IN THE NAME OF
SAVITA HAL APPANAVAR
“The Calling Magazine takes a look at the current laws, constitutional rights, past legal challenges and the situation in other jurisdictions”
The Facts IT IS HARD to strip away the emotion which pervades the debate about abortion, making it one of the most divisive issues in Ireland of the past twenty years. The legalities surrounding abortion services were propelled into the spotlight in 1992 when the X case was heard in both the High Court and the Supreme Court. Usually not a country of protesters, Ireland saw thousands of people take to the streets.
The Supreme Court ruling eventually led to multiple constitutional referendums, numerous expert groups and further cases in the European Court of Human Rights. The Calling has been following the debate from all angles, featuring column’s from TD Clare Daly about her Medical Treatment (Termination of Pregnancy in Case of Risk to Life of Pregnant Woman), Bill and Ruth Cullen of the Pro Life Campaign. However, the peculiarities of certain cases and various legal wranglings can confuse the matter and lead to much misinformation being spread. Here we aim to provide details of the legal aspects of abortion in Ireland in a dispassionate and factual manner.
The Legal Aspects First off, abortion is illegal in Ireland. The only exception is when there is a real and substantial risk to the life of the mother. This includes a risk arising from a threat of suicide, which is allowed for under current legal precedent because of the Supreme Court ruling in the X case. In the Irish Medical Council’s guidance for medical practitioners, a doctor is told to undertake a full assessment of any risk of suicide in light of clinical research in the area. If a substantial risk to the life of the mother is found, an abortion can legally take place in Ireland. If a complication arises where therapeutic intervention is required during pregnancy, doctors are legally allowed to proceed even if there is little hope of the baby surviving. The medical profession are duty bound to protect the life of the mother while making every effort to preserve the life of the baby. It is illegal in Ireland to have an abortion in the case of lethal fetal abnormality.
This issue was covered extensively across all news outlets in the past two weeks as a group of women went to the Dáil to call for limited access to abortion services in Ireland for pregnant women who are told their babies are “incompatible with life outside the womb”.
Abortion Information & Travelling Abroad It is completely legal to provide information to people in Ireland about abortion services abroad. However, this is subject to strict conditions as set out in the 1995 Abortion Information Act. The Act does not permit just anyone to give information on abortion and lays down rules for those people or agencies who do provide it. Names and addresses of abortion clinics abroad may be made available by doctors, specific agencies or individual counsellors. The rules apply to all providers of information but a distinction is made between information that is provided for the general public and information that is made available directly to a pregnant woman by a doctor or an advisory service. It is also legal for women to travel abroad to avail of abortion services. A doctor in Ireland then has a duty to provide care, support and follow-up services for those women on their return. However, it is illegal for a doctor or a one-to-one counsellor to encourage or advocate an abortion in individual cases. It is also unlawful for a doctor to make an appointment with a clinic on behalf of a pregnant woman. Figures released by the Department of Health in the UK showed that 4,402 women gave Irish addresses when attending clinics to have terminations during 2010.
Law The laws which govern abortion in the Republic of Ireland are section 58 and 59 of the Offences against the Person Act 1861. As amended and in force these provide that: 58. 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 [an offence], and being convicted thereof shall be liable, ..., to [imprisonment] for Life .... 59. 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 [an offence], and being convicted thereof shall be liable, ..., to [imprisonment for a term not exceeding five years].
In 1983 the Irish electorate approved Eighth Amendment to the Constitution of Ireland by referendum. It inserted the following paragraph into the constitution: 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. The case, known as the X case generated great controversy on both sides of the abortion debate and has resulted in a further four referendums being put to the people only two of which passed, these being the thirteenth and fourteenth amendments. These added two paragraphs to the text inserted by the eighth amendment: This subsection shall not limit freedom to travel between the State and another state. This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.
The Offences Against the Person Act of 1861 criminalised any woman – or anyone helping that woman – who “procured a miscarriage”. These laws remain on Ireland’s statute books. On 7 October 1983, the Eighth Amendment of the Constitution was passed by the Irish electorate. It provided for the State’s acknowledgement of the right to life of the unborn with equal regard to the right to life of the mother. It effectively brought in a constitutional ban on abortion ever being legalised in Ireland. It ensured that any changes to the legal status of abortions (for any reason) would have to be put to the people and could not simply be completed at Government level. Current arrangements around abortion services in Ireland stem not only from the Supreme Court ruling in the X Case but also from subsequent referendums. Ireland has never voted on whether abortion (on demand) should be introduced in the State. The electorate has voted on the right to travel, the right to information and whether or not to repeal the Supreme Court judgement in order to disqualify the risk of suicide as a grounds for an abortion. On 25 November 1992, the Government put forward three possible amendments to the Constitution in the first abortion referendum after the X Case. The people of Ireland voted to allow for the freedom to travel outside the State for an abortion. The amendment covering the right to obtain or make available information on abortion services abroad was also passed. The third question on the ballot paper, the Twelfth Amendment, proposed to legislate for legal abortions. However, it said that the risk of suicide was not sufficient grounds to allow for such a legal abortion. It shall be unlawful to terminate the life of an unborn unless such termination is necessary to save the life, as distinct from the health, of the mother where there is an illness or disorder of the mother giving rise to a real and substantial risk to her life, not being a risk of self-destruction. This proposal, which would have seen the ruling in the X Case rolled back, was rejected by the electorate. As a result, the status quo remained – that is terminations are allowed where there is a real and substantial risk to the life of the mother, including the risk of suicide. A similar amendment was put to the public again in 2002. Once more, it was rejected (this time marginally and the turnout at the polls was much smaller than in previous abortion referendums). If passed, the change to the constitution would also have introduced new penalties of up to 12 years in prison for anyone who performed an unlawful abortion.
Legal Cases Taken The landmark X case came in 1992 after a 14-year-old girl fell pregnant after being raped by a man known well to her family. The victim and her parents decided to travel to the UK to undergo an abortion. The family informed the Gardaí of their plans and asked whether the fetus could be tested after it was aborted to provide proof of the paternity of the accused in the rape case. After being asked his advice on the matter, Attorney General Harry Whelehan obtained an interim injunction to stop the termination in order to protect the Constitution. The High Court upheld the injunction but an appeal to the Supreme Court was successful and Miss X was granted leave to travel for a termination. The presiding judge deemed that the risk of life to the girl was not less than the danger to the right of life of the unborn. Just five years later, a similar case arose when a 13-year-old girl, who became known as Miss C, became pregnant after being raped. She was taken into the care of the Eastern Health Board, and requested an abortion. The EHB was granted an order to allow for an abortion abroad but this was challenged by Miss C’s parents. The High Court found that she was entitled to a lawful abortion here on the grounds that her life was at risk because she was suicidal and that risk would increase as her pregnancy advanced. Despite being legally granted an abortion in Ireland, the health board brought Miss C to the UK for the termination. The case of D versus Ireland was heard in the European Court of Human Rights in September 2005 with Miss D claiming her human rights were violated because of the lack of abortion services here. Her baby had been diagnosed with fetal abnormalities so severe it could not live outside the womb. The case was dismissed after the court ruled that the aggrieved individual had not brought an action before the Irish courts, thus failing to exhaust all domestic avenues open to her. The most recent legal challenge to Ireland’s abortion laws came in the A, B and C versus Ireland case at the European Court of Human Rights in 2010. Taking the case, three women said their rights had been violated because they were forced to travel abroad for terminations. The court found that Ireland had breached C’s constitutional right to a lawful abortion in Ireland. C had a rare form of cancer and when she discovered she was pregnant she feared for her life as she believed the pregnancy increased the risk of her cancer returning. She argued that there was no effective procedure available in Ireland for assessing that risk – and therefore she nor her doctors could ascertain if she was entitled to a lawful abortion in Ireland.
Grey Areas & the Expert Group Although the current arrangements allow for legal abortions in very particular cases where the mother’s life is in danger (including from the risk of suicide), a large grey area emerges because of a lack of legislation in the area. Giving its judgement in the A, B & C versus Ireland case, the European Court of Human Rights found that the reality in Ireland is different to the legal theory. It said it had concerns about the “effectiveness of the consultation procedure (between a woman and her doctor) as a means of establishing qualification for a lawful abortion in Ireland”. It said that while the constitutional provision (as interpreted by the Supreme Court in the X Case) allows for certain lawful abortions, the fact that they have never been legislated for means that “absolute prohibition” and “associated serious criminal offences” remain in force and contribute to the “lack of certainty” for a woman and her doctors. Therefore, women who legally qualify for an abortion in Ireland often end up travelling abroad to have the procedure. Against this background of substantial 4
Never Again March to Legislate Abortion 2012. 20000 people marched to reclaim that cases like Savitaâ€™s never happen again.
uncertainty, the Court considers it evident that the criminal provisions of the 1861 Act would constitute a significant chilling factor for both women and doctors in the medical consultation process, regardless of whether or not prosecutions have in fact been pursued under that Act. Both the third applicant and any doctor ran a risk of a serious criminal conviction and imprisonment in the event that a decision taken in medical consultation, that the woman was entitled to an abortion in Ireland given the risk to her life, was later found not to accord with Article 40.3.3 of the Constitution. Doctors also risked professional disciplinary proceedings and serious sanctions. An expert group was set up in January of this year to examine how best to deal with the court’s ruling. It is due to report its recommendations before the end of June, taking into account the constitutional, legal, medical and ethical considerations in creating public policy.
Medical Aspects There are a number of different abortion procedures and the methods used generally depends on how long the woman has been pregnant. Early medical abortions can be carried out in the first nine weeks of pregnancy. It involves taking two drugs – one which blocks the pregnancy hormone that is necessary for a successful pregnancy and another which breaks down the lining of the uterus. Essentially, they induce an early miscarriage. A medical abortion works in a similar fashion as the same drugs (mifepristone and prostaglandin) are taken – just in a higher dosage. It is described by clinics as similar to having a late miscarriage as it is used for pregnancies in the nine to 20 week stage. Suction abortions, or manual vacuum aspirations (MVA), are classified as surgical terminations. During the procedure, a small tube is inserted into the uterus to remove the pregnancy by suction. A local anaesthetic is used and MVAs can be undergone up to 10 weeks into pregnancy. After 10 weeks and up to 15 weeks, women may undergo a vacuum aspiration. Instead of a manual suction technique, an electric pump is used. A surgical dilatation and evacuation (D&E) abortion is the option usually used after 15 weeks. It is carried out under general anaesthetic as the pregnancy is removed through the cervix by a special forceps. Complications that can – but rarely – arise from abortions include infection, excessive bleeding or damage to the cervix or uterus. According to statistics from the UK, up to 14 out of every 1,000 medical abortions fail to end the pregnancy and further treatment is required. When Savita Halappanavar entered Galway University Hospital she was surrounded by modern equipment, dedicated staff and 20 years of political cowardice. Her miscarrying baby was doomed. But while its heart was beating the law says it must be given equal status as Savita. We cannot yet know what exactly happened through those days, and we cannot know, let alone judge, the actions of any particular doctor or nurse – nor their collective actions. Outsiders have second-guessed the medics, on limited information. What we know was that the medics were subject to the law, and the courts have demanded the law be clarified by the politicians – and the politicians have refused to do so, for two decades. Medics must work it out for themselves, in the midst of a medical crisis. The woman has no say. The refusal of the politicians to clarify the law is explicit. “I think that this issue is not of priority for government now,” Enda Kenny told Time magazine, for his triumphant cover story in September. That meant he would never, through this Government’s time in office, deal with the issue. Fianna Fail felt the same. Politicians find abortion too scary. For 20 years they let it hang, perhaps believing the odds were against a high-profile death. They were gambling with the lives of others. The original proposed wording to the Constitutional amendment was: “The State recognises the absolute right to life of every unborn child from conception” – it was feminists and politicians who insisted that the life of the mother must count. But the political establishment was satisfied with that precarious balance. And they got away with it for decades. The amendment failed to save the Catholic Church. Last year 22 men were studying for the priesthood. This year, the figure is 12. The decline of the church was brought about not by militant secularism but by the conduct of its own. But the era of aggressive traditionalism, the effort to make Ireland a Catholic beacon that would turn the tide in Europe, left a legacy of mangled law. A law that hangs over medics who make life and death decisions. A woman is dead. The law is discredited, any woman who may become pregnant is left to worry about what might or might not happen. If that isn’t enough, for those concerned only with the bottom line, the failure to legislate has destroyed years of marketing Ireland as a modern state.
Other Jurisdiction Debates about abortion are not confined to Ireland. A US politician’s opinion on family planning matters is of major significance to voters – just this year the Republican presidential nomination race was partly-dominated by talks of scrapping funding to Plan Parenthood because it provides abortion services. In Europe abortion is legal in some guise in most countries. Malta is the current exception where it is completely banned under all circumstances. Most European states allow for abortions only under certain conditions, such as when there is a risk to the mother’s health – be it mental or physical. There are also differing gestational limits in countries which offer on demand abortions. In Belgium, Denmark and France there is a 12-week limit, while others including Austria and the Netherlands allow terminations up to 24-weeks. Many countries loosen their restrictions in the case of rape, incest, teenage pregnancies (Finland offers abortions up to 20 weeks if the pregnant girl is younger than 17), where there is a risk to the physical or mental health of the patient or when there is fetal abnormalities. Read: The International Planned Parenthood Federation’s 2007 report into abortion legislation in Europe
Laws relating to abortion are not as restrictive in Northern Ireland as they are south of the border but they are not as loose as other parts of the UK. The 1967 Abortion Act legalising terminations in England, Scotland and Wales was not extended to the six counties because Westminster left it up to Northern Ireland’s own parliament to decide. It never took up the issue and even when Direct Rule returned, the Act was never extended to include the province. There have been some moves to close the gap in legislation but these have been shelved at various times in the past decades. Abortion is only legal in very exceptional circumstances but these include when there is a substantial risk to the long-term physical or mental health of the woman. Although women who discover their babies are not compatible with life outside the womb may legally have an abortion in Northern Ireland, many travel to the mainland for terminations. Women in Northern Ireland are not entitled to an abortion through the national health insurance scheme (the NHS).
Although women in England, Scotland and Wales can have an abortion up to 24 weeks of pregnancy about 90 per cent are carried out before 13 weeks. Terminations are provided for free through the NHS for citizens but private run clinics charge around £500. Those aged under 16 do not require parental consent to undergo a termination. The partner also has no legal rights in the decision and does not have to be told about the procedure. In fact, where partners have tried to prevent an abortion by legal action they have failed. Anecdotal evidence shows that Irish women have started to travel to the Netherlands for abortion services, as well as the UK. Abortion has been legal there since the 1970s and terminations are allowed up to 24 weeks. However, in practice most clinics set a limit of 22 weeks. Legislation sets certain requirements about how a woman arrives at her decision to terminate. There are also laws which lay out conditions for the quality of care given by hospitals and clinics where the procedures are performed. Despite access to abortion services being relatively free and easy, the Netherlands actually has one of the lowest abortion rates in the world, according to its Centre for Contraception, Sexuality and Abortion.
Never Again March to Legislate Abortion 2012. 20000 people marched to reclaim that cases like Savitaâ€™s never happen again.