This is an edited version of a 10 minute informal talk I gave at the recent Coalition to Repeal the 8th conference, ‘What Women Need’.
The theme of this conference is ‘What Women Need’. My aim today is to tell you something about the sort of abortion legislation women do not need, but may well get, once the 8th Amendment is repealed. I do think that it would be possible to draft transformative post-8th legislation to regulate abortion in Ireland; legislation which might help to bed in women’s access to care as part of a long-term process of movement to lightly regulated free, safe and legal abortion (see a recent talk here). But my topic today is something else.
I want to talk instead about the initial suggestions we have seen from members of Fine Gael and Labour about the sort of abortion legislation they would support if they were in office in a future government. These suggestions might be called ‘moderate’ or ‘middle ground’. They are made by TDs who tend to preface their statements with phrases like ‘I’m pro-life but…’ or ‘I am not in favour of abortion on demand but…’. My aim today is to provide an analysis of the legal imaginary underpinning that purported ‘middle ground’ – a ‘spotter’s guide’ to its key features.
I need hardly remind you, of course, that any proposal which does not comply fully with international human rights norms, cannot properly be described as ‘moderate’, except perhaps from the perspective of the established exceptionalist Irish approach to abortion law, which assumes that only a brutally conservative form of regulation can give effect to the Irish people’s supposed deep moral investment in how pregnant persons conduct their lives. Any legislation which does not provide for a period of access to abortion at the woman’s request in early pregnancy is far from the European middle ground. If you want to know what minimalist, middle ground legislation, which takes account of the complexity of the abortion issue and the full panoply of the state’s obligations under various bodies of human rights law, might look like, I suggest the ‘General Scheme of the Abortion Access Bill 2015‘, which a group of us drafted for Labour Women (but which they decided they could not adopt).
It is very interesting to watch the advance process of legitimating the supposed ‘middle ground’ unfold. Yesterday, the Taoiseach announced, invoking the usual abhorrence of ‘abortion on demand’, that he would not commit to a referendum on the 8th in the lifetime of the next government without giving consideration to what would replace it. This sort of talk is something of a trend for this government. It repeatedlyexceptionalises abortion as a uniquely divisive and profound moral issue. In parliamentary debate the government presents pro-choice proposals for speedy reform as ill thought out, irrational, and undemocratic. The government says it will not be ‘rushed’ when pro-choice TDs ask it to respond to devastating cases. Often, the government – somewhat paradoxically – invokes the ‘bitter experience’ of thereferendum that lead to the Eighth Amendment to argue against its speedy replacement.
Note that the Taoiseach didn’t invoke conservative Catholic ideology yesterday (though his reference to ‘abortion on demand’ as the thing to be avoided implies a profound distrust of women’s decision-making). Instead he takes a supposedly ‘neutral’ approach relying on the assumption that repeal of the 8th generates a void or gap which must be filled, and that the filling of that gap will be a uniquely complex task. In his reliance on this discourse of uncertainty, the Taoiseach is able to present himself as steady and responsible. At the same time, he has not made any firm commitment to a process of research, consultation and law reform towards appropriate legislation. He won’t commit to a referendum, in other words, for fear of an imagined looming void which he refuses to address. (Of course, there is no void per se. The PLDPA and associated medical law would remain in force until challenged or repealed, and the government could in any case prepare legislation for implementation to be brought into force immediate aftermath of the removal of the Amendment from the Constitution. If there is dangerous uncertainty in the law, it is the actually-existing dangerous uncertainty of the 8th Amendment-X case- PLDPA regime.)
Moreover, the Taoiseach’s focus on uncertainty works to close off discussion of the positive dimensions of the post-8th legal landscape. He offers no positive assessment of the shape of the constitution in women’s rights terms once the 8th Amendment is repealed. He does not point out how difficult it would be to justify criminalisation of abortion, for example, if the 8th Amendment could no longer be invoked to provide supposed constitutional impetus. He offers no sense of the tremendous potential – referenced by Anne Furdei of BPAS at this conference – for Ireland to use repeal to propose a new kind of abortion law, which demonstrates attention to and learning from the creative legal strategies which have been developed in other jurisdictions in the decades since the Amendment passed.
Having erected the spectre of overwhelming uncertainty, the ‘moderates’ will propose legislation which they claim is designed to provide clarity and reassurance to an unsettled public. You should look out for three key features in the drafting of any such legislation.
1) A retreat to the familiar and 8th Amendment lite or PLDPA plus. The discourse of uncertainty discourages creative research-based engagement with new legal approaches to the regulation of abortion, and encourages reliance on established, if dangerous, legal resources. The point of repealing the 8th Amendment is to rid our law of the unworkable, foetocentric rules it has been allowed to generate, and replace them with a regime which gives effect to women’s constitutional and other human rights. If language and concepts inspired by existing law are allowed to survive, zombie-like, the campaign for repeal then we must wonder whether repeal can be of more than symbolic importance. The Labour party’s recent proposals for a post 8th Amendment abortion law contain a disturbing example of retention of X case principles. These proposals suggest that a woman would be entitled to an abortion in early pregnancy if she could demonstrate a ‘real and substantial risk’ to her health. The phrase ‘real and substantial risk’ is a direct borrowing from the X case. We know that this phrase has proved very difficult to interpret in cases in which women’s lives are at risk and there is no reason to believe it will fare any better outside of the life-saving context. The borrowing of this language indicates the extent of the 8th’s impact even on supposedly liberalising legal thinking – it demonstrates a mindset in which the unborn remains a substantive legal subject, and women must be held accountable for any decision with serious implications for the survival of the pregnancy. Where we might expect to see substantive exploration of how general commitment to the protection of foetal life should be balanced against women’s many constitutional rights (or indeed reference to the concrete medical conditions which impact women’s pregnancies and which require a response from the law) we find instead an uninterrogated presumption that women come second, even the the absence of the 8th.
2) Restrictive language masquerading as providing certainty. If uncertainty is presented as the problem which abortion legislation must resolve, then politicians may be tempted to assume that precision in language is the solution. The search for black and white language is seductive but often misguided – particularly if new legislation continues to follow a medical indications model (under which a woman can access an abortion only because she or her foetus can be diagnosed with a particular type of medical condition rather than because she wants one). This was the difficulty whichbedevilled Clare Daly’s fatal foetal abnormality Bill with TDs who opposed the Bill insisting that abortion could only be constitutional if a doctor could say with certainty that the foetus would not survive birth – an impossible standard.
3) Legal formalism. You should expect to see that excessive focus on the form and language of new legislation comes at the expense of attention to how the law will work in practice. We already know that the PLDPA and the X case judgment have failed at the level of interpretation – the law has been read down in ways which actively harm women. This has happened for two reasons. First, Irish medical culture – as evidenced by the cases of Savita Halappanavar, Ms Y and PP v HSE, and as highlighted by the resistant activism of Doctors for Choice – emphasises obedience to the most conservative possible interpretation of the law, even when that interpretation is unreasonable from an ethical perspective because it does harm to the patient. Second, Irish legal culture, particularly within government and the civil service, is technocratic, conservative, litigation focused, and marked by excessive deference to the Attorney General as the most important interpreter of the Constitution. During the PLDPA debates, the government sought to connect to questions of the eventual implementation of the Act by inviting short testimony from elite medical and legal experts. Despite this, there is an obvious lack of government-led research or investigation into how abortion legislation would intersect with the lived reality of dominant Irish maternity care practices. In the General Scheme of the Abortion Access Bill 2015 we identify several crucial such gaps in public knowledge. If they are not filled, we will effectively be legislating into a black hole. (The government cannot even tell us, for example, how many terminations carried out under the PLDPA were abortions, and how many were so-called early deliveries.)