CONCERNS HAVE BEEN raised about potential loopholes in the Government’s legislation related to safe access zones outside facilities where abortions are conducted.
During a discussion about the legislation today, members of the Oireachtas Health Committee questioned the apparent lack of a centralised system whereby gardaí could log warnings given to people who protest outside such centres.
Health Minister Stephen Donnelly said that while an offence under the upcoming legislation could be logged by gardaí in the national Pulse system, where crimes are recorded, there is currently no centralised way to log formal warnings.
Under the Health (Termination of Pregnancy Services) (Safe Access Zones) Bill 2023, a person who is protesting outside an abortion facility could be given a warning for their first potential breach of the law.
The legislation would introduce 100-metre exclusion zones around all hospitals, GP practices and family planning clinics. Anyone who repeatedly protests outside such facilities could face a €2,500 fine or six months in prison.
Donnelly told the committee that the warning approach is included in the Bill because “legitimate” protests by either pro-choice or pro-life demonstrators may unwittingly pass by, or be close to, an abortion centre.
‘Facilitating legitimate protests’
The minister gave the example of protesters potentially being charged with an offence for walking within 100 meters of a maternity hospital or GP centre in Dublin city – something that would be difficult to avoid on a typical protest route from the Garden of Remembrance to Leinster House.
If we didn’t have the warning system, people marching could potentially be guilty of an offence for simply having walked past the Rotunda [maternity hospital] with signage saying ‘We demand access to termination services’ or ‘We demand you stop access to termination services’.
Donnelly said it would be up to gardaí’s discretion to decide if an offence has been committed or if a legitimate protest is happening.
He said the planned legislation attempts to “find a way of facilitating legitimate protests on either side, a legitimate demonstration on either side of this argument, whilst trying to close off any loopholes”.
Donnelly stressed that women should not be harassed while on their way to access medical services. He said if people ignored the warning and remained in the safe access zone, gardaí could charge them with an offence.
“We do rely on the guards’ discretion to do this in a sensible way,” the minister added.
‘Bizarre’
A number of TDs said that while they understand the rationale for a warning to be given in some circumstances, such a system would become a mockery if gardaí have no way of telling their colleagues that a person has already received a warning.
Donnelly said his department has discussed the issue with the Department of Justice but it would be inappropriate for him, as Minister of Health, to instruct An Garda Síochána (AGS) how to conduct its work.
He said that if a centralised recording system for warnings is established within AGS in the future, it could be used to implement this particular legislation – but it doesn’t currently exist.
People Before Profit TD Bríd Smith said it is “bizarre that in 2023 the gardaí don’t have a way of knowing this guy was in Cork and then he went to Kerry to protest in two different places in the same day, that they don’t have a way to communicate with each other”.
Social Democrat TD Róisín Shortall echoed this sentiment, noting the committee has expressed its concern about this particular issue “at length over the course of a few meetings”.
She gave the example of a person protesting outside an abortion facility in Cork being given a warning and then protesting outside a similar facility in Dublin a few weeks later.
If there is no centralised system on which to log warnings, gardaí in Dublin will not know that this person has already been issued with a warning.
Therefore, they may issue a second warning, rather than charge the person with an offence despite the fact – unbeknownst to the garda – it is not the person’s first time breaching the legislation.
Shortall stated: “I think we all struggle to figure out how on earth [gardaí can inform their colleagues of previous warnings]. Maybe a guard in Cork records something in his notebook, but where does that information go?”
She continued: “I would have a concern that the legislation may not be as effective as it should be because of the difficulty in that internal communication.”
‘A mockery’
Sinn Féin TD David Cullinane added: “We’re all in agreement, including the minister, that a centralised recording system would be better. Because I think it’s essential to the effectiveness of the very Bill that we’re bringing forward.”
Cullinane noted that, aside from gardaí in different parts of the country not being able to share information about warnings, there could even be an issue within a single garda station.
He pointed out that if a garda changed their shift, the next garda on duty may not be aware of warnings handed out that day.
If gardaí are not aware that a particular person has already received one or potentially several other warnings about protesting in a safe zone, the person may not be charged with an offence despite being a repeat offender, he noted.
“The whole thing could become a mockery very quickly and that’s the problem,” Cullinan warned Donnelly.
He agreed to withdraw his amendment on the issue once the minister committed to ensuring that the warning system – and whether or not it’s working – is one of the issues examined in a review of the legislation.
Under the Bill’s current wording, the effectiveness of the planned law would be reviewed two years after coming into effect. Shortall suggested that the law should be reviewed after 12 months, while Cullinane suggested 18 months.
Donnelly agreed that the warning system would be one of the elements of the law that is examined within the review. He said he is not wedded to the review taking place after two years, but said enough time must have passed so the effectiveness of the legislation can be properly tested.
The committee today completed its consideration of the Bill which will now go back to the Dáil, then the Seanad, for further debate.
Donnelly could not confirm that the Seanad debate would happen before Christmas, but said it is “a priority” for his department that the legislation will be enacted as soon as possible.
‘Ding dong’ at previous meeting
At the start of today’s discussion, Donnelly apologised for his role in a “ding dong” at a previous committee meeting where there was a disagreement over whether or not members had been briefed on issues related to their pre-legislative scrutiny of the Bill.
Donnelly today said: “I just want to retract the comments that I made, I hadn’t realised that there was no briefing for the committee on the fact that the pre-leg scrutiny that you all did was actually being fully incorporated into the new Bill.
Everyone has a job to do, so I just want to retract [my comments]. In fairness, everyone’s trying to do our best.
The committee last week discussed a review by barrister Marie O’Shea BL of the Health (Regulation of Termination of Pregnancy Act) 2018, which was published in April.
Last Wednesday, O’Shea told the committee that the risk of criminalisation is having a “chilling effect” on doctors who provide termination services, while some doctors “actively obstruct” women from receiving treatment due to personal beliefs.
O’Shea said medical practitioners have “universally” told her that the impact of “having a criminal sanction there hanging over them, it has a chilling effect”.
“The criminal sanction on the providers is something that weighs very heavily on their mind,” she added.
In her review, O’Shea made a number of recommendations including the decriminalisation of abortion for medical professionals.
While women are decriminalised under the current legislation, it criminalises anyone who assists a pregnant person to obtain an abortion outside of the provisions of the Act – with a prison sentence of up to 14 years.
O’Shea’s report also recommends that the three-day wait before a woman can access a termination should be made optional, as well as recommending changes to how fatal foetal anomalies are handled.
The committee last week heard that the three-day wait is “patronising” and unique to abortion services.
Donnelly today said that a working group is considering O’Shea’s recommendations.
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