Fiona de Londras
In spite of predictions of a nail-bitingly close outcome in the referendum to repeal the 8th Amendment of the Irish Constitution, the result was actually a landslide. Over 66% of those who voted—around 1.4 million people—chose to endorse a constitutional change that would remove the near-total ban on abortion contained in the 8th Amendment, and replace it with the 36th Amendment to the constitution which empowers the Oireachtas (the parliament) to make law regulating the availability of abortion.
During the campaign there was some concern that the Government had erred in publishing the outline of the legislation that it proposed to introduce should the referendum be successful. This was not least because the ‘no’ campaign focused much of its energies on criticising the proposed text, often misrepresenting its content to suggest that the proposed new law was unusually ‘liberal’ by reference to abortion law in other counties. The proposal to make abortion available ‘without restriction as to reason’ up to 12 weeks receiving particular attention; the anti-repeal campaign declared it “too extreme”, suggesting by implication that it would allow for the ‘targeting’ of ‘disabled babies’, among other arguments.
On the 25th of May, when casting their votes at the ballot boxes, the Irish people disagreed. The arguments made in support of this 12-week ‘protected period’ had largely focused on the victims of rape and incest. It was (correctly) argued that a ‘rape ground’ would be unworkable; that it would require doctors to act as quasi-police officers, and lead to complications in future criminal proceedings. Such a ground would also, it was argued, potentially re-traumatise women by requiring them to disclose their rape and then have the credibility of that disclosure assessed in order to access reproductive healthcare. What few people argued, however, was that the 12-week protected period was the appropriate way to maxmise respect for women’s reproductive agency; for our ability and right to decide whether or not to remain pregnant.
Interestingly, the RTE exit poll that followed the referendum suggested that while these arguments may have had some impact on voters, the vast majority of ‘yes’ voters had not changed their mind on whether the 8th should be repealed for five years. Furthermore, almost two thirds of them (62%) cited ‘a woman’s right to choose’ as an influencing factor for their vote (compared to 40% who cited rape and incest as an influencing factor). ‘Middle Ireland’, it turned out, is pro choice.
This is significant for what will now happen in the abortion law reform process.
The size and nature of the ‘yes’ vote were such that it will be near impossible for politicians to obstruct the passage of the legislation that is required to make abortion available in practice. Even politicians who were opposed to repeal have largely conceded that there is now a democratic imperative to support the legislation and indicated an intention to do so. That means that elements of the proposed law that it might have been predicted would be especially vulnerable to challenge in the event of a very tight result—especially the 12-week provision—can fairly be said to have received the imprimatur of the electorate.
Indeed, there may well be scope to add some provisions intended to enhance the decisional security of women in crisis pregnancy to the legislation now as well. During the referendum campaign and since there has been a campaign of displaying enormous images of dismembered fetuses in public locations, including outside of maternity hospitals where women with complex diagnoses in pregnancy will be forced to pass them by. These have been met with counter-protest—including obscuring the images with sheets, rainbow flags, and giant ‘angel wings’—by activist groups, especially Radical Queers Resist. However, such counter-protest is not sustainable in the long term, and requests from the maternity hospitals to desist with these intimidating displays have gone unheeded.
The Minister for Health has been asked by academics and groups such as the Irish Family Planning Association and the Well Woman Centre to make provision for ‘buffer zones’ around locations where abortion care is to be provided in the legislation. He has indicted his willingness to do this, provided a constitutionally permissible mechanism can be found. It is hard to imagine such openness to provisions of this kind if the passage of the core of the Bill—the legalization of abortion itself—were going to be a tightly run battle in the Oireachtas.
The prediction is that the legislation will be passed before the end of 2018 and that abortion services will be available from January 2019. This timeline is ambitious bearing in mind the practical issues around provision of abortion care that still need to be resolved.
It is envisaged that, unlike in the UK, abortion will primarily be provided through a GP-led service; that women would not need to go to ‘abortion clinics’ but could instead access abortion in the first twelve weeks with the support of their doctor. However, there is some resistance from a seemingly-small cohort of GPs which appears to resent the decision to proceed with s GP-led service without making clear what resources will be provided to underpin that, although a growing group of GPs has emerged that declares itself ready to provide abortion care across the country.
Some GPs are also resisting the proposed approach to conscientious objection, through which objecting practitioners would not be required to provide abortion care but would be obliged to refer women on to a practitioner who did not hold such an objection. It is this—the obligation to refer—that appears to be becoming a key battleground in the post-referendum terrain, but the Minister for Health has been unmoved by the objection that referral in such circumstances unacceptably forces doctors to be complicit in the provision of abortion.
The Minister, the Taoiseach, and most other politicians have made clear their view that it would not be acceptable to leave a woman in crisis pregnancy without support through refusing to refer. Given this, it seems unlikely that attempts to amend the legislation in order to remove the obligation to refer will be successful, but some resistance and disobedience under the law from some GPs might reasonably be expected. In response, it is likely that the networks of pro-choice activists that have developed over three decades of repressive abortion law in Ireland, and which grew so significantly in the referendum campaign, will respond by sharing knowledge about non-compliant doctors, creating subversive support networks to protect women from exposure to such behaviours.
Indeed, the referendum, repeal, and the future legislative changes do not signal the end of Ireland’s debates and disagreement about abortion. Rather, they are likely simply to mark the start of a new phase. The ‘pro life’ groups have made it very clear that they are not going away, and already Senator Ronan Mullen—a well-established anti-abortion voice in the Irish parliament—has registered a new, ‘pro life’ party: the Human Dignity Alliance. Similarly, the pro-choice movements are aware that vigilance, support, political pressure, and continued activism will be required to ensure that the law works to provide reproductive healthcare for women in Ireland who, for whatever reason, cannot continue with their pregnancies.
What the referendum does mean, however, is that these debates and contestations can now move into the political realm proper. Under the 8th Amendment the constitutional ban on abortion unless a woman would die without it meant that there was very little one could achieve with political or even judicial pro-choice maneouvers. Illegality, disobedience, activism and resistance could make abortion available to some women, but only in the shadows and solitude of criminality and abortion travel. They could not force new legislative or political approaches to abortion because the Constitution foreclosed that. This is exactly what the 8th Amendment was intended to do: to make political and legal change near impossible, even if socially and medically needed. Following its repeal, all that has changed. Abortion is now part of everyday Irish politics, just as it has always been part of everyday Irish reproductive life.
Fiona de Londras is Professor of Global Legal Studies at Birmingham Law School. She is the author, with Máiréad Enright, of Repealing the 8th: Reforming Irish Abortion Law, was published by Policy press in February 2018 and is available open access here.
Image: Dublin Savita Halappanavar Rally, William Murphy CC BY-SA 2.0