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the Health Committee have taken on board the serious concerns raised in relation to the legal failings of the present draft guidance”.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.

Senior Legal Expert on Medical Ethics Law Calls Department of Health NI Guidelines on Abortion “Seriously Misleading”.

Senior Legal Expert on Medical Law Calls Department of Health NI Guidelines on Abortion “Seriously Misleading”.

Professor John Keown, a Barrister and former Senior Lecturer in law at Cambridge University, and Senior Research Fellow at Churchill College, now a Professor in the Kennedy Institute of Ethics, Georgetown University, Washington was asked by the Association of Catholic Lawyers of Ireland to comment on the Consultation Document on Abortion Guidelines issued by the Department of Health NI.

Mrs Johanna Higgins, Barrister, of the ACLI says, “Professor Keown is a leading expert in the field of abortion law, having written such important books as “ Abortion, Doctors and the Law“ really the only book of its kind, an analysis of the history of abortion law. He also has a distinguished legal career, having lectured in Law and ethics at Cambridge and achieving his Doctorate from Oxford. He now holds the Rose f Kennedy Chair in Christian Ethics.”
Professor Keown, whose research has been cited widely, in particular by the U.S. Supreme Court (in its decision on physician-assisted suicide), by the English Court of Appeal (in the conjoined twins case, 2000); and by the House of Lords Select Committee on Medical Ethics, has stated, regarding the Department of Health’s document on abortion;

“The opening statement of the Guidance on the Termination of Pregnancy ….is seriously misleading.”

He further states;

“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.”

Mrs Higgins says;“ I am extremely grateful to Dr Keown for his help in underlining a fundamental flaw in these guidelines. His assistance has been greatly appreciated by the ACLI and I am thankful for his help with the law in this important matter.”

Mrs Higgins goes on to say; “I have stated clearly, in my Briefing Papers on this matter, that the Department of Health has issued flawed guidance which is unreliable as a clarification of the law.”

Dr Keown further states;

“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.”

FULL STATEMENT BY DR KEOWN.

Statement on the Department of Health NI Guidance on Termination of Pregnancy from Professor John Keown.

The opening paragraph of the Guidance states, in bold:

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

This is seriously misleading, not least as it invites the exception to swallow the rule.

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. Similarly, the Guidance should accurately have stated the law against child destruction and its central purpose, the protection of a child “capable of being born alive”, and then have noted the narrowness of the exception to this prohibition: such a child may be intentionally destroyed for the purpose only of saving the life of the mother. (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 recognises 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 anyone (doctor or government) is under a duty to provide abortion in those circumstances, any more than anyone is under a duty to provide citizens with 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 prioritise medical procedures which do not involve the destruction of life.

Professor John Keown MA DPhil PhD
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).

Lawyers attack DHSSPSNI Revised Abortion Guidelines 2008

legal-critique-revised-guidelines-2-final-version

It is the clear view of the Association of Catholic Lawyers of Ireland that these new guidelines are in reality the same guidelines as have already been rejected by the Assembly last October.

A criminal review of the abortion guidelines issued by the DHSSPSNI show that the Department has produced seriously flawed advice which could introduce a liberalised abortion practice in N Ireland.

Doctors who follow these guidelines may find that they are breaking the law.

Areas of serious concern include:

The complete ommission of the Unborn Child as a patient under the law

The mistaken advice that there is a defence to Child Destruction following the Bourne Case.

That “terminations” are like any other medical operation and similar rules of consent apply for young girls.

The deliberate ommission of relevant case law.

The deliberate ommission of part of the Child Destruction offence.

The misleading impression that doctors who will not committ direct abortions need a conscientious objection clause to rely on.

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Click below for a pdf copy of the Briefing Paper. This paper addressess the the criminal law on abortion in N Ireland. This paper outlines the main legal problems in the DHSSPSNI paper with citations and discussionaroung medical and legal issues.

CLICK THIS LINK FOR BRIEFING PAPER:

legal-critique-revised-guidelines-2-final-version

The DHSSPSNI Consultation Document on the Guidelines can be seen by Clicking Here.

Catholic Lawyers previous briefing paper.

New Website for information on the Human Fertilisation and Embryology Bill.

A very helpfull website has been set up by the All Party Pro Life Group in Westminster to keep interested pro life groups and individuals abreast of the news regarding the forthcoming HFE Bill.

Click here for direct link…..

or go to http://hfebill.org

Briefing Paper on the DHSSPS draft abortion guidelines.

This can now be seen on this site as a text document on the page with the above heading. The PDF version can be accessed by clicking on the picture at the top of the right hand column of this page and also in the previous post on the subject.

All Party Pro Life Group Launched At Stormont

The 2nd November 2007 saw an historic event in Stormont, the launch of an All Party Pro Life Group.

The keynote speaker at the launch was Dr Alveda King who, being the niece of the late slain Martin Luther King, likened the aborted child to “a slave in the womb”.

Also speaking were Dr Patricia Casey on the proven psychiatric links between abortion and suicide, Mrs Johanna Higgins, Barrister of the ACLI, presenting comment on the criminal law on abortion, Mrs Bernadette Smyth, Director of Precious Life and Mr Donaldson MLA MP, Mr Ramsey MLA and Mrs Robinson MLA MP.

The event was well attended and guests included all the main pro life groups, Doctors for Life, Lawyers, Teachers and the Catholic Bishops representative.

It was a wonderful event, very uplifting and informative.

Dr Alveda King, Bernadette Smyth (Precious Life), Johanna Higgins (Barrister), Lynn Coles (Silent No More Regional Co-ordinator) in Parliament Buildings at the Official Launch of the All-Party Pro-Life Group of the Northern Ireland Assembly

Northern Ireland Assembly Speeches From Pro Life Debate

Click Here

 

to see who said what in the Abortion debate held in the Northern Irish Assembly on the 22nd October 2007.

Pro Life Motion Sucessful By A Large Majority in Norths Assembly!

Left to right Jeffrey Donaldson MLA MP, Johanna Higgins Barrister, Bernie Smyth Director Precious Life, Iris Robinson MLA MP

The Pro Life motion tabled before the Assembly was won by a clear majority of MLAs in favour of protecting the unborn child.

Below is the ACLI press release:

Pro Life Motion A Success At Stormont as Legal Flaws in Draft Abortion Guidelines Undermine DHSSPS

 

On the 22^nd October a motion was passed in Stormont by a large majority to protect the Interests of the unborn child in the North of Ireland.
 
The motion had been tabled by Mr Jeffrey Donaldson MLA MP and Mrs Iris Robinson MLA MP. It proposed that the Assembly should reject the Draft Abortion Guidelines and any attempt to liberalize the law in Northern Ireland.
 
Mrs Johanna Higgins, Barrister was instrumental in advising Precious Life or the legal flaws in the Draft Guidelines. She attended meetings with Precious Life and MLAs over the last few months to alert them to the dangers inherent in the Draft Guidelines. She also wrote a Briefing Paper outlining the various faults which was published and distributed to all the MLAs.
 
Mrs Higgins says “I was glad to be able to assist in the defence of the unborn by highlighting legal errors in the interpretation of the law which had been made by those who had drafted these guidelines.”
 
“We were delighted by the robust majority in the Assembly and the moving speeches made on behalf of the unborn child.”
 
Mrs Higgins went on to say “There seems to be some misunderstanding of the law by those who suggest that there is provision for abortion on mental health grounds. This is certainly not the view of Criminal lawyers.”
 
The Minister for Health in his speech addressing the Assembly on Monday reiterated this view of the mental health ground and the effect of the Bourne case.
 
Mrs Higgins states “In my opinion the Ministers statement of the law on this matter is erroneous.”

The ACLI has undertaken to complete a review of the Criminal Law in the area of Abortion Law. The ACLI also look forward to the continued support of the American Catholic Lawyers Associstion.
 
“We were delighted at the support of Mr Christopher Ferrara, President and Chief Counsel of the American Catholic Lawyers Association. The ACLA have many great pro life victories under their belt”. Says Mrs Higgins.

 from left) Jeffrey Donaldson MP MLA [DUP], Dr Kieran Denney MLA [Independent], Bernadette Smyth, Pat Ramsey MLA [SDLP], Jim Wells MLA [DUP], Johanna Higgins Barrister, Moira Brennan

LEGAL “BRIEFING PAPER” A CRITIQUE OF THE ABORTION GUIDELINES ISSUED BY THE DHSSPS

Legal Briefing Paper Click Here

Click above to see a breakdown of the legal analysis of the Draft Guidelines on Abortion issued by the Department of Health.

This legal analysis is a lay persons version of the indepth legal submission presented to the Department of Health last April. The briefing paper attempts to breakdown complex legal issued and explain how the Draft Guidelines issued by the Department of Health are a misinterpretation of the law.

PRESS RELEASE REGARDING PRO LIFE MOTION, STORMONT, MONDAY 22ND OCTOBER

Association of Catholic Lawyers of Ireland

 

PRESS RELEASE

IRISH AND AMERICAN CATHOLIC LAWYERS ASSOCIATIONS SUPPORT PRO LIFE MOTION BEFORE STORMONT.

 

The newly formed Association of Catholic Lawyers in Ireland (ACLI) has written in support of the Pro Life motion tabled by Mr Jeffrey Donaldson and Mrs Iris Robinson.

Co-Signatories to the letter, which has been sent to various papers , are the American Catholic Lawyers Association (ACLU), a group which has much experience since 1990 in representing Pro Life litigants and defendants in America. .

Mrs Johanna Higgins, Barrister and co-founder of the ACLI says; “The group was formed mainly in response to the attempts to introduce abortion into our society by whatever means.”

Mrs Higgins further states “I have worked for some years on a charitable basis for pro life groups and wanted to formalise this work with the formation of the ACLI.”

“We were delighted to receive the support of Mr Christopher Ferrara on behalf of the ACLU which has some great pro life victories under its belt.”

Mrs Higgins has been advising Precious Life regarding the Draft Abortion Guidelines issued by the Department of Health. She has written a Briefing Paper on the Guidelines which lays out the main legal faults and concerns and consolidates a more detailed submission which was presented to the Department last April.

“It is of great concern that the Department of Health could have made such glaring errors in law and effectively produced guidance, which if implemented could lead to a very liberal interpretation of the law.”

“ We feel it is vitally important to support our MLAs who are standing forward on this issue and who are acting in the interests of justice for the unborn child.” stated Mrs Higgins.

The full text of the letter reads:

amdg+

Dear Sir,

With regard to the proposed parliamentary motion before the Northern Irish Assembly tabled by Mr Jeffrey Donaldson MLA MP and Mrs Iris Robinson MLA MP against the Draft Abortion Guidelines issued by the Department of Health we should like to make the following comments.

There exist in the North of Ireland two statutes which contain the two offences of Illegal Abortion and Child Destruction. These are serious Criminal offences both of which carry possible life sentences. It is our view that the Draft Guidelines put forward by the Department of Health misrepresent the legal position in this jurisdiction with regard to these offences. The effect of that misrepresentation will, in our opinion, lead to an increase in the deliberate abortion of unborn children. If these direct abortions are carried out as a result of misrepresentation, and are in fact illegal then , as with all criminal activity, there will have to be appropriate action taken against the perpetrators. Such is the magnitude of the task of explaining the law on this matter.

As lawyers we find it is our clear duty to stand against such wrongful interpretation of the law. Especially because in this case the law protects the most vulnerable in our society, the unborn child. It is an injustice to both the people of a country and to the rule of law itself to treat with contempt the true meaning of a statute.

Those of us who live in countries where we have had to sustain the moral horror of virtually freely accessible abortion due to, what is in our view, the corruption of social justice, have long held in high regard the people of the North and South of Ireland and their refusal to countenance liberal abortion.

We therefore wholeheartedly support the Pro Life motion tabled by Mr Jeffrey Donaldson and Mrs Iris Robinson and pray that it is successful and that the unborn remain protected, as was the intention of the persons who drafted the above laws in good faith.

Yours faithfully,

Mrs Johanna Higgins LLB, Barrister
Ms Geraldine Foley LLB, Barrister
Miss Karen McMillan LLB, Barrister
Association of Catholic Lawyers of Ireland
Mr Christopher A. Ferrara, J.D., Attorney

President and Chief Counsel American Catholics Lawyers Association, Inc.

United States