We have reproduced here the submission of Mrs Johanna Higgins (Mrs Higgins is a Barrister called to the Bar of Northern Ireland, The Republic of Ireland and England and Wales) which was commissioned by Precious Life to address the proposed Abortion Guidelines which the Department of Health in Northern Ireland (DHSSNI) intends to introduce. This submission was presented to the Department of Health after a meeting with officials from the Department.
If the Department persists in introducing these guidelines it will be a travesty for the unborn in the North of Ireland and for pregnant women and medical professionals.
Please contact us if you are a lawyer who would like to assist in the fight for life or if you require any further information on our work in this regard.
To see the Draft Guidelines which the Department of Health published for consultation click here.
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LEGAL SUBMISSION ON THE DRAFT GUIDELINES ISSUED BY THE DEPARTMENT OF HEALTH.
ON BEHALF OF PRECIOUS LIFE.
CRIMINAL ADMISSIONS OF A MEMBER OF THE COMMITTEE DRAWING UP THE GUIDELINES MAKES THE CONENT OF THE GUIDELINES UNSAFE.
It has come to our notice that the Secretary for the Royal College of Midwives, Ms Bredagh Hughes, has been, by her own admission, performing numerous illegal abortions in Northern Ireland.Her detailed admission appeared in an article by Liam Clarke on the front page of The Times newspaper, 23rd May 2004. Specifically Ms Hughes admits aborting disabled babies, an operation she says she knows is illegal in Northern Ireland. She also implicates other professionals by her comments.This matter has been referred to the PSNI for investigation.As Ms Hughes was involved in the process of developing the guidelines, representing, as she does, the midwifery profession , there is a grave shadow cast over the integrity of the guidelines as a whole. Ms Hughes was an attendee at the working group meeting. We suspect she was also part of an internal committee set up to inform the drafting of the guidelines. The Department is called upon to be frank as to what part was played by Ms Hughes and what action they intend to take. We submit that in light of this the guidelines be suspended.NO CONSIDERATION IS GIVEN TO THE CHILD IN THESE GUIDELINES.
Where is the unborn child, as a patient considered in these guidelines? The “mother” is consistently referred to as a patient. If she is a mother then there must be a child, who is also therefore a patient under the law in Northern Ireland.The Royal Collage of midwives was told by their Secretary, Ms Bredagh Hughes, through a press release;“I would urge people to read the document carefully and respond to points as fairly as possible. I am fully aware that there will be people who are in favour of a more or less rigid approach to abortion, but this is about real people and we need to remind ourselves that avoiding serious physical or mental harm to the mother or baby should remain at the heart of the discussion.”Where is the baby dealt with in the guidelines?
LAW
A SERIOUS ERROR HAS BEEN MADE IN THE LAW AT A VERY BASIC LEVEL.
The legal citations are at section 2.2 of the guidance. However the section 25(2) of the Criminal Justice Act (Northern Ireland) 1945 is omitted. This section gives a statutory presumption that all babies of 28 weeks gestation are “capable of being born alive” for the purposes of this act. The full text of the statue which constitutes the offence of Child Destruction is as follows:The provisions of s 25(1) and (2) of the 1945 Act provide as follows:‘(1) Subject as hereafter in this sub-section provided, any person who, with intent to destroy the life of a child then capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother, shall be guilty of felony, to wit, of child destruction, and shall be liable on conviction thereof on indictment to penal servitude for life;Provided that no person should be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother.(2) For the purposes of this and the next succeeding section, evidence that a woman had at any material time been pregnant for a period of twenty-eight weeks or more shall be prima facie proof that she was at that time pregnant of a child then capable of being born alive.’It can be seen that section 25(2) provides a statutory presumption that at 28 weeks gestation a child is capable of being born alive.The period before 28 weeks is then looked at in the light of evidence regarding capability of being born alive. (The judgement in the case of McDonald deals with this issue at some length and shall be referred to later in this submission.) There is no minimum gestation specified. This section of the legislation makes a mockery of section 2.9 of the guidance which states in error “The 1945 Act does not prescribe a time limit beyond which a child is capable of being born alive”. (guidance s.2.9)
How can the medical profession be expected to trust this guidance when an error of such magnitude has been made in a fundamental principle of the law? What are the implications for the rest of the commentary when this erroneous advice has been given?
It should not be forgotten that this offence carries a maximum life sentence.
It is submitted that the guidance is so flawed that it should be abandoned.
ASSUMPTION THAT THE BOURNE CASE IS INFALLIBLE.
R v Bourne 1939 provides the basis for the extension of the defence to child destruction to include the health of the mother within the meaning of the phrase “the preservation of life.”
“the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother.”
However Bourne is not binding precedent . It was a judgement at first instance and the judges comments were obiter dictum which is vulnerable to being overturned or distinguished in a subsequent criminal prosecution. The matter has yet to be tested.Regarding the matter of “health” being included in the defence Archbold 2006 at 19-136 refers: “a person…….will have a defence, if the act which caused the death of the child was done in good faith for the purpose of preserving he life of the mother or, possibly her health” R v Bourne (own italic)It is worth noting that the judge in Bourne also said:
“As I said at the beginning of my summing up, it (the defence) does not touch the case of the professional abortionist. As far as the members of the medical profession themselves are concerned and they alone could properly perform such an operation–we may hope and expect that none of them would ever lend themselves to the malpractices of professional abortionists.”
In the Bourne case the defendant was actually charged with an offence under the Offences Against the Person Act 1861. The judge in Bourne in fact borrowed the defence used from the Infant Life (Preservation Act) 1929 and applied it to the case before him. Glanville Williams, commenting on this, who although taking a liberal view on abortion himself, cannot help but note the impropriety of using a defence from one statue and applying it to another, stating: “It is true that the direction proceeded in some slight degree on the analogy of the child destruction statute, which contains an express exemption for the preservation of the life of the mother; but the exception in the one statute was not in itself a ground for reading a similar exception into the other.”
RELEVANT CASE AUTHORITIES OMITTED.
The guidance refers to no other criminal case law.Yet there is criminal case law which is very relevant to the matter of the offences discussed. In particular the case of R v McDonald Crown Court (1999) NI 150. In this matter Mr Justice Girvan gave a very interesting judgement regarding the meaning of “capable of being born alive”. The defendant was charged with child destruction after an assault on a pregnant woman. He was convicted by the jury and sentenced to 22 years in prison.
“On its true construction, s 25 of the Criminal Justice Act (Northern Ireland) 1945 extends the protection of the law to the unborn child not only at the actual moment of birth but also during the period when it is still in the womb, provided that the child is capable of being born alive. Where the accused’s intentional act has caused the death of an unborn child, the crime of child destruction will be made out if the Crown has established beyond reasonable doubt that the child or foetus destroyed by that act had a real chance of being born alive. The jury should be directed that the Crown must satisfy them beyond reasonable doubt that the foetus was capable of being born alive, and that in this context (1) “capable of being born alive” means that the child, at the point immediately before the accused’s act destroyed its existence, had the real chance of being born and of existing as a live child, that is to say breathing and living by reason of its breathing through its lungs (either naturally or with the aid of a ventilator) alone without deriving any of its living or power of living by or through any connection with the mother; and (2) the Crown does not have to prove that the child would have lived for any particular period of time provided that it is shown that the child would have lived even for a short period of time. If the jury have a reasonable doubt whether the foetus was capable of being born alive but conclude that the accused intended to procure a miscarriage, then they should convict him of that offence in accordance with s 26(2), and in appropriate cases it is desirable for the alternative count to be formulated in writing and added to the indictment.”Its hard to imagine a better authority than this on the particular point of “capable of being born alive” giving as it does a wide interpretation of the phrase. Why has this case then not been included in the guidance with reference to directing doctors?
LAW RESTRICTED TO THE MAIN OFFENCES. OTHER OFFENCES OMITTED FROM GUIDELINES.
Although the main offences are mentioned (in part ) within these guidelines, there are other offences which medical staff should be aware of for which they may become liable in the event of illegal abortions taking place or negligent practice, and also in relation to all abortion practice in Northern Ireland.
What follows is a consideration of some of these criminal offences:
a) Concealment of Birth An offence under section 60 of the Offences Against the Person Act 1861.
60“If any woman shall be delivered of a child, every person who shall, by any secret disposition of the dead body of the said child, whether such child died before, at or after its birth, endeavour to conceal the birth thereof, shall be guilty of a misdemeanour, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years…..”
In the case of R v Comer (1864) “a foetus no bigger than a mans finger, but having the shape of a child, was held to be a child within the statute.As there are no provisions for registration and burial of the child who has been subjected to an abortion procedure in Northern Ireland this offence may be being committed with every abortion procedure.A miscarried foetus requires certification from the hospital and a stillborn child over 24 weeks requires a death certificate.In England and Wales, from whence much of the other guidance is sought in the guidelines, the law requires that each abortion procedure be registered and this to be kept with the Chief Medical Officer. The information required includes the reason for the abortion, date and place. What was done with the foetus needs to be recorded. This information can be accessed by the police, the DPP and the Medical Council investigating negligence claims among others.
At the moment there is no control and no redress for patients or the proper application of the law in illegal cases.
We submit that some form of formal registration should exist for abortions so that the practice is completely transparent.
We would ask the department, separately of these guidelines, what they intend to do with regard to the above immediately?
b)Conspiracy
R v Whitchurch (1890) 24 Q.B.D 420 where two or more persons involved a woman could be indicted for conspiracy with the others to procure her own miscarriage. (woman will not be culpable if she is the victim)This is important in light of the advice given in the guidance at section 3 under Assessment.
c) Aiding and AbettingR v Sockett 1 Cr.App.R 101 CAAd)
Witholding InformationWhere a member of staff may be aware of illegality.
PROCURING OF ABORTIFICIENTS NOT DEALT WITH.
Abortificients such as the morning after pill should also be considered.
With regard to the case of : R. (Smeaton on behalf of SPUC) v Secretary of State for Health (Shering Health Care Limited and FPA as interested parties) (2002) 2 FLR 146 QBDWe note that the supply and or use of the morning after pill is only legal if administered before the pregnancy is implanted in the womb. What safeguards are in place to ensure there is no abuse in the administration of this abortificient after the pregnancy is implanted?
NO LEGAL GUIDANCE WITH REGARD TO REFERALS
According to a questionnaire collated by the Trust during the consultation for these guidelines hospitals in Northern Ireland are routinely referring women who do not fall within the legal perimeters of this jurisdiction to England for abortions.This is clearly an offence under section 59 of the Offences Against The Person Act 1861, where it is illegal to “procure” and abortion.We submit that this practice should stop without delay.
NO IN DEPTH LEGAL ANALYSIS OF THE LAW
The comments of LJ Nicholson at 70,71 and 72 of the judgements are ignored by the guidelines:
Nicholson LJ“69] I regret that I do not find Mr Hanna’s exposition of the applicable principles as clear as Kerr J did. I say so mainly but not only because they are not expressed in language appropriate to a criminal trial which is what the medical practitioner would be facing.[70] It is not clear to me whether Mr Hanna means that, on a prosecution under the legislation the prosecutor must prove beyond a reasonable doubt that the accused did not believe that the life of the mother might possibly be at risk if the pregnancy continued. Is he saying that the accused should believe that there is a threat to her life or that death is imminent? Does he imply that there is an evidential burden on the accused to prove that her life was threatened or death was imminent? If the prosecutor proves that the life of the mother was not in imminent danger, is he saying that the accused must be convicted, whatever his state of mind may have been? What is, in practice, the difference between risk of death and risk of imminent death? What is the meaning of ‘real and serious’?
[71] If the case involves the mother’s physical or mental health, is the onus on the prosecutor to prove that the accused did not believe that the adverse effect of the continuance of the pregnancy on the mother’s physical or mental health would probably be real and serious and long-term? Or is there an evidential burden on the accused to prove that the adverse effect would probably be real and serious and long-term? If the prosecutor proves that the effect would not be serious or would only be middle-term, whatever the belief of the accused may be, must he be found guilty? What is the meaning of long-term? It is defined, for example in Regulations relating to disability as twelve months.
[72] How do the words:- “It will always be a question of fact and degree whether the perceived effect of a non-termination is sufficiently grave to warrant terminating the pregnancy in a particular case” fit a criminal prosecution?How is a jury to understand what this means? ……………………………..
There is no discussion of burden of proof, evidence or criminal procedure.
The advice which is given in the guidelines is often not based on statute law as applicable to Northern Ireland.
There is a general presumption towards adopting principles from the 1967 Abortion Act and guidance which flows from that act.
We submit that the guidelines fail to address the very issue which they set out to deal with, the law, and instead they moves swiftly on into the realms of “how to get on with performing abortions”.
It should be remembered that ignorance is no defence in respect of a criminal prosecution in this jurisdiction.
THE OPENING AMBIT OF THE GUIDELINES ARE SKEWED IN FAVOUR OF PERFORMING, RATHER THAN NOT PERFORMING, ABORTIONS.
The phrase “must ensure that its patients have access to termination of pregnancy services.” has no foundation.There is no “right” to have and abortion in the law, only in the playground of moral relativists.There is no right to do evil. The moral power of a person to do or to possess or to act is what is properly called a right. A right can only be founded therefore in moral objective law. Its purpose is to confer upon a person the authority to freely choose that which leads him safely to his final end, to God.
CONSCIENTIOUS OBJECTION
We submit a great deal of pressure will be put on the medical profession.Does this guidance mean that medical professionals who have a conscientious objection will have to make way for at least one professional in each field, in each trust, who will perform abortions? Will future job specifications for medical professionals include a provision that they must carry out duties pertaining to abortions if requested? If so this would seriously compromise Catholics and Christians amongst others.
Catholics will be risking excommunication: Code of Canon Law (1983): “A person who actually procures an abortion incurs automatic excommunication” (Canon 1398).
Will funding for GPs and other health care providers become dependant on this “service” being offered, as it is in England and Wales? Section 4.1 of the guidance means that staff can be compelled to actively participate in performing an abortion in circumstances where the woman’s life is in danger. Considering the guidelines state that “life” includes “physical and mental health” and any other abortions would be illegal, section 4.1 may as well read. “there will be no tolerance of conscientious objection”.Section 4.2 to 4.6 then goes on to threaten the conscientious objector with guidance produced in England and Wales to comply with the Abortion Act 1967. How is it envisaged that any of the above guidance will be binding on staff in a jurisdiction where the Abortion Act 1967 does not apply?
Section 4 as a whole is totally dismissive of the personal dignity and professionalism of staff who object to abortion. How can one be forced to participate in an immoral practice against ones conscience? The effect of this on staff could be illness, both physical and mental. What kind of person is not informed by their own conscience and acts accordingly?
This document fails to address the professionals legal rights under the law in Northern Ireland regarding conscientious objection to abortion. One cannot go from the position where the majority of medical staff are described as broadly pro life (Francomes report averred to by fpaNI in the Judicial Review puts the figure for doctors alone at 54% which is probably a conservative estimate ) to a position where all these staff are asked to act against their conscience. If the department fails to act compassionately to its staff then this issue will be tested by the courts. This is a clear instance of guidelines trying to dictate law. It is currently not wrong for a medical professional to refuse to partake in the provision of abortion, after these guidelines it will be misconduct.
There is a further consideration. The medical professional in Northern Ireland is not only making a clinical decision but also a legal one. We would suggested that it would be a complete defence to any allegation of misconduct if the medical professional did not believe the abortion procedure suggested was legal. An employee cannot be compelled to perform an illegal act.
We are concerned that the members of staff in non professional posts have not been considered. What is their capacity to judge the situation in hand with regards to the law and the medical indicators?
Francomes’ report describes that an abortion is undertaken by a “team” of staff, which includes “auxiliary staff”, “all of whom need to know the law” as the report asserts. What chance has a member of the auxiliary staff in a hospital got of “knowing the law” when even Lord Justice Nicholson had questions?
We would contend that the Department must ensure that its patients have access to services which are not contaminated by pro abortion philosophy, given the democratic opinion of the majority of the people of this state.
During our meeting with the Department on the 18th April 2007 it was asked of the panel how they intended to ensure that Mr Justice Nicholson’s remarks regarding the reduction of abortions were to be addressed. Mr Sean Mullholand , speaking for the department, stated that the judges comments were only obiter dictum and were not binding upon the Department. The clear indication was that reducing abortions was not an ambition of these guidelines.
We submit that Doctors and staff who refuse to take part in abortion operations should be protected and not vilified, as they seem to be in these guidelines.
We would like to thank all medical staff, in particular consultants, doctors, nurses and midwives and pharmacists who, though our country has continued to be assailed by pleas for abortion provision, have maintained their belief that abortion is wrong and acted according to their consciences. They have dealt well with us, our children and we hope our childrens’ children. They guide us into this world with skill and compassion. We owe them our support, and they will have it during this assault on them.
We further submit that positive steps should be taken to reduce abortions performed in Northern Ireland.
THE ABORTION ACT 1967
Why is the Abortion Act 1967 gone into in such detail if it is not applicable in this jurisdiction?
This question was put to the Department at the afore mentioned meeting. Mrs Margaret Boyle, Chief Medical Officer, explained that the 1967 act was included as some doctors come over from England to practice in Northern Ireland and don’t know that the 1967 Act does not apply here.Is there seriously any health professional to whom these guideline will apply who does not know that the 1967 Act is not extant in Northern Ireland?We submit that the 1967 Abortion Act is in the guideline because it portrays a pro abortion philosophy. The idea is to get people to think in terms of the 1967 Abortion Act and in this way influence their decision making process in a way which lends itself towards broadening the scope of abortion. NO PREGNCNCY CONDITIONS REQUIRING ABORTION GIVEN.We would submit that this is because there is no medical ground for a direct abortion to save a mothers life. This is distinct from the indirect abortion of a child, where an act was performed only to save the mothers life. For instance, where a cancer is being removed and the intention of the act performed is to remove the cancer to save the mothers life, the child may die in this process, and although that may be foreseen it is not intended by the act.
CONSENT
Section 2.11 to 2.13 dealing with consent suggests the most shocking practice with regard to treatment of a young woman, child or a mentally incapacitated woman, that the department may override their refusal of consent to an abortion by application to court. This is forced abortion.
As justification the guidance refers to case law namely
Re AMNH. However in this case the woman in question wanted an abortion:
Northern Health and Social Services Board v AMNH, IC Mc C and The Official Solicitor, Family Division, 21 January 1994
MACDERMOTT LJ: “AMNH (whom I shall refer to simply as A) is a young woman of 24. She is also severely mentally handicapped and is presently in about the tenth week of a pregnancy. She wishes to have her pregnancy terminated.”
How is this case relevant to the practice of overriding refusal of consent? Is this another mistake in the law? Are we being mislead again by these guidelines?
In relation to the other cases Re SJB and RE CH citations are not available for these and they cannot be found in any of the usual authorities, therefore we rely on the reference to them in LJ Nicholsons’ judgement for authority :Nicholson LJ“[58] The fourth case was the decision of Sheil J in the matter of CH, a minor delivered on 18 October 1995. In that case the minor was a ward of court and stated that it was only in England that she would be given full confidentiality. All of the doctors who gave evidence were given anonymity in the judgment. Sheil J was satisfied that termination of her pregnancy would be lawful under the law of Northern Ireland, having regard to his own decision in K a minor, the decision of MacDermott LJ in Re A and the decision of Pringle J in the matter of SJB a minor. Sheil J expressed his agreement with the views of Pringle J. He then went on to consider whether it would be in the best interests of CH, as she was a ward of court, that the pregnancy should now be terminated and granted permission for this to be done in a clinic in England if the circumstances were appropriate. He pointed out that the court did not direct that the pregnancy should be terminated.”It seems that Re SJB is and Unreported High Court case dated 28th September 1995 and that s was suicidal, but there was no issue of overriding refusal of consent.
Re CH is also an Unreported High Court case dated 18th October 1995. In this case CH was also suicidal and wanted to terminate her pregnancy. Again no issue of overriding refusal of consent.
As there seems to be no issue of overriding of consent in any of these cases what can be drawn from the use of these cases, in the section headed “consent”, by the Department to imply that there is precedent for forced abortion in Northern Ireland?
There is here potential for a grave injustice and serious criminal offences being perpetrated against vulnerable women such as young girls or women without mental capacity.
We submit that based on the above there is no legal foundation for forcing an abortion on a woman.We further submit that the Department make clear immediately its policy relating to consent with regard to young women and women without mental capacity, specifically is it the mistaken belief that these cases allowed the refusal of consent to be overridden and an abortion forced? Again no further action should be taken regarding the implementation of these guidelines until this issue is resolved.LATE TERM ABORTIONS
The guidelines are very unclear on this issue. There seems to be no limit to the idea that an abortion can be performed within the exceptions to the law illustrated above.
Are abortions being committed in Northern Ireland on late and full term babies?
Is partial birth abortion happening?
Where are the details for these abortions?
It would be a terrible irony if the Northern Irish people had resisted the Abortion Act for so long to be besieged by an “exception” in the law which allowed for abortion to full term.
DISABLED BABIES
It is clear from the law that it is illegal in Northern Ireland to abort a child on the grounds of foetal abnormality.There is a move in these guidelines to suggest, without legal or medical foundation, that a mother may abort a baby deemed “abnormal” as to continue with the birth would “cause her to suffer serious long term harm to her physical or mental health”(the narrower interpretation given by Nicholson LJ) “would adversely effect her physical health” (the wider ambit stated in section 2.7 of the guidance by the Department)
We reject that there is any foundation to say that the child’s disability could cause such a profound effect on a woman.Again this interpretation of the law would render an disabled child in the womb in Northern Ireland even more vulnerable than its brother in England, who has to “suffer from such physical or mental abnormalities as to be seriously handicapped” under the Abortion Act before he is aborted. (However under the 1990 Human fertilisation and Embryology Act a child can be aborted up to the point of natural birth for any abnormality). We assert that it is abhorrent to accept that an unborn child should be in a position where he has to be normal and pleasing in order to live.CONCLUSION
It is just too much to assume that when the laws were drafted, in 1861 and 1929 (1945 NI) to criminalize abortion and child destruction, that these guidelines reflect the intention of those who framed that legislation.
We don’t have the progressive Abortion Act and yet we have allowed our laws to be eroded to such an extent that from a position which existed in Statute, and which made us believe we were a country where abortion was illegal, we now find ourselves in a position where, according to the guidelines, a child could be aborted, at full term, because of an “adverse” effect on the mothers physical or mental health, which must be “real or serious” and “permanent and long term” and it should be a “probability” but it might be a “possibility”, but it will always be a question of “fact and degree” whether the effect of not having an abortion is “sufficiently grave”.
We submit, in light of the very serious failings in these draft guidelines as illustrated in our submission, this draft copy should be set aside completely and the competence of the Department to provide appropriate guidance questioned.
The ruling of the Appeal Court in this matter did not require that guidelines be issued, only that the Department investigate issuing guidelines.
In light of the final paragraph of the judgement of Nicholson LJ:
“[117] This judgment is written in the hope that the department will seek to reduce the number of women and girls going away to seek an abortion and to encourage those seeking an abortion in Northern Ireland to make a different choice. It must surely be the concern of all right-thinking persons in the United Kingdom that the number of abortions which are carried out is so high.”
the result of the investigation by the Department into issuing guidelines should be that non should be issued.
Johanna Higgins
