(a) Definition of the 'Unborn'
It is the DARG's view that it would be inappropriate to include any specific definition of the 'unborn' in the Constitution, but again that the lack of certainty over the meaning of this term at present does show the need for legislation.
However, if such legislation were to define "unborn" life as commencing from conception, such a definition could potentially outlaw those forms of contraception which might be described as abortifacient; such as the morning-after-pill, and the IUD. This would have dangerous implications for women's health.
Instead, the DARG recommends that the legislation on abortion should contain a definition stating that the term "unborn" should only apply to those foetuses which have attained viability, in the medical sense. The test for viability in an individual case would be left to the pregnant woman's medical adviser. Even where a foetus was deemed to be medically viable, clearly under the Constitution the woman's right to life would take priority where it was threatened by the continuance of her pregnancy.
(b) Threat to the Life of the Pregnant Woman
While the DARG view is that there is no logic in the distinction adopted by the Supreme Court in the X case, between the "life" as distinct from the "health" of the pregnant woman; the DARG would recommend that, in keeping with the X case test, legislation would have to provide a test as to how to determine the existence of a threat to the lfe of the pregnant woman.
The 'Pro-Life Campaign' has repeatedly said that no situation arises where abortion is necessary to save the life of the pregnant woman. The DARG agrees with the Constitution Review Group that it would be unsafe to rely on this understanding (see p.277 of their Report). The X case was found by the Supreme Court to be just such a situation; the C case was also so found by the High Court in 1997; the death of Sheila Hodgers in 1983 may also have constituted such a case.
Moreover, in no other country in the world does such an understanding form the basis either of medical training or of the law in this area. It is, in fact, widely recognised that women do die of maternal causes, even in Western countries. Indeed, the latest issue of The Progress of Nations, the UNICEF report on achievements in child health, family planning and women's health, states that almost 600,000 women die in pregnancy and childbirth each year; in Western Europe the figure is a woman in 3,200; and in the US 1 in 3,300 (Source: Valery Abramov, Health Communications and Public Relations, WHO, Geneva).
The DARG recommends the following test to be inserted into the legislation: that a pregnant woman should be entitled to an abortion where the continuance of her pregancy would, in the opinion of her medical doctor or pyschologist, constitute a real and substantial risk to her life, i.e. either her physical or mental integrity. Where such a risk exists to the woman's life, she is constitutionally entitled to have an abortion, and therefore any time limitation on this right contained in legislation would be unconstitutional. The DARG therefore recommends that the legislation should not contain any time limit.
(c) Protection for Doctors who carry out Abortions
The DARG recommends that the legislation should provide expressly for protection for those doctors who carry out abortions. It should also provide that health boards have a duty to ensure that women are able to obtain abortions where they are necessary under the Constitutional test. Further, the legislation should provide for sanctions, if necessary in criminal law, for those who may target, harass or intimidate doctors, support staff and patients at any stage in the process of seeking an abortion.
(d) Abortion to be made available through the health system
Central to the DARG policy is the notion that abortion should be seen primarily as a medical issue; an issue of women's health; not a moral, ethical, religious or legal issue. Further, the DARG believe that all women should have access to abortion on an equal basis. We do not want to see a two-tier system, such as exists at present, where those who cannot afford to travel are denied the access to abortion which the better-off have. Thus, the DARG recommends that abortion should be made available through the health system, as accessible to medical card holders as it would be to private patients. As the Supreme Court of Canada has said in the landmark Morgentaler decision, not providing public health coverage limits and delays access to abortion. Such delay contributes to the ill health of women, and publicly funded abortion services thus benefit the public health.