We have commented previously on the reform of abortion law in Ireland. After consulting the Council of State, the President signed the Protection of Life During Pregnancy Act 2013 into law on 30 July. The Act, which gives statutory effect to the terms of the Constitution of Ireland as interpreted by the Supreme Court in Attorney General v X [1992] IESC 1, will be commenced by order and the Department of Health intends to bring in three sets of consequential Regulations:

• The Protection of Life During Pregnancy Act 2013 (Certification Regulations);
• The Protection of Life During Pregnancy Act 2013 (Application for Review of Medical Opinion); and
• The Protection of Life During Pregnancy Act 2013 (Notifications).

The Act permits termination in three cases:

• risk of loss of life from physical illness (s 7), in which case two physicians, one an obstetrician and the other a specialist in the field of the relevant condition, must concur and, where relevant, must also consult the woman’s GP;
• risk of loss of life from physical illness in an emergency (s 8), in which case a single physician may diagnose the condition and perform the termination; and
• risk of loss of life from suicide (s 9), in which case three physicians must concur: an obstetrician, a psychiatrist with experience treating women during or after pregnancy and another psychiatrist – at least one of whom should consult the woman’s GP.

In addition, s 18 makes it clear that it is not an offence to travel abroad (usually to the United Kingdom) in order to have an abortion or to obtain or to make available within Ireland information about termination services lawfully available in another jurisdiction. The Act repeals ss 58 & 59 of the Offences Against the Person Act 1861 and s 22 replaces them with a new offence “to intentionally destroy [sic] unborn human life”, with a maximum penalty of 14 years’ imprisonment. What the Act does not provide for, however, is termination of pregnancy arising as a result of rape or incest (unless, presumably, it is likely to result in the suicide of the pregnant woman).

But the story does not end there. The Act makes no mention of hospital policies or institutional opt-out (though s 17 does provide for conscientious objection in the case of individual staff). Instead, the Schedule to the Act lists “appropriate institutions” at which legal abortions may be carried out and includes two voluntary Roman Catholic hospitals in Dublin: St Vincent’s and the Mater Misericordiae. The question then arises whether the Act (or the law generally) positively obliges the listed hospitals to provide lawful abortions where needed or simply permits them to do so.

The Irish Times reports that the Board of Governors of the Mater Hospital plans to discuss its position on the Mater’s inclusion in the Schedule to the Act and that two of its members have said publicly that the Act conflicts with the hospital’s religious ethos and may therefore be unconstitutional on the grounds that it violates the freedom of religion of the owners of the hospital, the Sisters of Mercy. Eoin Daly, of the Law School at University College Dublin, discusses all this in an interesting post on the Human Rights in Ireland blog.