Abortion Law in Ireland: Time for Change?

Abortion Law in Ireland: Time for Change?

Fiona de Londras and Máiréad Enright

Throughout the life of the Irish state it has been a criminal offence to access or provide an abortion. This criminal prohibition initially came from the Offences against the Person Act 1861; a piece of Westminster legislation that has left its mark on abortion law all across the former Empire. However, in 1983 that prohibition was bolstered by the insertion of a new clause in the Irish Constitution: Article 40.3.3, known as the 8th Amendment to the Constitution. This provision pledges the state to respect and “as far as practicable” to “defend and vindicate” the “right to life of the unborn, with due regard to the equal right to life of the mother”.

This new constitutional provision meant that, even if it wanted to, the Irish Parliament (the Oireachtas) could not legalise abortion in Ireland. While it allowed for pregnancies to be terminated where the life of a pregnant person was at “real and substantial risk” (as the Supreme Court put it), in any other circumstances abortion would be prohibited. Indeed, under the Protection of Life During Pregnancy Act 2013 it is still criminalised, including when abortion is self-administered.

The 8th Amendment was designed to make any future change to abortion laws in Ireland as difficult as possible. Any legislation that attempted to make abortion available would be struck down as unconstitutional. Any political will to change the law would have to be endorsed by the people voting to remove or amend the 8th Amendment because the Irish Constitution can only be amended by referendum. And any popular will for change would have to gain political momentum because a referendum can only be called by an Act of the Oireachtas.

The 8th Amendment, in other words, created a tight bind around abortion law reform.

Indeed, that was the intention behind it. It was a reaction to limited progress in sexual and reproductive freedom in Ireland (contraception for ‘bona fide family planning purposes’ having been legalised in the late 1970s), a protection against social liberalisation, and a licence for intrusion into women’s reproductive lives. The latter was important: soon after the 8th Amendment was introduced cases were brought to the Irish courts in the successful attempt to make sure that the constitutional recognition of “the unborn” would restrict reproductive freedom to the extent possible. As a result of these cases, any activity that might endanger ‘unborn life’—including distributing information about abortion and how to access abortion care outside of Ireland and travelling to access abortion care—could be restrained. From the moment that pregnancy began, women in Ireland effectively only had one exercisable constitutional right related to their person: the right not to die in pregnancy. All other rights—privacy, information, freedom of movement, bodily integrity, the right to be free from torture—were subordinated to the right of the “unborn” to be born alive.

Although referenda in 1992 inserted a protection against being prevented from travelling for abortion and a right to information about abortion into the Constitution, the Irish people have never yet been asked whether they wish to liberalise Irish abortion law. The 8th Amendment remains in place, although the reality is that it does not prevent abortion.

Every year, thousands of pregnant people travel abroad, most often to England, and thousands more order medical abortion pills online and self-administer abortion, illegally, in their homes. It is very clear that if the purpose of the 8th Amendment was to prevent abortion it has failed. If its purpose was to stymie legislative development, make abortion care extremely difficult to access, and create an atmosphere of stigma, censure, and criminality, however, it succeeded. Indeed, appearing in a recent parliamentary committee session Professor Emeritus William Binchy, a key proponent of the 8th Amendment, expressed the view that the 8th Amendment had “been a very considerable success and there are many children alive in Ireland who would not be alive if we had had wide-ranging legalised abortion for the past 34 years”. In spite of this, Professor Binchy and all others who support the retention of the 8th Amendment accept that the 8th Amendment does not prevent abortion; it just prevents some abortions, largely those sought or needed by women with limited means or without documents to travel, by adolescent girls, by persons unable to make travel arrangements, by marginalised women who must remain pregnant against their will.

However, there are now signs of change. Following a Citizens’ Assembly and a parliamentary committee both recommending repeal of the 8th Amendment, the Irish government has committed to a referendum, which is expected at the end of May. Although the referendum bill has not yet completed its passage through Parliament, the ‘phoney campaign’ has already started, and Irish airwaves and newspapers are saturated in debate not about repeal per se (for which polls suggest there is significant support) but about what might follow it.

Following repeal of the 8th Amendment the Constitution will say that “Provision may be made for the regulation of termination of pregnancies” (36th Amendment to the Constitution Bill 2018). The Government has already said that its proposed approach will be to introduce a ‘protected period’ during which abortion can be accessed without ‘specific indication’ (i.e. a period of abortion on request). After that 12 week protected period, abortion would be available where the life or heath of the pregnant person is at risk, or in cases where a fatal foetal anomaly has been diagnosed. In those cases the certification of two doctors would be required.

Anti-repeal campaigners have already claimed that this would usher in one of the most liberal abortion law regimes in the world. However, this is not supported by the evidence.

First of all, a protected period for access to abortion in early pregnancy is not unusual. Although no such protected period exists in the UK (and the Abortion Act 1967 does not apply to Northern Ireland at all), it does exist in 22 of the 28 EU member states. Ireland would not be an outlier if we introduced abortion on request in early pregnancy: instead, this would bring us in line with European norms. Furthermore, like exactly half of these 22 EU countries, the Government is proposing a mandatory waiting period, so that women would be required to ‘reflect’ for some period of time (most likely 3 days) after requesting abortion care before she could access such care, most likely by filling a prescription for medical abortion pills. Such a waiting period is not medically indicated: the WHO has noted that in fact it demeans women in their decision-making, and it creates an unjustifiable barrier to accessing abortion care.

Similarly the claim that the proposed law would introduce ‘abortion until birth’ is without merit. As is the case in all other countries, late term abortions would be extremely rare and almost certainly limited to situations of fatal foetal anomaly, many of which cannot be detected until a 20-week anomaly scan. In situations where there is a risk to the life or health of the pregnant person, medics would assess the viability of the foetus and more often than not live, although premature, birth would be the outcome. Indeed, the Minister for Health has confirmed that this will be promoted as policy in any new abortion law regime.

Contrary to the message of anti-repeal campaigners, all indications are that the post-repeal law will in fact be relatively restrictive. As we showed in Repealing the 8th: Reforming Abortion Law in Ireland, a post-repeal abortion law that empowers doctors rather than pregnant people as decision-makers, that requires a mandatory waiting period in the protected period of access, that is designed to try to achieve live birth, that does not oblige doctors to take into account the pregnant person’s assessment of her health and well-being, that makes no allowance for socio-economic factors after 12 weeks, and that allows for practitioners to opt out of providing abortion care—including in the first 12 weeks—may well operate as a repressive, hyper-medicalised law.

It will also leave in place a situation where there is unmet need for abortion care in Ireland. Abortion travel will continue: women who have not either detected pregnancy or made a decision within the protected period, or who refuse to be subjected to a mandatory waiting period, will likely fall outside of the ‘grounds’ for abortion after 12 weeks. They will, however, still need abortion care so that then, as now, those who can will travel to access it. We can also predict that the importation of abortion pills will continue: women who are now able freely to make decisions about abortion care by ordering pills online will be reluctant to subject themselves to medical judgement and the imperative to justify their decision. In rural areas it is fair to assume that at least some women may choose to travel elsewhere in the country, or to access pills online, rather than engage with GPs and pharmacists who are as likely as not to be family friends, part of one’s congregation, or members of the same sports and social groups as the pregnant person who seeks an abortion.

However, if the 8th Amendment is repealed, there will be opportunities in the future for popular will, medical science, and societal transformation to influence future abortion law. The Constitution will no longer make abortion law reform impossible, although of course it will continue to frame it, placing limits on the Oireachtas’ power as it does in all situations. People’s (dis)pleasure with proposed abortion legislation will influence their political representatives, and abortion will be returned to the realm of politics and removed from the exceptional realm of constitutional law. As we argue in ‘Repealing the 8th’, this is of fundamental importance if Ireland is finally to take seriously the need for agency, autonomy, and bodily integrity in reproductive life.

 

Fiona de Londras is Professor of Global Legal Studies at Birmingham Law School. Máiréad Enright is senior lecturer at Birmingham Law School. Their book, Repealing the 8th: Reforming Irish Abortion Law, was published by Policy press in February 2018 and is available open access here.

No comments yet.

No one have left a comment for this post yet!

Leave a comment