February 2002
Let us hope that readers have not lost my last article on the Abortion Referendum because the Referendum Commission has said that due to time constraints, explanatory leaflets cannot be sent to all houses in the country. There were no copies of the Protection of Human Life in Pregnancy Bill 2001 available in Leinster House today (18.2.02) either so my apologies for being unable to send a copy to those who requested one.
Below is the remainder of Second Schedule of the Bill which will be inserted into the Constitution if the Referendum is passed - I covered Section 1 to 3 in the last article
Section 4 Travel and information
(1) This Act does not limit freedom to travel between the State and another state or freedom to obtain or make available in the state, in accordance with conditions for the time being laid down by law, information relating to services lawfully available in another state.
(2) This Act does not operate to restrict any person from travelling to another state on the ground that his or her intended conduct there would, if it occurred in the State, constitute an offence under section 2 of this Act.
Section 5 Orders
(1) In this Act (other than in section 7), "an order" means an order made by a member of the Government authorised in that behalf by the Government.
(2) An order may make such provision relating to the making, keeping and confirmation of records (including records of opinions) of medical procedures referred to in section I of this Act as may be considered by the member of the Government concerned necessary or appropriate for the purposes of this act.
(3) The Government shall ensure that such orders are made from time to time as are necessary to enable this Act to have full force and effect.
(4) An order may be amended or revoked by order.
(5) Where an order is proposed to be made, a draft of the order shall be laid before each House of the Oireachtas and the order shall not be made unless a resolution approving of the draft has been passed by each such House.
Section 6 Repeals
Sections 58 and 59 of the Offences against the Person Act, 1861, are hereby repealed.
Section 7 Short title and commencement
(1) This Act may be cited as the Protection of Human Life in Pregnancy Act, 2002.
(2) This Act shall come into operation on such day not earlier than 2 months after the date of the passing as the Taoiseach may appoint by order.
The main effect of Section 4 is to allow women to travel for abortions. It is unclear if a child who is pregnant either through incest or rape and in the care of a Health Board will be able to travel. In the C case the girl was allowed to travel because of the risk that she would commit suicide. If this is removed as is suggested in Section (1) (2) the situation is unclear.
As Professor Risteard Mulcahy said to me "It is humiliating to see us on the international scene doing everything possible to ensure that an abortion can take place once it is not on this island " and I agree with him. The Minister for Health and Children has pledged, it is reported, that money will be available for Health Boards to take such children abroad.
I have seen the legal advice to the Medical Defence Union regarding this Bill and feel all doctors and especially obstetricians should take note of it. The rationale behind Section 5 (2) of the Bill is unclear as pointed out by the Medical Defence Union's legal advice. Of course doctors should keep good records but one cannot, as the advice said, rule out the possibility that a third party who still has misgivings about abortion for any reason will not take a case against a medical practitioner challenging the "reasonable opinion" of the doctor. It is not clear either if the doctor might be ordered to make his or her records available for inspection by third parties (such as the Gardai) and this of course would be an attack on doctor/patient confidentiality. A member of the Government in the future (and not just the Minister for Health) could order an inspection of such records for their "confirmation" and this includes records of opinions as one can see from the legislation. What if it is decided by that Minister that the reasonable opinion of the doctor was wrong - does that doctor face 12 years in gaol?
Remember finally, this legislation or part of it can only be repealed by another referendum. In 1983 an Amendment of forty three words caused us great problems - what on earth could this do! My advice in the face of such uncertainty is to vote "No".
Senator Mary Henry, MD
