Abortion v Ireland: Past, Present and Necessary Future Developments

Abortion World Map

Credit: Abortion Worldwide Map http://www.worldabortionlaws.com/

INTRODUCTION

   “Abortion” and “Ireland” are two words which have never sat together comfortably in the same sentence. An area of constant and heated debate between pro-choice and pro-life lobbyists, it is an area which has been in dire need of address in this country for far too long. The Government’s recent commitment to legislate for the “X Case”, which will be discussed in greater detail below, has garnered a predominantly positive reaction from the public, many of whom have been vehemently marching for the introduction of such legislation ever since the tragic events which occurred in October of last year.

   On the 28th of October 2012, Savita Halappanavar died from septicaemia and multiple organ failure at University Hospital Galway. Having been admitted as the result of a failing pregnancy, she was denied an abortion due to the fact that the foetal heartbeat had not yet ceased. Once the tragic details of Savita’s death emerged, Ireland was thrust to the centre of the world stage, drawing international criticism for its strict abortion laws. The days and weeks that followed saw thousands upon thousands of pro-choice lobbyists marching at home and abroad, in an effort to inspire the introduction of legislation, based on the outcome of the X case, that would ensure that the women of Ireland would not be in danger of facing a similar fate to Savita should they be faced with such a situation.

   The following article aims to praise the announcement of the relevant legislation through examination of the X Case, but without forgetting the need for advancements in abortion law generally in order to vindicate the human rights of women (by reference to the Abortion Act 1967 and CEDAW) so that Ireland may meet the standard of protection offered to women in neighbouring jurisdictions. But first, it is necessary to outline the development of abortion law in Ireland over the years.

ABORTION IN IRELAND: THE LAW

Abortion in Ireland is governed by sections 58 and 59 of the Offences Against the Person Act 1861:

58 Administering drugs or using instruments to procure abortion.

Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable . . .to be kept in penal servitude for life . . .

59 Procuring drugs, &c. to cause abortion.

Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanor, and being convicted thereof shall be liable . . .  to be kept in penal servitude . . .

   The referendum on the Eighth Amendment of the Constitution was passed in 1983. As a result, Article 40.3.3 was introduced into the Irish Constitution after section 3 of Article 40, which reads:

3° The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

   In 1991, the European Court of Justice (ECJ) ruled in SPUC v Grogan, at the request of the Irish High Court, that a Member State could not prohibit the distribution of information on abortion. The Court explained that this is due to the fact that abortion could, in fact, constitute a service under the Treaty of Rome, and so a Member State could not prohibit the distribution of information by agencies having a commercial relationship with foreign abortion clinics.

   So far, it is plain to see that abortion was not viewed favourably in this country. The law was seemingly simple: if you want an abortion, go to England. Then, along came a case which would go on to become one of the most heatedly debated in Irish history.

THE “X CASE”

Attorney General v X (the “X Case”) represents a landmark decision by the Supreme Court in relation to abortion. The case centred on a fourteen year old school girl who had been raped by her neighbour, becoming pregnant as a result. The girl informed of her parents of her desire to commit suicide because of the pregnancy, and so the family travelled to England to seek an abortion. The Attorney General, who was informed of the situation by the Gardaí, obtained interim injunctions (a Court order which orders a person to stop or to do a particular thing) in the High Court restraining the girl and her parents from interfering with the right to life of the unborn; from leaving the jurisdiction for nine months; and from arranging and obtaining an abortion within or outside Ireland. The family, upon notification of the injunction, cancelled the planned abortion and returned to Ireland, where they contended the injunctions. They fought the restrictions on the basis they had a right to travel from the jurisdiction to do what was lawful elsewhere; that the mother’s right to life was itself in peril; and that such injunctions were unprecedented and should not have been granted.

The injunction was appealed to the Supreme Court, where it was overturned on based on the majority opinion that a woman was entitled to an abortion under Article 40.3.3 if there was a substantial risk to her life, with the risk of suicide being included.

It would seem that the logical next step would be to go ahead and legislate for Case X. Legislation is law which has been enacted by the legislature or government, and to do so would clarify what has already been established by the Supreme Court in this instance. But unfortunately, reason doesn’t always prevail. While the Court’s interpretation of Article 40.3.3 allows for certain lawful abortions, the fact that they have not been legislated for means that a pregnant woman (and her doctors) are faced with great uncertainty in cases like that of Savita’s. It is for this reason that the Government’s current commitment to legislate for the X Case has been met with an overall positive response.

ABORTION IN THE UNITED KINGDOM

   Yes, legislation for Case X does indeed represent a significant step forward for Ireland in dealing with the issue of abortion. However, it is highly doubtful that the upcoming legislation will hush discussions on the issue. Ireland’s laws will continue to be overly restrictive despite the legislation, which would only affect a margin of cases. The facts remains that over 4,100 women gave a Republic of Ireland address when attending UK-based abortion clinics in 2011 alone.

   Abortion in the United Kingdom is governed by the Abortion Act 1967, which legalises abortions which are carried out by registered practitioners, and regulates the free provision of such medical practices through the National Health Service. It is interesting to read through section one of the Act (laid out below), noting the stark contrast between the liberal approach taken to abortion services in the UK and the highly restrictive approach taken here in Ireland.

Medical termination of pregnancy.

(1) Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith—

(a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or

(b ) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or

(c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated;

or

(d )that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.

(2) In determining whether the continuance of a pregnancy would involve such risk of injury to health as is mentioned in paragraph (a) or (b) of subsection (1) of this section, account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.

(3) Except as provided by subsection (4) of this section, any treatment for the termination of pregnancy must be carried out in a hospital vested in the Secretary of State for the purposes of his functions under the National Health Service Act 2006 or the National Health Service (Scotland) Act 1978 or in a hospital vested in a Primary Care Trust or a National Health Service trust or an NHS foundation trust or in a place approved for the purposes of this section by the Secretary of State

(3A) The power under subsection (3) of this section to approve a place includes power, in relation to treatment consisting primarily in the use of such medicines as may be specified in the approval and carried out in such manner as may be so specified, to approve a class of places.

(4) Subsection (3) of this section, and so much of subsection (1) as relates to the opinion of two registered medical practitioners, shall not apply to the termination of a pregnancy by a registered medical practitioner in a case where he is of the opinion, formed in good faith, that the termination is immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman.

   The Act legalises abortions which are carried out by registered practitioners, and regulates the free provision of such medical practices through the National Health Service. The protection given to the mother in the UK goes so far beyond that which is afforded to the mother in this jurisdiction. Without disregarding the right to life of the unborn, it pays necessary attention to both the mental and physical welfare of the mother.

CONCLUSION

A recent survey conducted by The Irish Times indicates that over one third of the electorate support the Government’s decision to finally legislate for Case X. The decision represents a positive effort by the Government to raise the standard of protection offered to pregnant women, and to increase clarity in situations where the mother’s life is at risk as a result of the pregnancy, so an abortion may be legally obtained without fear of punishment.

However, Ireland still has a long way to go before it can be said to be fully vindicating the human rights of a pregnant mother. As established by the Committee on the Elimination of Discrimination Against Women (CEDAW), States have a human rights obligation to guarantee that all women, irrespective of their income or racial background, have access to timely, non-discriminatory, and appropriate maternal health services (Alynr da Silva Pimentel v Brazil). Furthermore, States should guarantee access to abortion when a woman’s physical or mental health is in danger, decriminalise abortion when pregnancy results from rape or sexual abuse, review its restrictive interpretation of therapeutic abortion and establish a mechanism to ensure that reproductive rights are understood and observed in all health care facilities (L.C. v Peru). CEDAW is a body of independent experts that monitors the implementation of the Convention on the Elimination of All Forms of Discrimination against Women – an international convention adopted by the United Nations General Assembly in 1979.

So, while legislating for Case X is a good start in fully protecting the rights of the mother, there is a lot of work left to do before we can consider ourselves on par with some of our neighbouring countries. Ireland would do well to follow take notes from CEDAW and the UK, and perhaps one day, we could use the word “abortion” and “Ireland” in the same sentence without flinching.

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Ross O’Donnellan

Ross O'Donnellan, having acquired his LLB from Trinity College Dublin in 2012, is a Dublin-based legal writer and researcher who specialises in international human rights law.

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