The High Court of Justice rejected an appeal seeking to restrict abortions performed after the 24th week of pregnancy. Justices Ofer Grosskopf, Yosef Elron, and Yechiel Kasher ruled Monday that setting any bar or stringent test for terminating a pregnancy runs counter to the clear language of the law, which leaves the discretion to the pregnancy termination committees.
The appeal was filed by the “For Life” NGO, whose stated goal is to “protect mother and fetus,” and a citizen named Oren Margalit. The appellants asked the court to instruct the Health Ministry to pass regulation to dictate the judgment of pregnancy termination committees, and to officially recognize that as of week 24 a fetus is viable and is therefore eligible for rights and duties.
The appeal claimed that the abortion-approval rate at the committees is 98 percent, and this raises suspicion that the conduct of the committees is improper and disproportionate; that there is call to examine the question of the fetus’ status in Israel; and that change is required in the standing of the husband or partner in regards to terminating a pregnancy, as someone who can represent the interests of the fetus.
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The state argued in response that the appellants’ argument is inconsistent with the language of the law. The state noted that the penal code lists four clear justifications for issuing a permit to terminate a pregnancy, and leaves statutory discretion in the hands of the committees to approve pregnancy terminations pursuant to these justifications. These justifications pertain to the age of the woman (under 18 or under 40,) extramarital pregnancy, fear for congenital disabilities, and risk to the woman’s life, or physical or mental wellbeing.
The state further noted that the high rate of approved requests doesn’t account for women who may wish to terminate a pregnancy but do not approach the committee, having verified the legal justifications, or those who refrained from approaching the committee following a preliminary talk with the committee’s social worker. The state also noted that there is a consistent decline in the rate of pregnancy terminations in Israel.
The justices also wrote in the verdict that the implementation of the law can be done by Director-General circulars, and not necessarily by regulation. “Director-General circulars are prepared by professionals, and as long as they do not run contrary to the justifications set forth by law, we see no cause to categorically prohibit them,” the verdict reads.
The justices noted that “pregnancy is a highly significant and consequential event in a woman’s life. Estimating the risk in pregnancy and its termination is a professional (medical and psychological) matter of the first order, and by the legislator’s decree it is entrusted to a professional committee consisting of relevant medical experts, and a social worker.”
Therefore, the ruling states, “any setting of a bar or stringent tests in regulation, as requested, is not only arbitrary but also counter to the clear language of the law, and in facts arrogates the committee’s professional discretion, set forth by the legislator in law.”