection is not
absolute and often has
limitations. This is because the right to conscientious objection must
be balanced against
someone else's competing rights, for example, the right to life in the
case of a medical
emergency. The balance is reflected by the provisions of the European
Human Rights in which freedom of conscience is qualified by Article
9(2), "Freedom to
manifest one's religion or beliefs shall be subject only to such
limitations as are prescribed
by law and are necessary in a democratic society in the interests of
public safety, for the
protection of public order, health or morals, or for the protection of
the rights and freedoms of others".
Subhead 1 provides a right to conscientious objection but clarifies that
this right only applies to medical and nursing personnel and
pharmacists. It is adapted from of the
Twenty-fifth Amendment of the Constitution (Protection of Human Life in
Pregnancy) Bill 2001 as passed by DÃ¡il Éireann. The effect of this
provision is that a medical or other health professional will not be
obliged to carry out a procedure to which he or she has a
conscientious objection, even though it may not constitute an offence
under the Bill. In the event of a doctor or other health professional
having a difficulty in undertaking a required medical procedure, he or
she will have a duty to ensure that another colleague took over the care
of the patient as per current medical ethics.
5. Medical Council: 2009, pg. 16.
6. An Bord Altranais, 2000.
Head 13: Travel and information
No restrictions are to be placed on travel to other countries for
abortion or the provision of information concerning abortion legally
Head 14: Regulations
Head 15: Regulations respecting certification of opinions referred
to in this Act.
Head 16: Regulations respecting notifications to the Minister
Head 17: Laying of regulations before Houses of the Oireachtas
Head 18: Repeal and Consequential Amendments
Sections of the Act provide for regulations to be issued and amendments
to other laws to ensure the consistency of the law.
Head 19: Offence
(1) It shall be an offence for a person to do any act with the
intent to destroy unborn human life.
(2) of an offence under this head
is liable on conviction on indictment to a fine or imprisonment for a term
not exceeding 14 years or both . . .