On Thursday, June 13th, the Irish government published its Abortion Bill to regulate the extremely limited circumstances under which an abortion is lawful in Ireland. The Bill’s conscientious objection provision reflects the limited development of ethical thought, debate and education in Ireland.
Medical ethics guidance was seen as unnecessary for decades in Ireland when law, religion, and ethics were sung from the same hymn sheet. The law was brought into conflict with religion and ethics when the Irish Supreme Court struck down the criminal prohibition on access to contraception in 1973. The solution of the 1979 family planning legislation was to restore pre-eminence to the conscientious objection of a clinician or pharmacist and insufficient weight to a patient’s legal right of access to contraceptives. The legislation provided a patient with no ability to identify a clinician with no conscientious objection. Thus, patients’ access to contraceptives varied significantly from region to region.
In 1979, the Medical Council was conferred with responsibility for ethical guidance which the Council provides through a guide published every five years. The first edition of the guide was issued in 1981. Each edition is longer than its predecessor, providing enhanced guidance on ethical issues. Although the guide is not a legal code, the Council may sanction a doctor for breaching the guide, including striking a doctor off the register. The guide’s ethical position reflected the legal and ethical divergence on family planning. In 1992, the Supreme Court permitted abortion where a pregnancy was a threat to the mother’s life. However, the 1994 guide maintained the Council’s ethical view that abortion was professional misconduct. Thus, a doctor ran the risk of being sanctioned for performing an abortion that was unethical while simultaneously lawful. The Irish courts would have quashed such a sanction because the doctor was acting within the law. The Council’s ethical view was identical to Roman Catholic dogma on family planning.
There was a gradual shift in the Council’s approach to conscientious objection and family planning. The Council reduced the weight to be attached to a doctor’s conscientious objection by altering the 1998 and 2009 ethical guides. The 1998 ethical guide advanced patients’ rights by requiring a doctor with a conscientious objection to provide a patient with the names of other doctors. However, the ethical guide did not go so far as to require that a doctor provide the names of other doctors knowing that these doctors did not share his or her conscientious objection. A patient would discover that the second clinician did or did not share the conscientious objection of the first clinician during their initial consultation. The 2009 ethical guide qualified this principle by stating that it did not absolve a doctor from their responsibility to a patient in an emergency situation.
The legal and ethical positions on abortion did not come into alignment until the 2004 guide. The Bill’s conscientious objection reflects the ethical guide with one important change: a clinician must make arrangements for the transfer of a pregnant woman’s care so that she may obtain an abortion. This change has been welcomed for striking the appropriate balance between respecting the conscientious objection of clinicians whilst vindicating the right of women to access lawful medical treatment. This change also completes the philosophical transformation from ethical absolutism to ethical relativism in Irish medical ethics.
Patients are the guinea pigs to discover whether clinicians adhere to absolutism or buy into relativism. The transformation from absolutism to relativism has been accompanied by vigorous and informed public debate on ethical issues in many states. There has been no such debate in Ireland. The transformation was driven by the need to bring law and ethics into harmony. There is a need for Irish society and policy makers to appreciate that such a transformation requires ethical debate and teaching.
Dr. Adam McAuley is a Lecturer in Medical Law in the School of Law and Government at Dublin City University. He is a member of the Irish National Advisory Committee on Bioethics, and served as an advisor for Fordham University’s Famine Tribunal in April.
All posts and comments on the Ethics and Society blog are solely the opinions of their respective authors, and do not represent the position of Fordham University or the Center for Ethics Education.
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