Stormont Health Committee Accepts Legal View That Abortion Guidelines are “Seriously Flawed”.

Stormont Health Committee Accepts Legal View That  Abortion Guidelines are “Seriously Flawed”.

The Health Committee, which oversees the Department of Health in N Ireland, invited witnesses to give evidence regarding the draft Abortion Guidelines recently issued for consultation by the Department of Health.

After hearing evidence on the 17th October 2008 from various witnesses, including Mrs Johanna Higgins, Barrister of the Association of Catholic lawyers of Ireland, the Health Committee has produced its response and published the full minutes of the evidence given in Hansard.

The Health Committee states;

“The Committee fully endorsed the statement by Professor John Keown, Kennedy Institute of Ethics, Georgetown University who argued that “The starting point of the Guidance should have been a clear statement of the illegality of abortion in Northern Ireland: that it is a crime punishable by a maximum of life imprisonment to use any means with intent to procure miscarriage, and an offence to supply means knowing that they are to be used with that intent. The Guidance should then have recalled the central if not sole purpose of this prohibition: the protection of the unborn child, a purpose which has informed the law against abortion for over 700 years. Only when the rule had been clearly stated should the scope of the exception have been considered.”

This is welcomed by the ACLI, who presented Professor John Keown’s statement in their evidence to the committee.

Mrs Higgins says: “ We asked Dr Keown for his view on the guidelines given that he is a leading expert in the field of ethics and abortion law, we are delighted to see that the Health Committee have taken on board the serious concerns raised in relation to the legal failings of the present draft guidance”.

Mrs Higgins stated during her evidence to the Committee:

“The issue before the Department is to explain the criminal law on abortion. Abortion is a matter of justice and criminal law and it should not be regarded as a medical issue per se. In this case, it is a matter of justice for the unborn child that the law should be stated correctly. The criminal law on abortion exists entirely to protect the unborn child; that is its one purpose. However, the departmental guidelines do not include a single mention of the victim, which, in this area of law, is the unborn child. That is a gross omission, to say the least.” (Hansard)

The Department of Health invited evidence from both the pro life lobby and those who seek to liberalise abortion laws. The only legal and medical evidence given were from the Association of Catholic Lawyers of Ireland and Doctors for Life.

Evidence session before Health Committee:

http://www.niassembly.gov.uk/health/2007mandate/moe/2008/081017.htm

Report of the Health Committee and endorsement of Dr Keown’s statement:

http://www.niassembly.gov.uk/health/2007mandate/responses/081110.htm

FULL STATEMENT BY DR KEOWN.

The opening statement of the Guidance on the Termination of Pregnancy (“Within the scope of this Guidance and the law in Northern Ireland, each Health & Social Services Trust must ensure that its patients have access to termination of pregnancy services”) is seriously misleading.

The starting point of the Guidance should be a clear statement of the illegality of abortion in Northern Ireland: that it is a crime punishable by a maximum of life imprisonment to use any means with intent to procure miscarriage. The Guidance should then recall the central if not sole purpose of this prohibition: the protection of the unborn child, a purpose which has informed the law against abortion for over 700 years. Only when the rule has been stated should the scope of the exception be considered. Similarly, the Guidance should clearly state the law against child destruction and its central purpose, the protection of a child capable of being born alive, and then note the exception to this prohibition. (It is remarkable that paragraph 2.6 of the Guidance, which purports to quote the statute, misstates this exception by omitting the important word ‘only’.)

Would one begin Guidance on the law of theft, which recognizes that in exceptional circumstances A may lawfully appropriate B’s property, by saying that “within the scope of law of theft, the government should ensure that everyone has access to everyone else’s property”? Further, just because there may be a defence to abortion in exceptional circumstances does not mean that the government is under a duty to provide access to abortion in those circumstances, any more than it is under a duty to provide citizens ready access to weapons for use in self-defence. Moreover, the government has a discretion as to how to allocate its healthcare resources: it is perfectly entitled to deploy those resources on medical procedures which do not involve the destruction of life.

John Keown MA DPhil PhD
Rose F Kennedy Professor of Christian Ethics
Kennedy Institute of Ethics
Georgetown University

About Professor John Keown

John Keown is the Rose F Kennedy Professor of Christian Ethics at Georgetown University, Washington DC. He graduated in law from Cambridge in 1984 and obtained a DPhil from Oxford in 1986 for a thesis on the historical development of the law on abortion. After being called to the Bar of England and Wales (Middle Temple) in 1986 he was appointed to a lectureship in medical law at the University of Leicester. In 1993 he was appointed to a lectureship in the law and ethics of medicine at Cambridge, where he was a Fellow of Queens’ College and Churchill College. In 2003 he assumed the Rose F Kennedy Chair at Georgetown.

His many publications include three books, all published by Cambridge University Press: Abortion, Doctors and the Law (1988); Euthanasia Examined: Ethical, Clinical and Legal Perspectives (1995) and Euthanasia, Ethics and Public Policy: An Argument Against Legalisation (2002)

Full Report of Health Committee

Iris Robinson MP MLA, Chairperson
Committee for Health, Social Services and Public Safety

Room 412
Parliament Buildings
BELFAST
BT4 3XX

E-mail: committee.hssps@niassembly.gov.uk
Tel: 028 9052 1920
Fax: 028 9052 1667

10 November 2008

Mr Michael McGimpsey MLA
Minister for Health, Social Services & Public Safety
Castle Buildings
Stormont Estate
BELFAST
BT4 3SQ

Dear

The Committee welcomes the opportunity to comment on the draft Guidance on the Termination of Pregnancy in Northern Ireland and is grateful to the officials for attending the meeting on 17 October. As you know the Committee also took evidence from both Pro Life representatives and Pro Choice representatives on the same date.

The comments by the Committee on the guidance are set out in the attached memo. A transcript of the evidence on the 17 October will be forwarded to the Department for information as soon as it is available.

The Committee recognises that the guidance deals with the need for advice and guidance for healthcare professionals in relation to the termination of pregnancy. However, the Committee also recommends that it is important for all healthcare workers to be given advice and guidance on all aspects of the law that is relevant to their work.

Iris Robinson MP MLA
Chairperson

Committee for Health Social Services and Public Safety

Guidance on the Termination of Pregnancy: The Law and Clinical Practice in Northern Ireland

Committee response to the Draft Guidance

1. The Committee recognises that there is an urgent need for this guidance and believes that it must be set out very clearly leaving no room for ambiguity. The Committee therefore believes that the starting point for the Guidance should have been a clear statement that abortion is illegal in Northern Ireland and that the purpose of the guidance is to explain the very limited circumstances in which it is lawful to terminate a pregnancy. The Committee fully endorsed the statement by Professor John Keown, Kennedy Institute of Ethics, Georgetown University who argued that “The starting point of the Guidance should have been a clear statement of the illegality of abortion in Northern Ireland: that it is a crime punishable by a maximum of life imprisonment to use any means with intent to procure miscarriage, and an offence to supply means knowing that they are to be used with that intent. The Guidance should then have recalled the central if not sole purpose of this prohibition: the protection of the unborn child, a purpose which has informed the law against abortion for over 700 years. Only when the rule had been clearly stated should the scope of the exception have been considered.”
2. The Committee is concerned that there is no mention in the draft of the rights of the unborn baby and believe that it must be made clear that all those involved including health care professionals and counsellors need to take the rights of the child into consideration.
3. In relation to clinical assessment the Committee has concerns about the suggestion in paragraph 3.3 that a GP or consultant obstetrician may carry out an assessment of a woman’s mental health and would recommend that such assessments must always be carried out by a relevant and fully competent professional.
4. In relation to counselling – paragraphs 5.6-5.9 – the Committee believes that this should be independent, non-directive and non-judgemental.
5. In paragraph 7.2 line 2 the words ‘considering termination’ and in line 3 ‘before the procedure’ should be omitted.
6. In paragraph 2.2(i) line 2 – after the words ‘performed in good faith’ insert ‘only’ and in paragraph 2.6 line 4 after the word ‘destruction’ insert ‘only’.
7. The Committee believes that the decision making process must be very clearly documented at all stages and welcomes the guidance set out in paragraph 5.13.
8. The Committee recommends that there must be clear pathways in place for referral for women who find themselves in a crisis pregnancy.
9. The Committee believes that there is a need for greater clarity for health care professionals and recommends that adequate training arrangements in relation to this issue must be put in place for all health care professionals.
10. The Committee recognises the legal position in relation to the requirement for parental consent for medical procedures for minors and notes the guidance in paragraph 5.4. However, it has very serious concerns that young people, particularly those with learning disabilities, could be seeking a termination of pregnancy without their parents’ knowledge or consent.
11. The Committee has very serious concerns about the existence of internet sites that purport to offer drugs, whether genuine or bogus, for the termination of pregnancy and the serious risks to health posed by such drugs. The Committee would urge the Department to consider what action can be taken to tackle this issue.