Abortion debate: No need for clarity to deny half the population's rights
The wording of the 'Consultation' on the limited circumstances for a lawful termination of pregnancy in Northern Ireland says as much about the motives and mindset of those who approved it as any argument advanced in the text.
The consultation period ended on Monday. Pro-choice responses published the same day blasted the proposed guidelines as making a mockery of the idea of consultation.
Alliance for Choice Derry points to a preponderant use of conditional terms – could, should, might, may – in a document specifically intended to provide clarity.
Paragraph 3.4: "In exceptional circumstances, such as imminent death emergency, it may be sufficient for a single doctor to assess whether a termination of pregnancy is indicated."
So there are circumstances in which imminent death may not be sufficient to entitle a single doctor to declare that an abortion should be carried out? Really?
Perhaps Health Minister Edwin Poots, or designated successor Jim Wells, will expand on this remarkable proposition.
Take the statement that, "Health and social care professionals have a legal duty to refuse to participate in, and must report, any procedure that would not be lawful in Northern Ireland."
On the face of it, this means that a doctor or nurse or social worker must report – presumably to police – a woman whom they know has travelled, or intends to travel, to England for an abortion.
If this is the meaning of the law, how come there is no hunt under way for medical, or social work, professionals aware of the cases of women who have trekked across the water for abortions?
Of course, it's not certain that the words are intended to be taken at face-value in a document redolent of shifty prevarication and written in clumsy code.
There is clarity, at least, in the paragraphs (5.11 and 5.12) dealing with counselling services for women with crisis pregnancies. That is to say, it is clear that the document has gotten it wrong.
Referring to the question of whether it would be lawful to "advocate, or promote" to a woman with a crisis pregnancy the termination of her pregnancy in a jurisdiction where this would be legal, the document says that this is a "grey area" requiring interpretation by the courts.
This is not a grey area at all. The issue was determined in a binding judgment by the European Court of Human Rights in 1993 in a case bought by two agencies in the Republic, Open Door Counselling and the Well Woman Centre.
The right to provide information to assist a woman in accessing abortion facilities abroad has been enshrined in law since. It is protected by Article 10 of the European Convention. It is very difficult indeed to believe that the officials who drafted the guidance were unaware of this.
Paragraph 2.12 is perhaps the document's most insulting passage to women – close-run thing though this may be. The paragraph deals with the question of what's to be done when a foetus is either dead or has been diagnosed as non-viable.
It explains that the Criminal Justice Act (Northern Ireland) 1945 offers a statutory defence to women and medical professionals who, in these circumstances, procure an abortion.
The protection available under the 1945 act is most commonly applied in cases of murder or grievous assault. Invoking the act implies a parallel between terminating a pregnancy and committing murder.
What isn't stated anywhere in the document is that no woman should be legally required to carry a dead or non-viable foetus to full term, then to undergo the virtually unimaginable trauma of still-birth. Senior law lecturer at the University of Ulster Catherine O'Rourke describes this omission as "astounding... in the immediate aftermath of the death of Savita Halappanavar".
Perhaps the most apt summation comes in the Royal College of Nursing's commentary on the wording: "Guidance that seeks primarily to reinforce a particular viewpoint, rather than to explain and assist in a neutral tone, rarely constitutes good guidance...
"In the over-zealous desire of the DHSSPS and others to emphasise that termination of pregnancy is largely illegal in Northern Ireland, the language escalates from 'limited' in the title of the document to 'highly exceptional' in the first sentence of paragraph 1.3 to 'very strict and very narrow' in the second sentence and then to 'very limited' in the penultimate sentence of the same paragraph." The cause of a woman's right to chose took a small step forward in the south last month, with the passage of the 'X' case act.
It's long past time for progress here, too. How can we have a stable and contented society while half the population is denied equal rights?