Finding the Hidden Constitution: Explaining Ireland’s Abortion Law

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On Saturday, we heard of the Irish state’s latest efforts to police its abortion law. The story has emerged from a series of High Court hearings. Reporting on the case is restricted by court order, and so facts have emerged drip by drip. On Tuesday, we heard a journalist almost in tears on Morning Ireland finally make sense of the story. A young woman, still in her teens, arrives in Ireland earlier this year. The Protection of Life in Pregnancy Act, 2013 is in the first months of its operation. She does not speak English. She has no money. She has few friends or family to call on. She has recently been raped in the country she had left to come to Ireland. During a medical assessment, presumably part of the asylum system, she undergoes a medical examination and discovers she is just over 8 weeks pregnant. She immediately says she would rather die than have the baby. The practitioner who examines her refers her to the Irish Family Planning Association (IFPA), a non-state agency, which is allowed to provide ‘non-directive’ crisis pregnancy counseling under the legislative framework which governs abortion.

Organisations like the IFPA cannot legally ‘advocate’ abortion, which means that there are limits to the practical advice they can give. They advise her on obtaining the exit and re-entry visa she would need to travel outside the State, and she is assisted to apply. But, under the 1995 Abortion Information Act, they cannot make an appointment for a woman in this position with a clinic outside Ireland. They cannot pay her travel, or her treatment costs. No-one can arrange support for her on ‘the other side’ until they know that she can get to England. There is no point in going North: the law there is little better than in the South. Northern Irish women also travel to the mainland UK, and must pay for terminations. And of course, even at 8 weeks gestation, a woman cannot end her pregnancy legally in Ireland. To do so is a crime under our new Act, and attracts a sentence of up to 14 years in prison – the victim of rape can find herself a criminal.

Two months pass. No visa comes. Now the time for a medical abortion is long gone, and a surgical one will be needed. These are expensive and she sees no way to pay. Poor women rely on borrowing, family members, fund-raising by friends, access to the Abortion Support Network. But this woman, for whatever reason, cannot imagine accessing the necessary funds. Newly arrived in the country, faced with an idiosyncratic law, outside the networks of knowledge and friendship which can secure illegal access to the abortion pill, this young woman is trapped. She continues to express her wish to die if the pregnancy cannot be ended. At sixteen weeks pregnant, she attempts to hang herself. When this fails, she retreats into a depression. She stops eating or drinking, or speaking to anyone. She makes a second suicide attempt. We do not know where she lived during this lonely period; perhaps in one of Ireland’s notorious direct provision centres.

None of this is unusual for Ireland. This is not the first woman left stranded by the ‘right to travel’ which is supposed to substitute for a humane abortion policy. This is not the first woman to have been compelled to carry on a pregnancy she would have ended early, had the opportunity been there. What makes this case different is that it comes in the aftermath of the passage of the Protection of Life in Pregnancy Act 2013; the Act passed to respond to the ECHR’s judgment in A, B, C and Ireland – the Act designed to bring ‘certainty‘ and ‘procedural rights’ to the question of access to a Constitutional entitlement first properly acknowledged in the ‘X case’ 1992. When she is at about 24 weeks pregnant, a family friend assists her to contact a GP. For the first time, she is able to make herself heard when she says that her pregnancy is putting her life in jeopardy. The GP refers her to a psychiatric hospital, where she spends one night. The next morning she is transferred to a maternity hospital. Finally, she is able to make an application for an abortion under s.9 of the Act.

To access an abortion in Ireland a woman must meet the test set out in the Act. Two psychiatrists and an obstetrician must agree that:

  1. there is a real and substantial risk of loss of the woman’s life by way of suicide, and
  2.  in their reasonable opinion (being an opinion formed in good faith which has regard to the need to preserve unborn human life as far as practicable) that risk can only be averted by carrying out the medical procedure.’

This is a two stage test. (Hear Simon Mills here).It is not only a matter of determining that the woman’s life is at risk, but that an abortion is the only reasonable means of eliminating that risk. At 24 weeks, a woman could obtain an abortion in England where necessary to protect her life, or to preserve her from grave damage to her physical or mental health. But the second limb of the test clearly steers doctors away from certifying that the woman is entitled to access an abortion. This Act is designed to protect the right to life of what the Eighth Amendment to the Constitution calls ‘the unborn’, and the Act clearly contemplates that this right mandates doctors to bring about a live birth where possible.

So this woman is refused an abortion. Instead, she is told that she must undergo a Caesarean section. She has the right to appeal this decision under the Act but, for whatever reason, she does not. In despair, she goes on hunger and thirst strike. A court application is made, seeking an order to have her forcibly hydrated, so that she will be strong enough for the C-section. The order is granted, but ultimately it is not needed, as the woman accedes to demands that she take food and liquids. She seems to have understood that she would be granted an abortion if she complied. Several days pass before she realises that C-section is the only option which will be made available to her. The C-section is performed, and a baby – now in neonatal intensive care, and under the care of the State – is delivered at 25 weeks. If she had refused the C-section, the hospital would have gone again, to the High Court, seeking an order to compel her to have it. The woman is discharged from hospital a week later. She is now, the journalist tells us, ‘extremely fragile’, ‘delicate’, ‘broken’. It is worth remembering that under our Constitution, whatever care it is receiving now, this child is not an Irish citizen. Indeed our Supreme Court has said that a pregnant woman in this position could be deported, because the ‘unborn’ of foreign origin has no right to be born safely in Ireland.

In a sense I cannot add to, or improve upon, William Wall’s elegant reflection on this case, except to underline and re-iterate what this case may mean for Irish abortion law. As things stand, we do not know when we will discover how the state’s organs and agents reasoned to brutalising this young woman. Doctors for Choice have asked for an independent inquiry, headed by the man who chaired the inquiry into the death of Savita Halappanavar. But we are unlikely to get one. The HSE will conduct an inquiry into this case. But it will not consider the reasons why a C-section, rather than an abortion was performed in this instance, at likely great cost to the health of this woman and the baby. Somewhere in the High Court digital recordings archive is the evidence of the legal arguments made by lawyers for the HSE, the woman and the then unborn baby at a time when it was sought to compel this woman to accept medical treatment including, apparently, Caesarean section to facilitate a birth she plainly did not want. In particular we do not know whether the arguments accepted by the High Court when it made its hydration order were based on the woman’s own best interests, on the basis of some previously undisclosed right of the ‘unborn’ to be born alive. Precisely what law shadowed this woman’s experience? What were its terms? The not knowing is a form of regulation. Any worthwhile inquiry must answer these questions. We keep being told we are not ‘in full possession of the facts’ about this case – a subtle undermining of protest by those who like to frame themselves as ‘in the know’. We are not in full possession of the law.

Even against a backdrop of grave uncertainty, we can make three key claims, which must become the subjects of government and public debate.

  1. On the facts as reported, this woman’s human rights were violated. Given the shape of our public discourse Irish people sometimes have difficulty in grasping that a woman is legally wronged by the abortion regime even if she does not die. Under the International Convention on Civil and Political Rights, as a raped woman, she was entitled to access an abortion. But she also suffered violations under our law. The long delay between the time at which this young woman first reported the risk to her life to the authorities and the time when she was first assessed under the Act may be repairable, in theory, by publishing new protocols or guidelines. But the delay was a sustained breach of her rights to privacy, and to freedom from inhuman and degrading treatment. In a very real sense, her experience was very close to that of Ms. C in A, B and C v. Ireland. She was entitled to access a termination in Ireland, but no reliable accessible mechanism was available – despite the new legislation – to enable her to vindicate that entitlement. Let us be clear. Ireland remains in breach of its obligations under the ECHR. The Government has not kept its own limited promises to address that breach.
  2. There is a very real risk that the suicidal woman’s constitutional right to access a life-saving abortion is illusory. It may be that the courts, and the HSE and its doctors are enforcing an interpretation of the Constitution which requires, from the point of viability, the state must ensure an opportunity for live birth by some forced intervention: by C-section, by induced labour or, potentially, by requiring the pregnancy to be sustained until viability even against the mother’s firm objection. Let us be clear. The case did not consider this sort of scenario – Miss X was only 12 weeks pregnant, and so the question of what an ‘equal’ right to life at a later stage of pregnancy might entail did not arise. We have had no judicial guidance in this area. Moreover, the Act does not, contrary to HSE suggestions, provide that a woman who is constitutionally entitled to an abortion may be required to undergo a C-section to terminate the pregnancy instead. Even a cursory reading of ss.8 and 9 discloses that it only refers to medical procedures which end ‘unborn life’. The Act undoubtedly allows for life-saving abortion at 24 weeks. It seems very likely that the Constitution, and the Act designed to implement it, is being interpreted here by petty unelected officials to require practice which is, as Ruth Fletcher has written here, harmful for the woman, if not dangerous for the child. The HSE are about to publish guidelines on the treatment of women whose lives are placed at physical risk by pregnancy, which reportedly express a similar inclination to attempt induction where possible, instead of allowing the woman to access an abortion. We need a public explanation and justification of this sort of reasoning, so that we can decide whether law reform is required to prohibit it.
  3. It would be foolish ever to think that stories of what happens to women under their laws will necessarily move the Irish political classes to action. I hope that all political parties now recognise that it was wrong to pass the Protection of Life in Pregnancy Act in its current form and will commit, despite their instinctive reluctance, to a referendum in the lifetime of the next government. (See Fiona de Londras here and here#Repealthe8th is a coherent accessible demand. But we cannot solve the sorts of problems reported in this case simply by repealing the Eighth Amendment. The issues require deeper discussion, and even pro-choice lawyers will disagree about the best route to take.
    1. I favour stripping the abortion provisions from the constitution and decriminalising abortion. Irish people under 50 have never had an opportunity to vote on an abortion law which was not strangled by a constrictive interpretation of the ‘right to life’. I think that the genesis of the Amendment, and the subsequent referenda, though they met the minimum standards to effect constitutional change, were almost uniquely politically dysfunctional (see Sandra McAvoy here) to an extent that puts their legitimacy in serious question. (It was truly astonishing to see one of the architects of this constitutional provision denigrate aspects of international human rights law as ‘political’ while standing over this provision this week). Finally, I think that by removing that provision, we can at least attempt to free the law from certain difficulties of conservative constitutional interpretation – by judges but, more importantly by state agents charged with applying the law – which have dogged the Amendment since its passage.
    2.  I think that we should resist efforts to insert a new provision covering, for example, rape, incest and fatal foetal abnormality while leaving women in other situations to ‘travel’. By exceptionalising abortion – by taking the position that it is generally to be permitted only in the most grueling of circumstances – we run the risk of creating new, if presently unforeseeable, categories of devastating hard interpretation cases further down the line.
    3. Any change to the text would need to be accompanied by clear-sighted discussion of what the Constitution might be read to ‘say’ about life, bodily integrity, autonomy, privacy, inhuman and degrading treatment and so on in the Eighth’s absence. Because there has been so little strategic domestic litigation of the Amendment, at least by pro-choice agents – we are very much in the dark here. It may be that, as has been suggested, a Constitutional Convention is an appropriate forum in which to discuss issues of this kind, provided it does not become a delaying tactic.
    4. Finally, whatever the text of the Constitution becomes, we must unpack and reform the legislation passed to enforce it – including the Abortion Information Act and the Protection of Life in Pregnancy Act. We must unpack and rethink the multiple intersecting lines of policy – medical, immigration, child protection, mental health and so on – which shape women’s access to abortion. We must research, understand, unpack and challenge the forms of ‘clinical best practice’, habitual power or well-intentioned but thoughtless routine which would subject women to degradation and distress of the kinds reported in this case and that of Savita Halappanavar. We must determine, for ourselves, the rights standards which will animate the interpretation and application of any new legislation. In truth, nothing short of a wholesale orientation of the Irish state approach to the care and support of pregnant women will bring us to an acceptable legal position. No blue pencil can do that work, and none of it can be rushed. Repealing the Eighth, for me, is the first of several slow steps.

For those who are interested in interrogating and reforming the law in Ireland, there are several options:

  • Lawyers, legal academics and law students – whether based in Ireland or abroad -can join the new advocacy organisation Lawyers for Choice – lawyers4choice@gmail.com.
  • Come to this September event on building a coalition to Repeal the Eighth.
  • Today, we’re gathering outside the Irish Embassy in London at 6pm, to protest. Come with us if you can. Protests are also taking place in cities across Ireland.
  • Several important issues of reproductive justice will be considered as part of the Northern/Irish Feminist Judgments Project (www.feministjudging.ie). This will provide a much-needed forum for rethinking the habits of constitutional interpretation, legal argument and legal education which generate cases of this kind. You are welcome to express an interest in the project by emailing irishfeministjudge@gmail.com.

Máiréad Enright is Lecturer in Law, University of Kent (UK)

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  3 comments for “Finding the Hidden Constitution: Explaining Ireland’s Abortion Law

  1. B. Raj Sid
    20 August 2014 at 6:09 pm

    As one can see there is violation after violation and Ireland enforced the law on the raped girl who wanted the abortion. This is disgraceful.

  2. latch
    22 August 2014 at 8:44 am

    Seems paragraphs missing. Can you repair pls?

  3. Berni Bradley
    22 August 2014 at 11:19 pm

    Ah choice , the devil is in the detail as usual, hysteria works, EVERY WOMAN is being denied human/basic rights, FREE Choice. No Heavy moral stuff is allowed and while we are o the subject, time to permit euthanasia and get rid off all that guilt of ailing, obsolete homosapiens , well, past their sell by date, who agree to exit stage b …………. WHERE WILL IT END? Or do we want to subjugate all moral responsibility to the gutter press and a hypocritical, self serving, secular Ireland hiding behind it,s fake moral banner of so called human rights.

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