Constitution of Ireland

Monday’s Cork Pro-Choice Meeting Part One: The Speakers

Aoife O'Riordan, , , , , , , , , , 3 Comments

poster for Cork for Choice public meeting

A public meeting on “It’s My Choice” was held on Monday night in Cork. Still buzzing from the planning meeting in Dublin last Saturday and visiting Cork for a few days (Hello Cork!), I said I’d head along to it and see what the pro-choice dialogue is like in this part of the country.

There were three speakers at the meeting: Clare Daly TD from the United Left Alliance, Dr Mary Favier from Doctors for Choice, and UCC Lecturer in Law Claire Murray. They were followed by extensive- and heated- discussion. Because the meeting was a few hours long and I don’t want to leave anything out, I’m going to split this into two parts.

If you’re well up on the legal, political and medical situations on abortion in Ireland and just want to see the (rather heated) discussion, have no fear! I’ll have that up tomorrow. There will be kittens.

Claire Murray and the law

“The right to life of the unborn is protected in Irish law, but must be balanced against the equal right to life of the mother”

Claire Murray was the first to speak, about the realities of the legal situation in Ireland relating to abortion: what the right to abortion is in Ireland, the difficulties pregnant people face accessing that right, and Ireland’s responsibilities regarding it. She started with Ireland’s abortion legislation: the 1861 Offences Against the Persons Act. Although there has never in living memory been a prosecution under this outdated Act, it continues, according to the European Court of Human Rights, to have a ‘chilling’ effect on doctors here. The other legal framework affecting abortion here is the Constitution. Constitutionally, the right to life of the unborn is protected in Irish law, but this must be balanced with the equal right to life of the mother. Therefore, there is a right to abortion in Ireland only where there is a “real and substantial” risk to the life of the mother. Confusion and grey areas arise because there is no clear definition of either “unborn” or “real and substantial risk” in Irish law. This means that there is no clear procedure for doctors to follow in cases where a pregnant person may be facing a risk to their life.

“For rights to be meaningful, they must be accessible”

Dr Murray continued her talk referencing a 2010 ruling of the European Court of Human Rights on abortion in Ireland. According to the ECHR, it is within the rights of Ireland to decide when abortion is and is not allowed in our state. Nevertheless, where constitutional rights exist, the state has a positive obligation to make them accessible, clarify precisely what they are and to provide for them. Ireland’s current situation has led to a discord between theoretical and practical rights. For rights to be meaningful, they must be accessible. The rulings of the ECHR are binding. Ireland must put measures in place to prevent further breaches of its obligations. If the state ignores its requirements, it cannot be forced to comply- but it can face sanctions up to suspension or expulsion from the Council of Europe.

In response to the ECHR, the government set up an Expert Group to look into the issue of legislating for the X Case and consitutional provisions on abortion. They produced a list of options for action: guidelines, legislation, or a combination of the two. While they cannot be seen to be in favour of one option or the other, it’s clear that a combination allows for both clarity and flexibility. Guidelines alone would not be legally binding, whereas legislation alone would be inflexible.

In closing, Claire stressed one thing. Even the most comprehensive legislation for X will only provide for the life of the woman. It will not protect a woman whose health is endangered. It will not provide for women whose fetuses are suffering from fatal abnormalities incompatible with life. It will not provide for adults and children pregnant as a result of rape or incest. We need more.

Clare Daly TD and Campaigning

“We’ve been dealing with this for decades: how many more will we have to put up with?”

Next up was Clare Daly TD on political campaigning around abortion. Clare began by pointing out that she has been involved with abortion campaigning for a quarter-century, ever since her student days. But today’s Ireland is dramatically different to the country where she started campaigning for the right to information, and most people here now understand that abortion is an issue that should be solely between a woman and her doctor.

“The Children’s Referendum is the first time, after decades of arguing abortion, that we’ve ever discusses the lives of born children”

Because of our Constitution, we- not doctors, not people needing abortions- have to endlessly discuss when and whether a woman’s life is really at risk. Evidence has tragically shown that, contrary to anti-abortion claims, there are instances where women need abortions to save their lives. But how can you prove that a risk to someone’s life was real and substantial unless she dies? In Ireland, a pregnant person’s life is considered equal to that of their fetus. If we are to truly value and protect women’s lives, this provision has got to go.

“Forcing women with fatal fetal abnormalities to travel alone to terminate in the UK is an indefensible cruelty”

The Irish Constitution says that children, victims of rape or incest, women with serious health issues and those carrying fetuses with no hope of survival have no rights to abortion. Women with wanted babies who know they will definitely die on birth are given the choice of carrying them to term for months on end, or travelling, often alone, overseas. Abortion is not a trivial procedure. Pregnancy is not a trivial state. To dismiss either of them in that way is to insult women and our lives.

Clare went on to point out that forty-four out of forty-seven European countries have abortion legislation, while our government drags its feet for twenty years. With the examples of almost all of our European neighbours, though, legislating for abortion cannot be that complicated. The Government don’t want to legislate. So it’s up to us to keep the pressure on until they have no choice. And legislating for X- which they don’t even want to do- will not be enough. But it’s a start.

“The only reason that more women haven’t died is the proximity of Britain”

Abortion, Clare continued, is a class issue. Women travel to the UK for abortions every day. Affluent women with support can afford this, but a UK abortion costs a minimum of €1000, and costs rise sharply after 14 weeks. This can be prohibitive for poorer women, and more of us live with less money now than we used to. €1000 or €2000 for a UK abortion may no longer be possible for many people, endangering women’s lives, health, and well-being.

Without constitutional change, we can’t progress towards respecting women’s health, dignity and choice. But politicians will not deliver this change. They want to drag this out for three more years until the next election when they can wash their hands of it. Only people power will force them to catch up with the rest of us. In the past month, people have mobilised in this issue like never in our history. Let’s get somewhere, and hope that in another 25 years we’re not still doing this.

Mary Favier: Doctors for Choice

Mary Favier is a GP and media spokesperson for Doctors for Choice. She began by stating that while she is hesitant to speak about an individual’s medical details, in Savita Halappanavar’s case her family have made it clear that they support sharing hers. In jurisdictions other than Ireland, Savita would have been offered a termination as soon as it was clear that she was having a miscarriage. In her situation, there is a known small but substantial risk to life from infections such as that which claimed hers. If, outside Ireland, Savita had refused a termination she would have had to sign a waiver stating that she understood this risk. Dr Favier compared abortions in this case to appendectomies. Appendectomies are almost always performed when a person presents with appendicitis, because in a small number of cases this can lead to death. The risk of death may be small, but it is real, substantial and known. In the early stages of Savita’s miscarriage, the greatest risk was not considered to be to her life, but her health. While calls for legislation on X are necessary, this may not have sufficed to save Dr Halappanavar.

“Irish women are more likely to have had abortions than appendectomies or tonsillectomies. We all know people who have had abortions”

Mary Favier continued on to speak about the abortions that Irish women do have. 4000 Irish residents are known to have abortions overseas every year. This does not include those using medical abortion pills obtained illegally online or women who do not give Irish addresses. Abortion is an incredibly common procedure- more Irish women have had abortions than appendectomies or tonsillectomies. We all know people who have had either of those. We all know people who have had abortions. They are our sisters, friends, daughters, mothers, and colleagues. And yet, their stories are shrouded in silence. The only women who have ever publically spoken about travelling to the UK for abortions have done so for reasons of serious illness or fatal fetal abnormalities. Only ‘special cases’ like these can be open and heard- and only a tiny number of those. The majority of women, who have abortions for other reasons, are silent.

Like Clare Daly, Mary Favier then went to point out that abortion is, in Ireland, a deeply economic issue. Affluent women in Ireland can access information, money and support to have early abortions when they need to. But for poor and working-class women as well as those in unsupportive families and communities- especially teenagers- it can take time to find that money. Because of this, Irish women have later abortions than their UK counterparts. In addition, although most UK abortions are medical abortions, because these take several days to complete most Irish women have to have surgical abortions. Those who can’t afford the time and money? Are forced to either continue with their pregnancies or to illegally buy medical abortion pills online. They do this without medical advice or knowledge of what complications to look out for- but at cost of about €70 instead of over €1000.

“Irish women are no different to women anywhere else. We are not unique, and have the same need for comprehensive reproductive services. Our country has just exported our problems”

Dr Favier continued her talk onto the safety of abortions. Over 99% of women who have abortions do so without major side-effects, and serious side effects and deaths are extremely rare- approximately one a decade in the UK. This contrasts to childbirth- about one woman per year dies giving birth in Ireland, with our far smaller population. Although anti-abortion advocates claim that abortion causes mental illnesses, this is not backed up by research. Dr Favier cited recent studies showing that it is unwanted pregnancies, not what a person does about them, that cause stress, anxiety and mental health problems. Coerced abortions, the necessity of secrecy, negative contexts and stigma make abortion more difficult, and mental health problems more likely.

“Doctors for Choice came about because we were tired of male, conservative, religious people being the only voice of medical professionals”

Finally Mary Favier made an important point about Irish hospitals. The majority of hospitals in the country are Catholic owned and controlled. They would not provide abortions. If abortion legislation changed in the morning, who would provide it? Doctors for Choice advocate provision by GPs. There is no stigma around attending a GP’s office, nothing unusual about attending one. This would keep abortion provision in a safe, familiar context where it could not be prevented by Catholic hospital authorities.

Finally, Dr Favier, like the other two speakers, stressed that legislating for X is not enough. If X legislation goes through, then teenagers, disabled people, poor people and asylum seekers- who cannot legally leave the country- will continue to be disadvantaged. Repealing the 8th Amendment and decriminalising abortion are not and cannot be our final goal. They must be necessary first steps toward providing free, safe and legal abortions for all who need them.

Following Dr Favier’s talk, the floor was open to comments and discussion.

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Monday’s Cork Pro-Choice Meeting Part One: The Speakers
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Abortion, X and the Eighth Amendment: why legislation isn’t enough.

Aoife O'Riordan, , , , , , , , , 11 Comments

TW: abortion, suicide.

It looks like Ireland is finally going to get legislation on abortion. Following the massive outcry over the fate of Savita Halappanavar, with the publication of the expert group report this week, there’ll be a debate in the Dail tonight on what- not if- to do about legislating for abortion to save pregnant people’s lives. With any luck, we’ll finally get that 20-years-overdue legislation on the X case, guidelines for doctors that spell out their responsibilities when faced with pregnant people whose lives are at risk, and Savita’s death, while unnecessary, will not have been utterly in vain.

But it won’t be enough. Why? The right to life. And suicide.

The Right to Life: the Eighth Amendment

The Eighth Amendment to the Constitution of Ireland states:

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.

To use my preferred terminology: the right to life of a person who is pregnant in Ireland is valued on an equal footing to the life of the embryo or fetus they carry. The state has a responsibility to defend the life of the fetus in a way that it is not required to defend a pregnant person.

Just as importantly, all that is defended is life. Health is not defended. I do not have the right to an abortion in Ireland if remaining pregnant will severely and irrevocably damage my health. In fact, doctors are forced to stand by and watch a pregnancy destroy the health of a pregnant person, as long as that person is not about to die.

Life is not the only thing that is important. My life is about more than just a beating heart. But in Ireland, as the constitution stands, if a pregnancy threatens to leave me with dangerous or long-term impairments I have no recourse. I do not get to choose whether to take that risk. According to the constitution, once a person is pregnant the only time their life matters is when it could be ended. Quality of life doesn’t matter. Health doesn’t matter. I become no longer an adult capable of making my own decisions regarding my body and what medical procedures I will put it through or am willing to live with. I am just a host.

Which brings us to suicide.

Suicide and X

Quick history for my non-Irish readers: in 1992, a 14 year old girl, pregnant and suicidal as the result of a rape, was at the centre of what is called the X Case. X, because she was never named. X was prevented from travelling to the UK for abortion by the High Court, but this decision was reversed by the Supreme Court, which ruled that the threat of suicide could be considered a real and substantial risk to X’s life. Wiki has a decent outline of the case if you want to know more. Later that year, and again ten years later in 2002, the governments of the time sought to reverse that ruling through consitutional amandments that would have removed the threat of suicide as a valid threat to the life of the pregnant person. Both of these were rejected. Neither have, until now, been legislated for. Of course.

There are two arguments that I hear against allowing suicidal people to obtain abortions legally in Ireland. The first is that there is no instance where having an abortion would relieve someone’s desire to end their own life. The second is that this would be abused- that people would fake being suicidal in order to access abortions. Both of these, to me, speak to a deep mistrust of women, an unwillingness to take women’s accounts of their own lives at their word, and a kind of paternalism that insists that the state knows best (I say ‘women’ here, by the way, not because everyone who is pregnant is a woman- of course they’re not- but because the awareness that trans* men and nonbinary people can be pregnant isn’t one that has permeated into widespread discourse on abortion). The fear is of abortion on demand, and people are willing to put the lives of suicidal Irish people at risk in order to prevent it. So let’s look into that, shall we?

Abortion on Demand: the facts.

We already have abortion on demand. If you’re pregnant and don’t want to be, then as long as you have the money and don’t have to worry about visas, you can get an abortion. At least twelve women every day leave Ireland for abortion on demand- and that is probably an underestimation because it doesn’t take into account people who don’t give Irish addresses. The demand for abortion already exists, and it is being met. This is not something that Irish people are unaware of. In 1992, we voted to guarantee the right of Irish people to obtain information about overseas abortions and to travel for them. The freedom to travel and freedom of information regarding abortion are right there in the same Constitution that declares that even if her health (as opposed to life) is in grave danger, a pregnant person may not obtain an abortion within our borders.

Huh.

We have abortion on demand. If you’re healthy enough to travel, then as long as you have the money to pay for it, and as long as you are not an asylum seeker or immigrant without the right to travel outside of Ireland, anyone can hop on a plane to the UK for an abortion. Ironically enough, women who want ‘abortion on demand’ are in a far better position to obtain it than those whose health may be at risk. Our right to demand abortion is constitutionally guaranteed- as long as we do it out of sight and keep quiet about it.

Abortion on Demand: the fears

The fear is that, if we allow “abortion on demand” here in Ireland, Irish women will start using abortion as birth control. Statistics from around the world, however, belie this claim. The legality or not of abortion doesn’t change how often it happens. It just changes how likely a person is to survive the procedure. From the link above:

A comprehensive global study of abortion has concluded that abortion rates are similar in countries where it is legal and those where it is not, suggesting that outlawing the procedure does little to deter women seeking it.
Moreover, the researchers found that abortion was safe in countries where it was legal, but dangerous in countries where it was outlawed and performed clandestinely.
[…] Some countries, like South Africa, have undergone substantial transitions in abortion laws […] The procedure was made legal in South Africa in 1996, leading to a 90 percent decrease in mortality among women who had abortions.

The way to prevent abortions is not to ban them. The way to prevent abortions is simply to provide better access to and education on contraceptives:

In Eastern Europe, where contraceptive choices have broadened since the fall of Communism, the study found that abortion rates have decreased by 50 percent, although they are still relatively high compared with those in Western Europe. “In the past we didn’t have this kind of data to draw on,” Ms. Camp said. “Contraception is often the missing element” where abortion rates are high, she said.

So why do we ban “abortion on demand” in Ireland? It doesn’t stop people from having abortions. It does mean that pregnant people who are unable to travel for legal or health reasons face significantly higher risks. I think that we ban it because we want to keep abortion out of sight. We want to shame people who have abortions and keep them quiet. We don’t trust women.

Repealing the Eighth Amendment

Legislating for X is a start. It’s not enough. If we value living in a state that respects the rights of women to their health as well as their lives, we need to repeal the Eighth Amendment. If we want to be a nation that grows up and stops exporting its problems to the UK? We have to repeal. If we actually care about reducing the numbers of later-term abortions and ensuring that everyone in this country, regardless of income or immigration status, has the same right to medical care? We have to repeal the Eighth Amendment.

Legislation on X is a start. It’s necessary, and it’s decades overdue. But Irish people deserve better.

By the way:

If you’re in Dublin, don’t forget the protest tonight! We’ll be gathering outside Leinster House at 6pm, and there’ll be live audio of tonight’s Dail debate. Be there!

Related articles
Abortion, X and the Eighth Amendment: why legislation isn’t enough.