The Isle of Man Abortion Reform Bill 2017 has a new name to reflect its new status! It reached the ‘consideration of clauses’ stage on Tuesday 13 February and Dr Alex Allinson MHK moved Clause 1, the short title of the bill, as the Abortion Reform Act 2018.
You may remember that the motion to send the draft Bill to a select committee was roundly defeated at the 30 January sitting, so this session allowed the House of Keys resolved itself into a Committee of the Whole House to allow members to question the four expert guests who’d been invited to give evidence.
As alwalys, the entire proceedings were broadcast and can be read in Hansard
Before we tell you about the session you might like to know …
Who were the experts? And who invited them?
We understand Chris Robertshaw MHK invited Lord Brennan and Ms Javinda Sanghera
Dr Allinson invited Mr Bob Fayle
In addition, Howard Connell, who drafted the Act (with Dr Allinson MHK) lent his drafting and legal knowledge to the debate.
It was a long session, with questions and answers going back and forth from members to experts on a variety of subjects, but it might help to know the backgrounds and qualifications of the invited experts.
Lord Brennan QC was introduced by Chris Robertshaw MHK as a Member of the House of Lords and an eminent lawyer. What he didn’t say was that Lord Brennan is also a prominent Roman Catholic, a Trustee of the Westminster Diocesan Trust, a Trustee of the Lord Brennan Catholic Educational Trust, a member, Advisory Board, Fondazione Centesimus Annus (Vatican) and Chairman of its UK Chapter, and a past President of the Catholic Union of Great Britain whose primary objective is to ‘champion the spiritual, moral and social teaching of the Catholic Church in the public sphere’. http://catholicunion.org.uk/
Javinda Sanghera CBE was introduced as founder of Karma Nirvana, an organisation which supports men and women affected by honour-based abuse and forced marriage. She was also identified as a spokesperson for StopGendercide which campaigns against abortion for reasons of gender (however, she said that she didn’t represent them (Hansard line 691) despite a press release being issued by StopGendercide with a quote from her that same morning!) Confused? We are!
But here are the links to her organisation and a copy of the press release. https://www.karmanirvana.org.uk/
Until his retirement last year, Bob Fayle was Consultant in Obstetrics and Gynaecology at Nobles Hospital, Isle of Man. He has direct experience of abortion services in the Isle of Man, and particularly in what could be referred to as late (post 20 week) abortions.
On his LinkedIn profile, Howard Connell describes his position as ‘Drafting primary legislation for the Isle of Man Government and Members of Tynwald (the world’s oldest parliament in continuous existence) across the whole range of Tynwald’s competence’.
And now to the detail: the clauses and possible amendments to the Abortion Reform Act 2018
We know we’re repeating old news, but here is the link to the actual Act so you can see what was being discussed by the Committee of the Whole House.
As you can probably guess from the expertise of the invited guests, the discussion was predominently (but not exclusively) about
- Coercion (and informed consent)
- Conscientious Objection
- Terminology used in the Act (particular around late-term abortions)
- Buffer Zones
- De-criminalising abortion in the Isle of Man
For the entire discussion we suggest you read pages 18 to 73 of Hansard (link above). Here we will just give a snapshot which we hope will give you a flavour of the thoughts of some of our MHKs. (NB Julie Edge MHK was absent)
No amendments were published before the sitting, but some MHKs were happy to have their proposed amendments discussed by the House (and thus recorded in Hansard). To keep it simple we’ve concentrated on these possible amendments with links to the relevant lines in Hansard if you’d like to refer back.
Number 1: an amendment suggested by Howard Quayle MHK
One suggested amendment to the Abortion Reform Act 2018 stood out above all others:
It refers to Clause 6 (7)
This subsection applies ‘if, according to the pregnant woman, there are serious social grounds justifying the termination of the pregnancy’
Howard Quayle MHK suggested an amendment removing this subsection IN ITS ENTIRETY
In other words, this proposed amendment shows that Howard Quayle MHK would ‘allow’ women to choose an abortion up to 14 weeks of pregnancy but that he doesn’t really believe that women can be trusted to make the right decisions regarding their own reproductive health care.
Or, as Mr Quayle went on to say (Hansard line 1943)
“you could use any excuse to have an abortion”
The implication of removing Clause 6 (7) is that a woman in the Isle of Man could only have an abortion between 14 and 24 weeks if she met Clause 6 (4), 6 (5) or 6 (6)
- there is a substantial risk of serious injury to the pregant woman’s health or life Clause 6 (4)
- there is a substantial risk that the foetus is or will be affected by a significant physical or mental impairment … Clause 6 (5)
- or if, according to the pregnant woman, the pregnancy resulted from rape, incest or other unlawful intercourse Clause 6 (6)
Sound familiar? It does to us – it sounds a little like the ‘medical defences’ in the 1995 Act, the one the Abortion Reform Act 2018 seeks to repeal.
CALM thinks this proposed amendment is TOTAL UNACCEPTABLE.
Long before Dr Allinson MHK drafted this bill, CALM set out its own agenda calling for abortions to be available on ‘social grounds’. Later, the results of the public consultation showed that:
- 82.8% believe that that there are some social factors or situations when a woman should be able to choose to have an abortion
- 1686 people provided further comments on what these social factors could be, including domestic abuse, addictions, homelessness, lack of support and low income
In our own response to the consultation CALM wrote:
- We agree that the serious social grounds as listed in clause 6 (7) would be appropriate for an abortion to be granted after 14 weeks up to the end of the 23rd
It was on the advice of professional bodies and lawyers that the list of ‘serious social grounds’ was deleted from the Bill after the consultation as it was seen to be self-limiting.
We won’t know until next week if Mr Quayle is actually going to table this amendment and if so, it won’t be debated until the next sitting of the House of Keys on 6 March. Then we’ll find out what the other 23 members think, and how they vote.
BUT (and it’s a big ‘but’) if Mr Quayle’s amendment is supported by a majority, it is possible that Clause 6 (4) (‘.. if the continuation of the pregnancy would pose a substantial risk of serious injury to the pregnant woman’s life or health‘) could cover ‘social grounds’ because ‘health‘ is defined in Clause 3 as ‘..a state of complete physical, mental or social well-being‘.
That sounds a bit complicated to us, and we believe that by seeking to remove Clause 6 (7) Mr Quayle is trying muddy the waters and introduced uncertainty – both for women and their doctors.
Clause 6 (7) is there for a reason – to give clarity and choice to women who have good reasons for not wanting to continue with the pregnancy.
Number 2: another amendment suggested by Howard Quayle MHK
This one is about the pre-abortion counselling – Clause 6 (9)
‘Before abortion services are provided to a pregnant woman, she must be offered counselling if it practicable to do so in all the circumstances and without causing undue delay in the provision of these services.’
The key words in this clause are ‘offered’ and ‘undue delay’.
Mr Quayle’s proposed amendment to this would make counselling mandatory and enshrine in legislation a cooling off-period – he suggested 3 days – between counselling and the termination. (Hansard lines 2344-2359)
Our view of this tallies with the medical professionals (Mr Fayle and Dr Allinson) and many other members. Counselling should be OFFERED but no-one can be forced to have it. In addition, Mr Fayle said (Hansard line 2548-50 and elsewhere) that there is ‘good guidance from the Royal College of Obstetricans and Gynaecolgists’ regarding running counselling in abortion services and that it is ‘good practice’ to offer women time to think their decision over.
CALM thinks that this proposed amendment is unacceptable
In our response to the public consultation we said:
- CALM has always called for better access to counselling services as part of our campaign message. Our views on counselling are as follows:
- We firmly believe that counselling should be made available to those who want it at any stage before or after an abortion.
- We believe pre- and post-abortion counselling should be NHS fully funded.
- Counselling should be available, without charge, by whatever means necessary for the pregnant person to be able to access it, be that face to face on island, by telephone or through a private provider. This will depend on the person’s circumstances and therefore, it would be helpful to have more than one route to counselling available.
- All providers of counselling must be non-directive and independent. It would be highly inappropriate and exploitative for anti-abortion activist organisations such as “Life Pregnancy Counselling” to deliver these services, and the NHS should not deliberately or inadvertently signpost towards this type of organisation.
Mr Quayle’s proposed amendment would not only make counselling mandatory but it would also introduce a delay of some days. CALM would like to remind him that these days could be the difference between a non-invasive medical abortion and a surgical one and undermines the woman’s right to choose what is best for her in her situation.
Or, as Clare Bettison MHK said in the House of Keys on 30 January:
‘the principle that a woman should have autonomy to make her own decisions about her healthcare needs; the principle that a woman knows what is right for her own body.’
Number 3 – another amendment proposed by Howard Quayle MHK
And now we come on to gender selection.
Hansard records a long discussion about this issue, tied up in the discussion about coercion and informed decision making but the crux of Mr Quayle#s amendment is about whether there should be a new clause in the Bill specifically about gender-selection abortions. .
Ms Sanghera said that abortions of female foetuses happen because in some cultures girls and women are not valued. There is no hard evidence with numbers of abortions happening for this reason in the UK and certainly none for the Isle of Man, but this could be because they aren’t reported. Mr Fayle said he’d only once been approached to abort a female foetus simply because it was female – in the UK in the 1980s – and pointed out that (Hansard lines 1354 -57) women being coerced into termination for gender selection won’t give that as a reason. He also said that termination for gender selection would result in a doctor being called to appear before the General Medical Council and then struck off.
Howard Quayle MHK is proposing an amendment (Hansard lines 1191) ‘based on the termination of pregnancy on the grounds of sex of the foetus’ with a subsection (Hansard 1197-1200) ‘which makes it clear that if, for example, the family history indicates a predisposition to a genetic discorder particularly associated with one gender than the other, a termination of a foetus would not be precluded.’
Mr Fayle, Lawrie Hooper MHK and Dr Allinson MHK all said that the question of consent and coercion should be a matter for Department of Health guidelines not legislation and Dr Allinson (Hansard lines 1059-1079) pointed out that the GMC, Royal College of Midwives and the Royal College of Nursing all provide clear guidelines around the subject of coercion and informed consent, and these guidelines are already applied in the Isle of Man. He also reminded the House that since 1995 abortion has been LEGAL in the Isle of Man (although access is very restricted) and although it’s not widely reported, the Family Planning Clinic offers counselling and already follows these guidelines.
The real question is whether or not a woman has been coerced into having an abortion and CALM believes that although Mr Quayle’s proposed amendment might be well-meaning, it duplicates Clause 9 (1) ‘a person must not provide or assist in the provision of abortion services to a woman unless the woman has given her informed consent’.
Number 4 – David Ashford MHK on the subject of conscientious objection
This is about where the burden of proof lies in Clause 8 and whether or not prosecuting a medical professional for their conscientious objection to abortion would violate employment rights and/or the Equality Act.
Mr Ashford’s proposed amendment would be to remove Clause 8 (2) ‘In any legal proceedings the burden of proof of a person’s conscientious objections rests upon the person who claims to rely on it.’ ‘by virtue of the fact that we have subsections (4) and (5) which lay out when someone would not be acting legally anyway’ (Hansard lines 2134-2136)
Chris Robertshaw suggested (Hansard lines 220304) that the DHSC could hold ‘a simple register of declarations that were permanently in position’
Howard Connell replied (Hansard 2206- 2209) that this would be possible ‘bearing in mind that there is a requirement for authorisation for any medical professonal to actually undertake any of the activitiees in the Aact (and) it could be part of the authorisation to record that the exception arose’.
In non-lawyer speak we think this means that as everyone who undertakes any abortion services has to be registered, anyone with a conscientious objection to abortion could be listed in that register so wouldn’t have to provide any further proof.
But we’ll have to wait until the 6 March sitting to find out if Mr Ashford intends to table his amendment, and how it’s worded before we know the exact implications.
Number 5 – possible amendment regarding buffer zones
As you probably know, the Act as it stands doesn’t contain anything about providing buffer (or safe) zones around facilities providing abortion services.
However, CALM understands that since the recent protests by anti-choice groups outside Tynwald, in Strand Street and particularly outside Nobles Hospital, there is a much wider support for this provision amongst members of the House of Keys and that an amendment to the Act to this effect is being drafted (Hansard lines 2653 – 2695)
In CALM’s response to the public consultation we said:
- We note the draft legislation currently does not include provision for anti-protest (or buffer) zones outside clinics. Whilst we welcome free-speech, CALM believes this provision is necessary to avoid harm to those who are using abortion services. This must apply to clinics where abortion services take place as well as any other abortion related services (e.g. counselling).
In addition, over 85% of those who responded to the public consultation said they that there should be legal protection to prevent demonstrations or protests outside facilites providing abortion services.
CALM is delighted that our politicians have listened to public opinion but we don’t have any more information on the wording of the amendment so, like you, we’ll just have to wait until the amendments are published prior to the 6 March sitting.
More subjects that attracted much debate and discussion (though not, at the moment, any suggested amendments) were:
The discussion about late-term abortions really came down to terminology, and particularly Clause 6 (8 d)
From the start of the 24th week of gestation …. there is a substantial risk that, were the child born alive .. (ii) the child would suffer a significant impairment which is likely to limit either the length or quality of the child’s life
CALM is not surprised that this clause was the one that attracted most attention. In answer to a question from Lawrie Hooper MHK (Hansard lines 1662-7, 1677-86, 1695-1704) Lord Brennan said that the IOM should be careful of use of ‘significant impairment’ rather than ‘seriously handicapped’ (the term used in UK Abortion Act) as it isn’t clear.
Mr Connell explained why this change had been made (Hansard lines 1731-35) as it is ‘completely inappropriate in disability legislation in the modern context’.but that more changes may be made if the House wishes.
Dr Allinson MHK expanded on this (Hansard lines 1797-1708) ‘One of the reasons I changed the wording was due to feedback … particularly from disabled groups who frowned particularly on the phrase ‘it would suffer from severe handicap’ being extremely objectionable’… (and to) bring the legislation and the wording of it completely up to date’.
Mr Fayle was able to expand on the extreme rarity of abortions after 24 weeks (less than 0.4% of terminations) and the reasons behind them (Hansard lines 1835-61). ‘remember this is a termination act … any pregnancy beyond 21 weeks and 6 days should be referred to a specialist unit .. (this is very rare in the Isle of Man and).. in my career I had one woman I referred .. … to the foetal centre in Loverpool for this to be performed.”
Mr Fayle also pointed out (Hansard lines 1856-1859) the difference between ‘termination of pregnancy … for a very serious condition .. and early delivery of babies after 24 weeks’.
It is quite likely that amendment to the Act might be tabled to alter the language/terminology used in this subsection of Clause 6(8) but as yet, CALM is not privy to them.
De-criminalisation of Abortion in the Isle of Man
This is a key part of the Abortion Reform Act 2018. Clause 17 covers the IOM Acts which it repeals, and includes:
(a) sections 71 and 72 of the Criminal Code 1872 (which states that anyone attempting to cause an abortion – or assists her – can be prosecuted and imprisoned)
You can read the 1872 law here:
During the session Alf Cannan MHK had a question regarding Clause 11 (3) and 11 (4) which criminalises those who prescribe or supply a relevant product to ‘procure her miscarriage otherwise than in a National Health Service hospital or otherwise in compliance with that section’ (Hansard 2885 – 2890) but then goes on to ‘absolve’ a woman of any blame when ‘soliciting or inciting such a person‘ (Hansard line 2892).
In his answer to Mr Cannan, Dr Allinson MHK said ‘It is very important that we do not criminalise women on the Isle of Man for wanting to procure a termination’ (Hansard lines 2918-20)
It’s worth saying again that currently anyone who orders abortion medication – whether for themselves or anyone else – from any source could be prosecuted. A woman who goes to a private clinic off the Island for a perfectly legal termination is on her own – she often can’t tell her GP, or expect any follow-up healthcare.
When our politicians pass the Abortion Reform Act 2018, abortions in the Isle of Man will be LEGAL and SAFE.
That’s it from CALM for now.
You can read the transcript of the whole sitting in the link above and we’ll provide as much information as possible once the full list of proposed amendments is published.
But to finish, who better to quote than Clare Bettison MHK in her speech in support of the second reading of the Abortion Reform Act 2018 on 30 January when it was UNANIMOUSLY passed by the House of Keys:
“We hear time and again these days that we should empower women, we should teach young women and children to understand about consent, yet we teach them that making choices about their reproductive healthcare is not always okay. To pretend that today’s vote is simply about being pro- or anti-abortion would be disingenuous and naive. The vote today is about far broader principles: the principle that a woman should have autonomy to make her own decisions about her healthcare needs; the principle that a woman knows what is right for her own body….I stand for choice, and I stand here for our future”