Ajita Banerjie

| @ajitabanerjie | June 11,2018

Ireland’s harsh and regressive abortion law had long denied medical intervention for many at-risk pregnant women, including Savita Halappanavar, the Indian doctor, who died due to her complicated pregnancy. Her death led to protests in 2012 calling for changes in Ireland’s abortion laws, ultimately resulting in the historic referendum on May 25, 2018. The 35-year constitutional ban on abortion was repealed and legislations on safe and legal abortions would soon be drafted.

History of the Eight Amendment & Article 40.3.3

The long history of criminalisation of abortion in Ireland is reflective of the immense religious dominion over Irish society through punitive control around their sexuality. Roman Catholic Church’s diktats on the stereotypical notions about women’s roles as child-bearers and the idealising of a traditional, patriarchal, heterosexual family were reinforced by the Irish state through regressive legislations. Harmful gender stereotypes concerning women’s roles are enshrined in the Irish Constitution, which reinforces a deeply gendered state ideology around the traditional, patriarchal family and the idealised role of women as “mothers” within it.

For example, Article 41 of the Irish Constitution reads:

“The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.” Further, Article 41.2 explicitly refers to women’s “life within the home” and states that “mothers” should not be forced to work, for financial reasons, “to the neglect of their duties in the home.”

Until recently, the draconian legislation governing abortion — Offences Against the Person Act, 1861 — which contained a criminal ban on abortion with lifetime imprisonment for anyone violating the law, was the governing legislation in Ireland. Under sections 58 and 59 of Act procuring a miscarriage was a criminal offence subject to penal servitude for life.

For example, Section 58 of the 1861 Act said:

“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 …”

Likewise, Section 59 stated:

“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 …”

[These provisions were later repealed by the Protection of Life During Pregnancy Act 2013.]

This history of institutionalised oppression and violence against women has played a significant role in enforcing the strong stigma associated with abortion in Ireland, in its refusal to ensure human rights-compliant abortion legislation, the Roman Catholic Church domination, and extremely aggressive “pro-life” campaigners in Ireland who have been campaigning in favour of the Eighth Amendment.

The Eighth Amendment, which was voted into the Irish Constitution by popular referendum in 1983, states that the life of a pregnant woman was equal to that of an unborn foetus, meaning that, in practice, abortion was strictly against the law. Article 40.3.3 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.”

Deeply rooted in religious doctrine, the Eighth Amendment resulted in a concern for foetal life taking precedence over the potential risks to the woman’s life and health. This farcical regime of “equality” is inconsistent with international human rights law, which does not recognise a foetal right to life and is clear that human rights apply after birth. Ireland’s abortion law criminalised abortion even in cases of rape, incest and fatal or severe foetal impairment. This further perpetuated the trauma faced by survivors of sexual violence and forced women to continue with their pregnancies, knowing that their child might be still-born, or born with fatal medical conditions.

In addition to criminalising access to abortion services in Ireland, the Irish state also heavily restricts information about abortion services abroad, under the Regulation of Information Act (1995), criminalising the provision of information by healthcare providers and pregnancy counselors that “advocates or promotes” the option of abortion. Despite these barriers, and other considerable financial and logistical challenges, women from Ireland travel to the UK and other countries in Europe for accessing reproductive care and abortion services. Those women who are unable to afford the travel costs, or prohibited from travelling due to their immigration/refugee status, or critically ill, are forced to carry their pregnancies to term, or to resort to unsafe measures to terminate their pregnancies, which might cause severe or even death.

Landmark cases that helped reform abortion laws in Ireland

X v. Attorney General and Others

In 1992, X v. Attorney General and Others was a landmark case of the Supreme Court of Ireland case that established the right of Irish women to an abortion if a pregnant woman’s life was at risk because of the pregnancy. The case was of a 14-year-old survivor of rape who was denied permission to access abortion services abroad. The state argued that to permit the girl to travel abroad for an abortion would be unconstitutional and illegal under the Eighth Amendment, as it would violate the foetus’ right to life.

The Supreme Court held that the Eighth Amendment, and Ireland’s criminal law provisions on abortion, permitted abortion in cases where there was a “real and substantial risk” to the life – “as distinct from the health” – of the pregnant woman, including through suicide. Following this case, in 1992, two related constitutional amendments were passed. These amendments protected “freedom to travel” from Ireland to another state to obtain abortion services and “freedom to obtain or make available” information relating to abortion services and care, lawfully in Ireland.

A, B, C v Ireland

In the landmark case of A, B, C v Ireland, Ireland’s restrictive abortion and medical complications as a result of it. They argued that the criminalisation of abortion services in Ireland forced them out of their country at a critical time and jeopardised their health and rights enshrined in international law.

The first applicant, A, was living in poverty when she became pregnant unintentionally, had four children in foster care, and had experienced depression during each of her previous pregnancies. She maintained that having another child at that time would have placed her health at risk. As she was not legally entitled to an abortion in Ireland, she had to borrow a huge sum of money to go to England for an abortion. The second applicant, B, was not prepared to become a single parent and became pregnant unintentionally, despite her use of emergency contraception. She decided to travel to England for an abortion, because she could not care for a child by herself at that point in her life and believed that she was not legally entitled to an abortion in Ireland. She experienced financial difficulties in generating the funds for her travel and faced severe distress.

The three applicants, who all became pregnant unintentionally, told the Court that the impossibility of obtaining an abortion in Ireland made the procedure unnecessarily expensive, complicated and traumatic. In particular, they argued that Ireland’s restrictive abortion laws stigmatised and humiliated them and risked damaging their health and, in the third applicant’s case, even her life. They contended that Ireland breached their human rights under Articles 2 (Right to Life), 3 (Prohibition of Torture), 8 (Right to Respect for Family and Private Life) and 14 (Prohibition of Discrimination) of the European Convention on Human Rights. The third applicant, C, was fighting cancer at the time she became pregnant and was unable to find a doctor willing to provide sufficient information about the pregnancy’s impact on her life and health or the impact of the treatment on the fetus. Eventually, she decided to travel to England for an abortion.

In December 2010, the Court delivered its judgment. The judges ruled unanimously that Ireland’s failure to implement the existing constitutional right to a lawful abortion in Ireland when a woman’s life is at risk violated Article 8 of the European Convention on Human Rights.

D v Ireland

D v Ireland was a case of the European Court of Human Rights concerning the circumstances surrounding abortion for fatal foetal abnormalities. Her foetus had Edwards syndrome, a condition that usually ends in miscarriage or death shortly after birth because of heart abnormalities, kidney malformations, and other internal organ disorders. She complained about lack of access to reproductive care and the need to travel abroad to have an abortion, which was traumatic for her. She claimed that her rights under Article 14 were violated and that she was discriminated against as a pregnant woman with a lethal foetal abnormality. Another person (or man) with a serious medical problem would never have encountered such difficulties in obtaining medical care and advice.

Millet v Ireland

Mellet v Ireland was another landmark case that pointed out that Ireland’s abortion laws violated human rights, and the International Covenant on Civil and Political Rights by banning abortion in cases of fatal foetal abnormality and and called for the Government to offer her compensation, counselling and also change its laws to allow for abortion in cases of fatal foetal abnormality.

Amanda Millet in the 21st week of her pregnancy found out that the foetus was suffering from a fatal condition but was denied abortion and was forced to travel to England for the termination. She had to return to Ireland only 12 hours after the termination because she couldn’t afford to stay there for any longer. The procedure was expensive and there was no financial assistance from the State or private health insurers for women who terminate pregnancies abroad. The hospital did not provide any options regarding the foetus’ remains, so she had to leave them behind. The ashes of the terminated foetus were unexpectedly delivered to her three weeks later by courier, subjecting her to severe trauma and depression.

The UN Human Rights committee found that Amanda was subjected to discrimination and cruel, inhuman or degrading treatment as a result of Ireland’s legal prohibition of abortion. The committee said that, in addition to the shame and stigma associated with the criminalisation of abortion of a fatally ill foetus, the obstacles she faced in getting information about the appropriate medical options aggravated her suffering.

Death of Savita Halappanavar

The reality of Ireland’s harsh and restrictive laws and the chilling effect it cast on both the women and the doctors became evident with the preventable death of Savita Halappanavar. Savita was an Indian-born doctor residing in Ireland, who died after being denied an abortion. Doctors had informed her that the fetus would not survive, but since it still had a heartbeat, they refused to terminate her pregnancy, citing Ireland’s law on abortion and maintaining that her life was not at risk. By the time the fetus no longer had a heartbeat and was removed, Savita had septicemia, an infection from which she died.

This case led to widespread protests across Ireland and the first “March for Choice” took place in Dublin where thousands came together under the “Coalition to Repeal the Eighth Amendment” umbrella. The legislative process to amend the harsh abortion laws began in January 2013, just months after Savita’s death and the Protection of Life During Pregnancy Bill 2013 was enacted as law on July 30, 2013.

The Protection of Life During Pregnancy Act (PLDPA) was introduced to allow legal abortion for women in Ireland if there was a threat to life, including through suicide. Rather than creating an enabling framework for access to legal abortion, the PLDPA set forth a number of intrusive procedures and created further barriers to accessing abortion under the law. It specifies three circumstances where the risk to life may arise: a “real and substantial risk” of loss of life from physical illness; an “immediate risk” of loss of life from physical illness in an emergency; and a “real and substantial risk” of loss of life from suicide. The PLDPA did not have any exceptions to criminalisation – whether for cases of rape, incest, severe and fatal foetal anomaly, or a threat to the woman’s health. Since the element of risk was ambiguous, anyone assisting her in undergoing an abortion, including a health care provider, could be liable to 14 years’ imprisonment in case of violation of law.

2018 referendum and the Yes Campaign

On May 25, Ireland voted in a referendum to repeal one of the world’s more restrictive abortions bans, sweeping aside generations of conservatism, patriarchy and domination of the Roman Catholic Church. The landslide victory reflected the country’s shift towards democracy at a time when right-wing populism is on the rise in Europe, and elsewhere in the world and the Trump administration is cracking down on abortion rights in the United States.

Ireland’s democratic and liberal viewpoint has been preserved through constant struggles of various human rights groups. In the past three years alone, Ireland has chosen a gay man as prime minister and has voted in another referendum to allow same-sex marriage. Leo Varadkar, the Prime Minister, called the victory a “silent revolution” and a “great exercise in democracy” where the people have created history and demanded a progressive constitution.

The “Yes” campaigners focused on hard cases faced by women, such as rape or foetal abnormalities. The referendum result showed that many Irish voters agreed that women in those circumstances should be allowed a choice to terminate their pregnancy, even if they didn’t agree with abortion ideologically. That shift in attitude was driven in part by prominent cases, especially the death of Savita Halappanavar. Irrespective of the marital status of women, access to safe abortion services and quality post-abortion care, including counseling, must to be guaranteed to women. Ireland’s health minister Simon Harris is supposed to push forward with new abortion laws to allow terminations within the first 12 weeks of pregnancy, and up to 24 weeks in exceptional circumstances, after the monumental victory in the referendum  that overturned a 35-year ban on abortion. The Irish electorate voted by 1,429,981 votes to 723,632 in favour of abolishing the Eighth Amendment, the result being a two-thirds majority: 66.4% yes to 33.6% no.

Birth of a new dawn

The Referendum marks the end of an era in which thousands of women had been forced either to travel abroad or to buy pills illegally online to terminate their pregnancies, risking a 14-year jail sentence and bearing the burden of secrecy and stigma. Now women can access safe and lawful reproductive care and access to abortion services in their home country without facing the fear and stigma of travelling to another country to do something that is illegal in your own country.

The Referendum hopefully brings in a strong recognition of women’s right to their reproductive and sexual rights, including the right to abortion and bodily autonomy. As the Irish Prime Minister Leo Varadkar said, after the landslide victory: “No more lonely journeys across the Irish Sea. No more stigma. The veil of secrecy is lifted. No more isolation. The burden of shame is gone.”

Abortion in Northern Ireland, however, continues to be regulated by the colonial law of Offences Against the Person Act, 1861, that denies women access to legal abortion in their country, forcing them across the border. Such draconian laws are in violation of women’s human rights and treat them as second-class citizens. Hopefully, Ireland’s victory will bring a revolution to Northern Ireland and allow women equal rights to healthcare and dignity as men in the same country.

 

 

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