Draft Irish Abortion Law: Protection of Conscience

Testimony before the Joint Committee on Health and Children

Houses of the Oireachtas (Tithe an Oireachtais)

21 May, 2013

Redacted Agenda:

• Medical Law
• Constitutional Law
• Medical Ethics

Medical Law

Redacted Witness List

• Dr. Simon Mills
  Lecturer in Medical Ethics at the Royal College of Surgeons of
  Ireland from 2004 until 2011 [Written Submission]

• Ms. Caroline Simons
  Solicitor, Legal advisor to pro-life campaign

• Mr. Tony O'Connor
  Senior Counsel

Dr. Simon Mills: . . . I refer to head 12 which deals with conscientious objection. I dealt with a number of matters in my written submissions. One issue that arises is how extensive is the right of conscientious objection, in particular to what extent, for example, conscientious objection arises where an opinion is sought; to what extent there is an obligation on an individual to notify either the existence of a conscientious objection or of previously publicly expressed views of which a patient may not be aware. It may be there is no such requirement but there is a necessity at least to consider the balancing of rights involved in freedom of conscience on the one hand and access to a constitutionally available right on the other.
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Ms. Caroline Simons:  Members will see that in my written submission I have dealt with the requirements of the European Court of Human Rights decision in the case of A, B and C v. Ireland and the requirements of the X case, and then I have looked at the law regarding experimental treatments. Finally, because it is so important, I have looked extensively at the law on conscientious objection internationally. Having said that, the law on conscientious objection should have no relevance whatever where we are talking about doctors wanting to practice good medicine and wanting to avoid something which has not been proven to be in any way useful to the management of a patient in circumstances where suicide is an issue. I shall leave it at that and welcome questions the committee raises.
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Deputy Billy Kelleher:   . . . Dr. Mills also mentioned a conflict of interest in the panel. Is that a conflict in the context of conscientious objection or is it a conflict for some other reason? He referred to being obliged to declare a conflict of interest. I seek clarity on the matter.
[P. 6, accessed 2013-05-27]

Mr. Tony O'Connor:  Senator van Turnhout mentioned the obligation of a doctor to explain a conscientious objection. This legislation does not provide for that, but it is my understanding that the evidence already before the committee is that in its code of conduct the Medical Council has provided that it should be. The new code is to be introduced with the new Medical Council and that point should certainly be made to the Medical Council.
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Ms. Caroline Simons:  . . . Senator van Turnhout's question concerned who could exercise the right to conscientious objection, whether the woman could, and whether she would be entitled to know if a doctor has a conscientious objection to the treatment she is requesting. I agree that she is entitled to that information. However, I am a little wary of the suggestion that has arisen in the discussions over the last few days that there might be some kind of a list made of conscientious objectors. I feel that is a little sinister. I do not like the sound of that.

I do feel that the list of people to whom conscientious objection is afforded under the Bill is very limited. It is just given to midwives and doctors.
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Ms. Caroline Simons: We must appreciate that under Article 9 of the European Convention on Human Rights, conscientious objection is not something that is limited in the sense that freedom to manifest religion is. I found the explanatory notes a little confusing in that regard and I will tell members the reason. Under Article 9.1 of the European Convention on Human Rights, the freedoms are expressed in an absolute way. These are the freedom of conscience, thought and religion, and when one then considers Article 9.2, the freedom to manifest one's beliefs and one's religion is limited. However, there is no express limitation in respect of conscience. Conscience is something that is, if one likes, bigger than any religious objection one might have. One need not have any religion in order to have a conscientious objection. A religious objection is something that comes from the tenets of a particular faith of which one is a follower, whereas conscience is a different thing altogether. Consequently, it is something that is very important and it is important that it be protected in the highest and most noble way for people who have a difficulty, particularly in the area of abortion, which we have found throughout the world in any legal text one might look at in this regard.

I suggest members extend the application of the right to conscientious objection not just to doctors but to trainee doctors, trainee nurses, pharmacists and anyone else who could be involved with the assisting or facilitating the process by which an abortion is carried out. I refer members to a decision that was made in recent weeks in the Doogan case. It is a decision of the Scottish Court of Session in which two midwives were relieved of any obligation to supervise nurses who were participating in abortion on the basis of their own conscientious objection. This is a good example for us to follow and I will leave it at that for the present.
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Mr. Tony O'Connor: Deputy Mitchell O'Connor asked about conscience. I reiterate my earlier remarks, the guide of the Medical Council requires doctors to disclose a conscientious objection to the patient. Senator van Turnhout raised this issue as well, so perhaps that message can be sent out. It should be addressed but it am not sure it is appropriate for primary legislation.
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Dr. Simon Mills:  I will briefly address the question put by Deputy Mary Mitchell O'Connor because she is my local Deputy and I want to keep her on side. There is a requirement for a balancing act. On the one hand, one has the right of the doctor to his or her conscientious objection while, on the other, one has the right of the woman to exercise her right to obtain a termination in certain circumstances.

These rights must be balanced in every circumstance. This goes back to a question asked by Senator van Turnhout on whether there would be a requirement to disclose at the outset of a doctor-patient relationship. While I do not believe that would be the case, the disclosure obligation arises when a difference arises between what the patient wants and what the doctor is prepared to do. There is a tension here but it is one that has been resolved in many other jurisdictions.
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Deputy Catherine Byrne:   This Bill is about conscience and the judgment we will make having listened to the evidence over the course of the committee's hearings. The witnesses are all experts in medical law. I ask them to answer with a "Yes" or "No" to be helpful to me and others outside the proceedings. Will the passing of the Bill result in widespread termination of pregnancies? Will the Bill legalise the killing of babies?
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Deputy Terence Flanagan:   My next question is a general one for all of the panellists and I ask that they give me a "Yes" or "No" answer. The question relates to conscientious objection and head 12. Earlier today the patient was mentioned, as were the doctors and midwives, in the context of conscientious objection. Does an institution have a right to conscientious objection, as endorsed by the Council of Europe?
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Deputy Bernard J. Durkan:   To what extent must the legislators and the courts have regard to the decision of the Supreme Court in the X case regarding the degree to which conscientious objection can prevent particular procedures or treatments from being made available to women or unborn babies?
[P. 14, accsessed 2013-05-27]

Ms. Caroline Simons: Because it has not been asked before I would first like to respond to Deputy Flanagan's question on the right to conscientious objection of institutions. I refer to page 18 of my written submission wherein I point to a number of cases of the European Court of Human Rights which deal with that very issue. In one case, Rommelfanger v. The Federal Republic of Germany , the court held that a hospital was entitled to dismiss a plaintiff because he took ethical positions which were contrary to those of his employer. This would confirm that a hospital is capable in law of holding ethical positions. That case was then confirmed in Lambardi Vallauri v. Italy in which it was held that a Catholic institution can limit the rights and freedoms of other people in order to protect its ethos. I have also appended at the back of my written submission an extensive survey of the laws in the various states of the United States of America in relation to conscientious objection. Members will note that many of them do afford a right of conscientious objection to institutions. There is no difficulty at all in providing for that.
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Dr. Simon Mills:  As with Mr. O'Connor, Mr. Brady and Ms Simons, there is a limit to the number of questions that I can answer in the time available to me. I will start with Deputy Terence Flanagan's questions. He raised an interesting issue pertaining to conscientious objection by institutions. There is a tension in the Bill between the conscientious objection granted to individuals and the assertion that institutions are not entitled to conscientious objections. If no institution is entitled to a conscientious objection, what happens if every individual in that institution exercises a conscientious objection? It could possibly lead to the bizarre scenario of an add-on question at job interviews along the lines of how the applicant feels about the Protection of Life During Pregnancy Bill 2013. That is not necessarily an absolute tension and there may be flexibility in terms of the provision of medical services but it strikes me as a tension none the less. The Deputy and I did not agree about much during on the last occasion we discussed these issues but I think we can agree that head 12 creates a certain tension.
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Constitutional Law

Redacted Witness List

• Professor William Binchy
  Regius Professor of Laws, Trinity College, Dublin, 1992-2012 [Written Submission]

Professor William Binchy: Let us look at the way the debate and the discussion has developed. We have the privilege here of having with us a former Supreme Court judge, who was in the courts for many years and on the Supreme Court for a number of those years. It is worth examining what she said on the question of late abortions because the Government has said nothing other than that there is no problem. Let us examine what Mrs. Justice McGuinness has said in order to enlighten us in terms of the analysis here. Mrs. Justice McGuinness stated that she was confident that doctors would do the right thing. As I say, obstetricians would wish to do the right thing but if legislation constrains them to carry out an abortion in circumstances where they do not wish to do so, their only strategy in those circumstances is conscientious objection.
[P. 27, accessed 2013-05-27]

Medical Ethics

Redacted Witness List

• Dr. Ciaran Craven
  Junior Counsel

• Dr. Ruth Fletcher
  Senior lecturer, Keele University School of Law [Written Submission]

Dr. Ciaran Craven: A good faith defence in those circumstances would, under the terms of the scheme of this Bill, provide an absolute defence irrespective of how that behaviour might be considered to be referenced according to a template of evidence based practice. A good faith opinion which is accepted without any reference or is unsupported by any reference to evidence based practice is regressive and potentially dangerous. It represents an old fashioned approach, one which no longer finds favour with the courts or the regulatory body.

In that context, the question of the number of individuals who are required to review any particular decision is of academic relevance and significance because it presents the same difficulty or weakness in so far as it is simply based on bona fides. Some of the particularly bad scandals we have had over the past 20 to 25 years or so would indicate there must be a limit to the deference that any society must give to what amounts to clinical hegemony. If one wishes to write a recipe for abhorrent behaviour or clinical hegemony then the way to proceed is to carry on along this line and provide for a defence based solely on good faith.

The question of conscientious objection does not arise. When it comes to proper ethical practice, particularly one which is evidence based, there can be no issue in relation to conscientious objection. The model with which any doctor here is faced when presented with a woman who is pregnant is that he or she has two patients. It does not matter what one's view is on abortion on a personal or political level. The factual reality is that when a doctor is faced with a pregnant woman he or she has two patients and a duty to both. It seems to me that this is not necessarily flagged with particular significance in the Bill.
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Dr. Ruth Fletcher: I thank the joint committee for the invitation to present. It occurred to me when passing my alma mater, Trinity College, that I have been teaching and researching in this area for almost 20 years. I am honoured to have this opportunity today.

For someone like me who works in the area of ethics and law the proposed legislation in terms of its recognition of a public obligation to implement an existing constitutional right to life-saving abortion, is welcome. However, it does not do enough to meet the ethical obligation to value women's lives. I will focus my opening remarks on four key points, including the definition of the unborn; the significance of risks under heads 2 to 4 justifying a termination of pregnancy; the limits on the rights to conscientious objection and the inappropriateness of criminalisation.

On the definition of the unborn, head 1 suggests that the unborn should be defined to mean following implantation, drawing on Roche v. Roche concerning frozen embryos as a precedent. With respect, the ethical arguments for choosing the point of implantation as a significant moment for legal protection of human life have not been adequately addressed. Given past failures to interrogate the assumed wrongness of abortion and, given the particular factual context of Roche v. Roche, it is open to this Legislature to consider more fully the criteria by which the unborn should be defined. The best ethical argument available to us from the literature and moral philosophy justifying protection of early forms of unborn life from implantation is that of potential personhood. This is the argument that from its earliest stages, subject to assistance from the pregnant woman, the embryo and foetus will go on to become a person. This future personhood argument does not apply, however, to foetuses with lethal abnormalities. Much to the anguish of their parents, they will die after birth and, therefore, they do not have a future as persons. That ethical argument does not apply in this case. Moreover, the State argued in D. v. Ireland that foetuses with lethal abnormalities could be excluded from the legal and constitutional definition of the unborn. Given that D lost her case before the European Court of Human Rights, partly because this was the argument made by the State and domestic remedies were not exhausted, there is, I would argue, more of a moral obligation on the Legislature to deliver on that argument and to address the definition of the unborn in a way that excludes foetuses with lethal abnormalities.

A second important aspect of this ethical argument for protection of early embryonic life from implantation is that it rests on the potential to become a person rather than on actual personhood. Potential personhood is best regarded as giving early embryonic and foetal life moral value because of what it will become in the future. This potentiality is obviously ethically significant but not as significant as the moral status we give to sentient forms of human life, namely, forms of human life that are developed to the point of feeling pain or pleasure. That is another stage of development with another set of capacities and another level of moral protection is due it. It is also not the same as the higher moral status which comes with full personhood, namely, the capacity to reason, communicate, will and act on our lives. A person's interest in her own bodily and moral integrity may justify limitations on the duty to sentient beings. This is because part of what makes life valuable is the person's ability to reflect on her life over time in particular factual circumstances and to make moral choices in that regard. That is part of what we value about being human.

To sum up, the following categories I would suggest provide a better ethical framework for the protection of unborn human life than does the assumed significance of implantation underpinning the legislation. First, pre-sentient embryonic and foetal life has moral value rather than moral status. It should be taken into account in moral decision-making but in itself does not impose harm-reducing duties on others. Second, sentient foetal life has moral status and may impose a duty on other persons to reduce harm to that sentient foetal life. Third, self aware personhood has a higher moral status than sentient life and this can limit the duties we owe sentient forms of life. They are the three ethical frameworks discussed in literature on medical ethics and law, which I believe will be helpful in informing the debate around protection of unborn life in its early stages.

My recommendation in this regard is that the unborn should be defined so as to exclude those foetuses which have lethal abnormalities and which will not have a future independent life. This possibility is open to the Legislature. It does have the power to do this. Also, the unborn should be defined to mean the foetus following the earliest moment at which sentience is possible.

On heads 2 and 4 and the risk of loss of life that justifies a termination of pregnancy, these heads provide for the kinds of risk to a woman's life which will legally justify a termination of pregnancy under the scheme. Others have commented more eloquently than I can on the need to remove obstacles in life-saving abortion care and on the troubling mistrust of women with suicidal ideation. I would like now to focus on the narrowness of the risk to life ground for termination of pregnancy. This ground has been drawn very narrowly, in part because it is assumed that Article 40.3.3° requires the life of the pregnant woman to be treated the same as the life of the embryo or foetus. Again, turning to ethical moral philosophy and legal theory, equality scholars have long argued that equality does not mean sameness rather ethical treatment requires the accommodation of actual differences between beings of all shapes and forms. Vindicating the life of the unborn with due regard to the equal right to life as directed by Article 40.3.3° should entail a full evaluation of all the interests that the woman's life entails, as well as all the interests of the unborn.
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Dr. Ruth Fletcher:  To state the issue concisely, women are conscious, sentient beings with moral viewpoints and responsibilities to other people. Foetuses are not quite that. They are the bearers of biological life and they will be future persons but this is not the same kind of life as that of the breathing, feeling and thinking woman. The current legal test treats women and foetuses as if they are the same, which I argue devalues both forms of life. It does not value their specificity and particularity sufficiently.

In regard to head 12 on conscientious objection, in principle the inclusion of a conscientious objection clause is defensible, subject to two conditions. First, it must be applied to individuals rather than to organisations and, second, it must only be applied in circumstances where alternative provision is available to a woman needing termination of pregnancy. If respecting human life includes respecting the personal choices which give life meaning, obviously health care practitioners may avoid performing health care that infringes their moral values. As the explanatory notes acknowledge, however, conscientious objection is not an absolute interest but is limited by the need to prevent harm to other people, pregnant women in this instance. In circumstances where a health care practitioner cannot arrange alternative provision without undue delay, the right to conscientious objection may be limited by the duty to prevent harm to patients. That is an issue of which we must be mindful in legislating for conscientious objection. This recognition of health care practitioners' consciences is worthy but it is inconsistent with the lack of legal recognition of women's consciences in this context. If conscientious objection to the provision of abortion is legally acceptable, as in head 12, so is an equivalent objection to sustaining the embryo or foetus within one's body. If a woman's conscience tells her that terminating a pregnancy is the best moral resolution of all the complex issues that arise in a particular factual pregnancy, her conscience equally deserves recognition and accommodation.
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Dr. Ruth Fletcher:  I will respond to Deputy Healy's question on the definition of the unborn and the possibility for having that definition exclude foetuses with lethal abnormalities. The main argument I was making in terms of having a brief to talk about the ethical arguments today, was that the future potential personhood of those foetuses unfortunately is not going to be achieved. In ethical terms, one is asking women to sustain pregnancies when a future independent life is not going to be achieved at the end of the day. It would be regarded as unethical in that sense in that one is imposing suffering when a good is not going to be attained out of that suffering at the end of the day.

On the legal point in D v. Ireland, given the ethical arguments and given the legal possibility of defining the unborn in a way that it would exclude foetuses who have these particular extreme conditions, which mean that they cannot survive birth, that would achieve the delivery of the State's argument in D v. Ireland which, in effect, meant that D lost her case before the European Court of Human Rights because she had not gone to a local court in Ireland. The European Court of Human Rights said that argument could have been made before a domestic court and therefore the case was thrown out. That gives the Legislature an added responsibility to act on behalf of those women given that this case was thrown out by the European Court of Human Rights on the basis of that argument because it believed in the possibility that Irish courts and the Irish Legislature could interpret Article 40.3.3^o in this way. The Legislature does have a moral obligation to pick that up as well.
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Dr. Ciaran Craven: My comments in relation to conscientious objection have to be taken in context. If the proposed Bill is reflecting proper ethical, legal consideration, then the question of conscientious objection simply cannot arise because it accords with both the ethical imperative and the legal imperative as I tried to make out. If, on the other hand, it is doing something different, then it may well be the case that a question of conscientious objection arises. Whereas the case has been made that conscientious objection is something of a personal right and is vested in individuals, it in itself, as we know from other jurisdictions, is capable of giving rise to all kinds of issues and difficulties when one steps one position more remote from the person who is involved in the procedure. In our neighbouring jurisdiction there have been significant problems in relation to it.

In so far as the question of whether this is a right which vests in institutions is concerned, again the courts recognise that no doctor or health care professional can be obliged to do something which he or she considers to be contrary to the best interests of the patient. Institutions do not have arms and legs or eyes and ears, they can only operate through the personnel they employ or engage. Trying to make a distinction between a right to object in relation to institutions, on the one hand, and individuals, on the other, is, in my view, not sustainable.
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Dr. Ruth Fletcher: Many rich questions were asked and I thank committee members for them. I will address the points on the definition of the unborn. The question was asked as to how the proposed definition of "unborn" would deal with the idea that it applied to those foetuses which are born and survive for one second. Another issue was whether it includes dead embryos or foetuses in the womb.

At present we do not have legal precedents on the definition of the unborn where a lethal abnormality exists. We do not have a direct legal precedent on this particular issue. Because we do not have this direct legal precedent the Legislature has the ability to define "unborn" in a way which would address these problems which have arisen through acknowledging the suffering of women and couples who have had to travel, even though the pregnancies will not survive. The view has been put forward that "unborn" could apply to foetuses which have survived even for one day, but I advocate we do not accept this view and that we define the unborn in a way which excludes foetuses which do not have the capacity to survive. This is not to say these foetuses have no value; I do not argue this at all. I am just arguing no good will be achieved by forcing a woman to continue a pregnancy when the child will not survive.

With regard to the point on the current definition of the unborn being overly broad and not excluding even dead embryos or foetuses, it is interesting that the institute raised this issue. Obviously as a medical matter it is seen as excluded and comes under the category of miscarriage. This is what is happening in medical guidelines and practice at present. We need a tighter definition of the unborn to exclude this possibility. We also have an opportunity to have a definition of the unborn which deals with foetuses which would survive through pregnancy but would not survive for long after birth.

The second interesting set of questions raised were to do with arguments around full personhood and how we distinguish between the foetus as sentient life and the born patient stripped of consciousness because he or she was in a crash or is a patient with Alzheimer's disease. We are not stating that full personhood is all that counts; we are saying there are three different forms of human life which all impose values and status. I distinguish between the example of a person with Alzheimer's disease or the person in a crash and sentient foetal life in the womb because a person with Alzheimer's disease or a person who has been stripped of consciousness through an injury had been sentient with a conscience and a will but through accident or disease this capacity has been lost. Because such people had this full personhood status it is possible to distinguish them from an earlier foetus which has not yet attained these capacities. Its ability to attain these capacities is dependent on a pregnant woman getting it to the point of attaining them. There are ethical ways in which we can distinguish these cases. The ways in which they are similar are obviously that in all cases families and loved ones are concerned about the value of these forms of life. If they are sentient forms of life they are similar in this way and this can impose duties on us. I am just saying they are not the same order of duties as full personhood would impose.
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Dr. Ciaran Craven: The questions asked by Senators Reilly, Byrne and Bacik relate to foetal abnormality and what the unborn is. I listened with interest to what Dr. Fletcher stated and it strikes me as quite a novel proposition that we can characterise life as having three different forms. Be this as it may, I am concerned about Senator Bacik's characterisation, and I am subject to correction on this, when she discussed the question of lethal foetal abnormality and whether it is something which ought to be protected. We must be very careful to note the mere fact a baby happens to have a lethal abnormality does not of itself mean it is wholly inconsistent with life. Generally it means it is inconsistent with prolonged life. It may well be a matter of minutes, hours, days or even months.
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