(1) Criminal Law
The Offences Against the Person Act 1861
The lack of certainty over the effect of the OAPA on abortion again demonstrates the need for new legislation. Recent reports indicate that a retired doctor may be prosecuted for carrying out abortions in Dublin in recent years; if such a prosecution takes place, the doctor may be able to rely upon the decision in R. v. Bourne [1939] 1 KB 687 (in which abortion was held permissible under the Act where the pregnancy threatened to make the woman a 'physical or mental wreck'). Given that, apart from this potential case, the criminal law on abortion has fallen into disuse, and that all sides in the abortion debate are of the view that women who terminate their pregnancies should not be treated as criminals, the continuing criminalisation of abortion under this Act is an anomaly. Indeed, the German Constitutional Court has described the criminalisation of abortion as being counter-productive, both for the pregnant woman and for the foetus.
The DARG therefore recommends the repeal of sections 58 and 59 of the OAPA, and the decriminalisation of abortion.
(2) E.U. Law
(a) Information on Abortion
The ruling of the ECJ in 1991 (the Grogan case) gave rise to the inference that information providers here might establish contacts with clinics in England, and thereby claim a right under EC law to disseminate information on the services offered by those clinics is still open to testing. It may be that section 6 of the Regulation of Information (Services Outside State for Termination of Pregnancies) Act 1995, which prohibits persons supplying information on abortion from having any "interest, direct or indirect" in any clinic offering abortion services outside the State, is thus in breach of EC law.
The DARG therefore recommends that section 6 of the 1995 Act should be repealed or modified to prevent any potential conflict with EC law.
(b) Protocol No. 17 to the Maastricht Treaty (February 1992)
There is still uncertainty over whether the Protocol is effective, in the light of the Solemn Declaration and the November 1992 Amendments to Article 40.3.3. It would seem that even after the enactment of the Travel and Information Amendments, conflict is still possible between Irish constitutional or statute law on abortion, and substantive EC law, which conflict the Protocol and Declaration would be expected to resolve. Curtin (Irish Times, March 2, 1992) has argued that the ECJ would not permit the Protocol to be used by the Irish courts to restrict either travel or information; although she admits that the intention of the parties as clearly to reserve exclusive jurisdiction on the issue of information to the Irish courts.
This being so, the Declaration contradicts this expressed intention, but a number of arguments may be offered against reliance on the Declaration, in particular the argument that it conflicts with the Protocol and is therefore implausible. It is almost impossible to predict how the ECJ would interpret the Protocol and Declaration, although their preference would presumably be to rely upon the Declaration, as this would allow them to maintain intact the body of EC law on abortion and related areas.
Given this doubt over the effect of the Protocol, the DARG recommends that at the next re-negotiation of the Treaties, the Declaration should be expressly made binding.
(3) Travel
It is necessary, following the C case, for the provision in legislation of a guarantee that all women should be able to exercise their right to travel to obtain abortions abroad, with the assistance of State agencies where appropriate. In particular, young women, wards of court, asylum seekers, and those whose ability to travel is restricted for other reasons should be given this guarantee.
The DARG recommends that the right to travel should be guaranteed for all, and that State assistance to travel should be provided where appropriate.
(4) The Need for Legislation on Abortion
The Defeated Twelfth Amendment of November 1992
In the Government Pamphlet published just before the passing of the Travel and Information Amendments, and the defeat of the proposed Twelfth Amendment to limit the test in the X case, it was expressly promised that if this Amendment was defeated, legislation would be introduced to implement the test in the X case. No such legislation has yet been forthcoming. This failure to legislate has been criticised strongly by the judiciary, most recently by Keane J. in SPUC v. Grogan (No. 4), Supreme Court, unreported, March 6, 1997, at p. 33 of his judgment, when he said:
"Almost five years have elapsed since that judgment [the X case] was delivered and successive governments have failed to introduce any form of statutory regime. It is not the function of this court to supplement this governmental and legislative inertia.."
In the light of these comments, and the current uncertaintly regarding the status of any abortions allegedly performed within this jurisdiction, the DARG recommends that legislation to implement the X case test should be introduced forthwith. It is therefore proposed to recommend what definitions such legislation should contain.