An IHRL-compliant post-8th Amendment Abortion Law for Ireland. #repealthe8th

The open-access journal feminists@law has today published the general scheme of the ‘Access to Abortion Bill 2015; a piece of model legislation drafted by a group of feminist academic lawyers and intended to regulate abortion in Ireland after repeal of the 8th Amendment.

The authors are: Mairead Enright, Fiona de Londras, Vicky Conway, Mary Donnelly, Ruth Fletcher, Natalie McDonnell, Sheelagh McGuinness, Claire Murray, Sinead Ring and Sorcha Ui Chonnachtaigh.

  • The model legislation is here.
  • A short paper placing it in its constitutional and statutory context is here. This blogpost draws on that paper.

The legislation was originally drafted for Labour Women, which established a Commission for Repeal of the 8th Amendment in late 2014. Part of the work of that Commission was to produce proposed legislation which could regulate  abortion in the event that the 8th Amendment was removed from the Constitution. The Commission comprised three groups: a political group, a medical group, and a group of legal experts. The authors of this paper are those legal experts. Although drafted as part of the Labour Women Commission, and with some (limited) input from the other Commission groups, the proposed draft is that of the authors of this paper (working within the confines of our remit as ‘legal experts’ to the Commission) and not of the Labour Party or of Labour Women. It has not been adopted by the Labour Party or by Labour Women.

In drafting, we were guided by four principles.

  • First, and perhaps most importantly, we were determined to design a law that would regulate abortion in Ireland by primary reference to the bodily integrity, welfare, agency, autonomy and self-determination of pregnant women while still recognising a public interest in preserving foetal life where possible, with the pregnant woman’s consent. By achieving this, we hoped to express a legislative commitment to no longer viewing a pregnant woman’s body as the mechanism by which the State fulfils its perceived responsibilities towards the foetus, but rather as the body of a woman who maintains her agency and her constitutional rights notwithstanding her pregnancy. In that sense, we proposed a piece of law, which would aim to be transformative, to a significant degree, of the prevailing discourse around Irish abortion law. The point is not that we think foetal life is unimportant. Rather, we wanted to show what woman-centred abortion legislation would look like in an Irish context.  To that end, we inserted key Guiding Principles in Head 3 that should be applied whenever the legislation is being interpreted or applied. These radically shift the approach to abortion from that the status quo. Head 3 provides:

(1) Access to abortion is guaranteed in accordance with the provisions of this Act.

(2) In making any decision under the Act, or in providing medical care and services under this Act, the Heads shall be interpreted in the manner most favourable to achieving positive health outcomes for the pregnant woman, and to the protection of her rights, including the rights to:

a. life;
b. freedom from torture, cruel, inhuman and degrading treatment;
c. bodily integrity and autonomy;
d. self-determination, including the right to informed decision-making in relation to medical treatment;
e. private and family life, including the right to privacy;
f. health, including the right of access to appropriate health-care in a safe, prompt and timely fashion, and the right of access to healthcare information.

(3) Access to abortion services will not be impeded because of race, sex, religion, national, ethnic or social origin, disability, HIV status, marital or family status, immigration status, sexual orientation, age, birth or other social status.

(4) Sustaining embryonic and foetal life in pregnancy is an important social role, which should be voluntary and consensual.

That said, this is not pro-choice legislation in the ‘free safe and legal’ mould, not because the authors are not pro-choice (we are), but because we were drafting for the Labour Party, which is not, as yet, committed to providing free, safe and legal abortion after repeal of the 8th Amendment. (The explanatory notes to the draft legislation highlight points at which we feel the legislation may be too conservative). Bearing in mind the restrictions entailed in drafting abortion legislation for a political party in Ireland at the time, we strayed beyond mainstream political consensus to the extent that we felt European and international human rights law clearly enabled us to do. As such, we suggest that our draft law may represent a useful yardstick against which to measure later legislative proposals by a future Irish government.

  • Second, the proposed law designates grounds for abortion which, to a significant degree, challenge the mainstream consensus on what a new Irish abortion law should contain. Politicians advocating for reform have tended to accept that a new law should permit abortion not only on grounds of risk to the life of the woman, but on the grounds that the pregnancy has come about through incest or rape, or that the foetus is incapable of surviving outside the womb. There is also some agreement that abortion should be available on a limited ‘health’ ground – certainly one which would reassure doctors that they could act to end the pregnancy of a seriously ill woman whose life is not at risk. Our proposed grounds go somewhat beyond such mainstream consensus. In particular :
    • we do not provide for a separate rape ground, in order to avoid any suggestion that a woman should be required to prove that she has been raped or to participate in any criminal process;
    • we provide for two health grounds: a simple one applicable in early pregnancy, and a requirement to prove severe or disabling damage to health in later pregnancy and
    • we do not confine the foetal anomaly ground to situations in which the foetus is certain to die within the womb if the pregnancy continues.
  • The proposed law aims to enshrine an approach to medical practice that replaces pro-natalist paternalism with a welfare orientation, seeing the pregnant woman as the patient and abortion as a medical procedure. This is intended not only to nudge a reorientation of Irish maternal medical practice, but also to empower medics to follow the course of medical treatment that they believe is best for their primary patient (i.e. the pregnant woman) as determined by doctor and patient together.
  • We were concerned that the legislation should ensure—to the extent possible—that abortion is actually available in practice, while also respecting the deeply held convictions of members of the medical profession and of the public in respect of the status of the ‘unborn’.This was of fundamental importance. It is quite clear that the legal availability of abortion can be frustrated by harassment, unregulated conscientious objection, and failure to provide services. In order to try to achieve this we focused on three areas: conscientious objection, provision of services and protection of locations in which services are provided, and review of negative decisions as to the availability of abortion in any particular case.

We have published our proposals on an open-access basis for discussion, debate and development by all interested parties.

Negligence, Symphysiotomy and Past Harm.

Women wrongfully subjected to symphysiotomy in Ireland have human rights to an acknowledgement and apology, to guarantees against repetition, to measures of restitution and rehabilitation and to monetary compensation. I have written about the symphysiotomy redress scheme on this blog and elsewhere on a number of occasions. It was recently reported that over 50 women who applied to the scheme have been denied redress because they were unable to provide the medical records which Judge Harding-Clarke demands. Al Jazeera recently reported women’s experience of the hostile administration of the scheme. A number of members of Survivors of Symphysiotomy decided not to participate in it, preferring instead to try their luck with civil litigation.  There have been three symphysiotomy negligence cases to date. The first, Kearney, initially heard in 2006, was a case of symphysiotomy after C-section, performed in Our Lady of Lourdes Hospital in Drogheda. Mrs. Kearney succeed in the High Court and Supreme Court. Her case is the origin of the test which enabled two further litigants to bring negligence cases to the High Court, against the Coombe hospital. Another plaintiff, Noreen Burns, died last summer before her case against Holles Street  could be heard. The first case to come to hearing, a Kearney-type symphysiotomy after C-section, settled. The second, a case of prophylactic symphysiotomy performed 12 days before the birth ended with a recent judgment by Cross J. As the term is used in this judgment, a prophylactic symphysiotomy refers to an elective, non-emergency symphysiotomy performed before labour begins, purportedly to slightly widen the pelvis and facilitate vaginal birth in the first instance and in future births.

Green shoots from the latest judgment.

What we have learned from these cases so far is that symphysiotomy litigation is not a hopeless strategy, as many TDs who support the redress scheme assert. In particular, we have learned that the Irish courts are likely to be open to hearing claims even where decades have passed since the symphysiotomy was performed.   In his recent judgment, Cross J. held that the relevant date of knowledge for the purposes of s. 2 of the Statute of Limitations was the date at which the plaintiff had sufficient knowledge to justify bringing a claim. This was not the date of the symphysiotomy itself, or the date on which she first began to suspect that a symphysiotomy had been wrongfully performed,  or the date on which she first made inquiries to the hospital. It was the date on which she received her medical records.  This point was not directly argued in Kearney and it is very helpful to have the clarification. Of course, two years remains a ridiculous limitation period for personal injuries of this kind, and many women will find their claims statute-barred despite this decision.

We have also learned that Irish courts are willing to accept that litigants’ injuries are attributable to symphysiotomy. In his recent judgment, Cross J. accepted, against the assertions of the defence, that the plaintiff had suffered life-long physical and psychological consequences as a result of the symphysiotomy.  Even though there were no records of the plaintiff raising her symphysiotomy with her doctor, Cross J. accepted evidence that she had discussed the resulting injuries with a friend long before the question of legal proceedings arose, and accepted the evidence of her medical experts which attributed her injuries to the symphysiotomy. In this respect, it is important to note that the High Court is less demanding than Judge Harding- Clarke’s redress scheme, which requires women to produce paper records going back to the time of the operation. Unfortunately, Cross J. repeatedly stresses that he makes no finding as to the general safety of prophylactic symphysiotomy. 

We have also learned that hospitals’ defence teams are willing to proceed very aggressively against elderly women. The government, of course, has not adopted ‘model litigant principles to moderate hospitals’ or the State Claims Agency’s dealings with victims of abuse. However, it is consoling to see that Cross J. dismisses some of the worst of the defence tactics deployed in this case; for instance, the implication that aspects of the plaintiff’s claim were concocted in collusion with Survivors of Symphysiotomy, and the argument that the existence of the redress scheme meant that he should be less willing to find in the plaintiff’s favour.

Difficulties in winning symphysiotomy cases under Kearney, and this latest judgment.

Inevitably, something is lost by framing a symphysiotomy case as a negligence case. The cost of litigation, and the emotional toll that it can take on litigants, and the campaigners who support them, are important considerations. We may be willing to accept that in exchange for some forms of success in litigation – a finding of liability and an award of meaningful compensation. But the latest symphysiotomy case suggests obstacles to recovery which are internal to Irish negligence doctrine.

There is no difficulty in establishing the duty of care in  a symphysiotomy case because it is clear that doctors owe duties of care to their patients. Other kinds of institutional abuse case are more likely to fail at the point of establishing duty of care, fiduciary duty, or vicarious liability (see e.g. O’Keeffe v. Hickey and a raft of cases in Canada and Australia). As already discussed, the most recent symphysiotomy case also suggests that causation requirements will be readily satisfied. Symphysiotomy litigants are more likely to struggle with establishing breach of the doctor’s duty of care. This is because, for women who gave birth in the 1960s at least, the court’s approach to the standard of care is deeply shaped by their desire to avoid prejudice to the defendants caused by the passage of time.  It is not only that the symphysiotomy is judged according to medical standards prevailing at the time that it was performed, but that the plaintiff’s case is dramatically circumscribed to the advantage of the defendant.

Excluding the consent question and misrecognising torture.

First, Cross J. accepted that the plaintiff was not told that a symphysiotomy would be performed on her. However, he could not hear further argument on this point. In Kearney, the High Court, and the  Supreme Court  held that the plaintiff could not base her claim in the failure to obtain her informed consent to the procedure because it could not be known what information had been given to her at the time the operation was carried out. Almost 40 years had passed since her symphysiotomy. All of those involved in her direct care were either dead, living elsewhere, or uncontactable and the records of the procedure were incomplete. It would be unjust to expect the hospital to defend itself against such a claim. There is therefore no argument in Kearney around assault, or around negligent failure to obtain informed consent along the lines of Walsh v. FPS. Last July, the United Nations Human Rights Committee emphasised failure to obtain women’s consent when it  categorised symphysiotomy in terms of terms of violation of Article 7 of the ICCPR: the prohibition against torture, cruel, inhuman and degrading treatment, including forced subjection to medical experimentation. The Committee advocates prosecution of surviving doctors who performed symphysiotomy. If older symphysiotomy cases are not consent cases, of course, then the  core of the injury done to many women is eliminated from  judgment. If we think of symphysiotomy  as the unlawful intentional infliction of pain and suffering on women for discriminatory reasons – as torture – then the  Kearney judgment is deeply flawed. The removal of the consent question allows the development of symphysiotomy to be presented as an essentially benign practice – part of the natural development of obstetric care in Ireland. In the process, it leaves many of the problematic narratives about the safety of symphysiotomy (embedded in the Walsh Report) untouched. One might almost say that in Cross J.’s judgment, the operating doctor is partially redeemed, without having to take any responsibility.  The judgment also, in Blackburn’s words, requires the divisibility of injuries that people experienced as indivisible. That much may undermine the value of litigation in the eyes of victims, who feel that they can only obtain an incomplete hearing; that their injury, to borrow from Nicky Priaulx, cannot be  ‘seen’ in full.

The ‘any justification’ approach

Second, Kearney prescribes a modified Dunne test, again intended to allow the plaintiff to bring a negligence claim without unduly prejudicing the defendant. The plaintiff’s argument must be that “there was no justification whatsoever in any circumstances for the performance of a symphysiotomy on her at the time that it was performed”. If the defendant can establish in credible evidence any realistic reason justifying the symphysiotomy she cannot succeed. As Hardiman J. confirmed in Kearney in the Supreme Court, hypothetical justification will suffice. Cross J. acknowledges that this is obviously a very high threshold for the plaintiff to meet. He finds that there were realistic reasons justifying the performance of the plaintiff’s symphysiotomy – examination of the plaintiff convinced the treating doctors that vaginal delivery would not be possible. Rejecting the plaintiff’s expert evidence, he holds that doctors were justified in their suspicion of multiple Caesarean sections (which were more difficult to avoid given that the same doctors would not provide sterilisation and the law restricted access to contraceptives), and that symphysiotomy was then considered an appropriate and safe  treatment in cases of the plaintiff’s kind by consultants at the Coombe and the National Maternity Hospital.  The plaintiff’s recorded diagnosis matched this prevailing rationale. We can contrast this with Kearney in which Ryan J. held that Mrs. Kearney’s pelvic measurements and presentation did not suggest, on the terms on which symphysiotomy was performed in 1969, that she was a proper candidate for symphysiotomy. Thus there had been no realistic reason for performing the symphysiotomy in her case.

It is important to clarify how Cross J. defines the procedure he is assessing. He works from the assumption that, in 1963, symphysiotomy could be preferred to Caesarean section in cases where the measurements of a woman’s pelvis relative to the size of the as yet undelivered baby’s skull suggested that vaginal birth would be too difficult.  First, he discounts the fact that the plaintiff’s symphysiotomy was performed 12 days before she gave birth. In Kearney, it was crucial to Ryan J.’s reasoning that the symphysiotomy was performed “on the way out” after the baby was already born – there could be no good reason, to his mind, for performing a symphysiotomy in these circumstances. We might have expected the 12 day delay to act as a similar indicator of irrationality in this case. However, the judge accepts that the defendants believed, at the time, that the plaintiff was overdue. So he characterises the symphysiotomy as a prophylactic symphysiotomy and treats it in the same way as any  prophylactic symphysiotomy performed shortly before labour began.  Second, finding justifying reasons does require the judge to select the community of knowledge which generates those reasons. Is it the British and Irish obstetric community of the time, or something narrower? Cross J. frames the justifying reasons very tightly in terms of time and place. He has some regard to the plaintiff’s expert evidence to the effect that a symphysiotomy should not be attempted before labour has been tried, since the most effective way to measure the pelvis is to attempt to put the baby through it. However, he characterises this type of prophylactic symphysiotomy, performed – perhaps erroneously – without trial of labour, as a stage in the evolution of symphysiotomy as a medical practice at the Coombe.  It was carried out during a period of trial-and-error expansion of the original terms on which symphysiotomy had been revived at the National Maternity Hospital, and as a practice was rapidly phased out when the Coombe introduced the (from a feminist perspective highly problematic) practice of active management of labour. Thus, it could be justified on its own terms in 1963 even though earlier and later Masters of the Coombe would never have done it. This indicates  that Kearney may require – in line with Cross J.’s refusal to draw any conclusion on the general consequences of symphysiotomy – that every symphysiotomy will be analysed very strictly on its own terms before any finding of liability will be considered. This is very problematic if we consider that the experimental nature of the practice of symphysiotomy – the tendency to play fast and loose with risk and necessity – is central to its character as a human rights abuse. If broad periods of experimentation are sliced down into ever finer periods of stabilisation and normalisation, that truth is lost.

The issue of ‘inherent defects’.

 Kearney affirms that there is another route open to the plaintiff, which also comes from the judgment in Dunne. She may argue that the type of symphysiotomy performed on her, as a procedure, albeit it was supported by a respected body of medical opinion, suffered from “inherent defects” that “ought to have been obvious to any person giving the matter due consideration” at the time. This element of the Dunne test ensures that the courts are empowered to declare even generally accepted medical practices as unsafe. Expert witness support for a minority practice is a very weighty matter to be taken into consideration, but it is not definitive. As  Sachs LJ held in Hucks v. Cole, ‘The court must be vigilant to see whether the reasons given for putting a patient at risk are valid in the light of any well-known advance in medical knowledge, or whether they stem from a residual adherence to out-of-date ideas”  In Donovan v. Cork Co. Co., Walsh J. held:

” If there is a common practice which has inherent defects, which ought to be obvious to any person giving the matter due consideration, the fact that it is shown to have been widely and generally adopted over a period of time does not make the practice any the less negligent. Neglect of duty does not cease by repetition to be neglect of duty.”

McCarthy J. elaborated on that test in some depth in Roche v. Peilow. In that case, Finlay P. in the High Court had held that “the universality of a particular practice adopted by an entire profession must itself be evidence that it is not a practice which has inherent defects which ought to be obvious to any person giving the matter due consideration”. Finlay P. suggested that “inherent defects” connoted “an act of gross ignorance such as could not have been committed by any other ordinarily informed member of the profession.” McCarthy J. demurred, holding that this test would impose too high a burden of proof on the plaintiff.  Professionals, in effect, are required to notice “clear and present dangers”.

This line of authority is not discussed in Cross J.’s recent decision. However, it looks to me as though his judgment is rather too close to the Finlay approach rejected by McCarthy. He defers, not as Finlay did, to universal or generally accepted practice, but to a minority school of respected obstetricians, and finds that their support of the practice was incompatible with the presence of inherent defects. He finds that given the wide acceptance of prophylactic symphysiotomy among what he calls “the Dublin school” of obstetricians at the time, and the existence of debates around the practice in hospital records and the proceedings of professional societies in which the practice was stoutly defended, it cannot be said that the practice was inherently defective. In Kearney, Ryan J. accepted that there was ‘outright condemnation’ of symphsyiotomy after C-section, but in this case Cross J. finds that prophylactic symphysiotomy was controversial, but defensible and was not the subject of peer criticism. Central to this conclusion, of course, is his acceptance of the defendants’ claim that these doctors at the time generally did not know of, and could not have foreseen, the serious health complaints that immediately and subsequently afflicted women subjected to symphysiotomy.

Whether, if properly applied, the McCarthy approach in Roche could be of much assistance to plaintiffs is an open question. It is not clear what “inherent defect” means in Irish law. Does the test invite a judge to evaluate the medical practice from his own lay perspective – to engage in his own evaluation of the risks and benefits of the procedure as they appeared in the light of international medical knowledge at the time, and perhaps to consider them in the light of the human rights norms then prevailing in Irish law?  Or is he merely entitled  to consider, against the evidence of the defence’s experts, whether the doctor’s decision was incapable of standing up to rational analysis? (as in the English test in Bolitho) If the latter, is there any real difference between the Kearney “no justification” test and the “inherent defect” test? It may be, following McCarthy in Roche, that inquiry into the presence of an  “inherent defect” should go primarily to the dangerous outcome of the procedure chosen, irrespective of the reasons for performing it. This seems to be the approach taken by Ryan J. in the High Court in Kearney where he emphasised the maternal morbidity associated with symphysiotomy after Caesarean section. (Indeed, Ryan J. was more willing than Cross J. to make general findings, based on expert evidence, about the consequences associated with symphysiotomy). Then, questions arise as to whether the dangers of prophylactic symphysiotomy  should have been obvious to doctors in 1963.  In Roche, McCarthy J. acknowledged, following Kelly v. Crowley, the risks of judging professional conduct with the benefit of hindsight. Nevertheless, he said , “it cannot be a legal principle that a profession is, so to speak, entitled to ‘one free bite’ – to wait until damage is done before taking an obvious means of avoiding that damage.” Arguably, with symphysiotomy, “the Dublin school” had more than “one free bite”, but never sought to properly test their results. Cross J. notes, for instance, that Master Kevin Feeney was interested in pursuing follow-up studies of symphysiotomy patients. But in practice this was never done.

The upshot

The upshot of Kearney as applied here is that (i) we judge the hospitals where symphysiotomy was performed according to a particular construction of  the standards of their former employees’ time and place (the Coombe and the NMH, in Dublin in 1963); (ii) we make them answerable only to a narrow range of claims shaped by the limited archive their practice generated; few records (because they were not kept,or not made) and no records of follow-up with women subjected to symphysiotomy (because it was not done, and they were discouraged from seeking it) and (iii) we evaluate their practice according to particular accounts of the development of particular kinds of medical knowledge, leaving no room to introduce considerations from women’s lived experience or from then-prevailing constitutional and human rights standards

Medical knowledge, hindsight and power.

Cross J. frames himself as dealing with a medical negligence case. The UNHRC would say he was dealing with an instance of historical systemic, institutionalised gender-based violence. There is some recognition of this in Cross J.’s judgment when he acknowledges the importance of allowing the plaintiff to tell her story, and when he apologises because, from his perspective, it is impossible to find in her favour.  He emphasises her good character throughout the judgment to show that she is deserving of respect. He quotes from Chief Justice Crewe (as he did in an essay on judicial reasoning in the Dublin Review of Books last year) when he says that he would have “taken hold of a thread or twine-twig” to support her, but the precedent in Kearney binds him. The quote is an interesting choice. The 17th century judge is lamenting the fact that he cannot find in favour of an established noble family in the Oxford Peerage case, battered by recent war, though he is from an old established family himself: “I have laboured to make a covenant with myself that affection may not press upon judgment”. Arguably, the choice of quote evidences some affection for women of the plaintiff’s class, and some collective shame, to borrow Anne Genovese’s emphasis, and a desire to atone for wrong. But tellingly, it is not a desire rooted in a sense of legal responsibility. It is obvious, on this judge’s view that it would be impossible to find for this plaintiff and still exercise judgment in line with our unassailable common heritage.

Chris Cuneen, writing about Australian efforts to use civil litigation to obtain justice for Indigenous victims of historical institutional abuse argues that processes of common law judgment effectively create a ‘defence of history’ which closes out the ‘worldview’ which motivated systemic injury and  operates to ‘reconstruct and obscure’ litigants’ experience of abuse. It seems that Cross J. has fallen into this trap. The judgment very much depends on forgetting the systemic characteristics of the deliberate revival and development of symphysiotomy by Catholic doctors practising in the 1960s in a state where, as is especially clear from the link between contraception and symphysiotomy acknowledged in this judgment, government was inseperable from projects designed to control women’s reproductive agency. First, the judgment gives great weight to medical records and  debates – he engages in much closer reading of these texts than either court in Kearney, with clearly significant consequences. He is impressed by the fact that the practice of symphysiotomy was “carefully recorded and subject to transparent review”, tending to suggest that they merited great weight. However, as Kune writes in the Australian context, official records are not always as regular as we might expect. They do not always disclose the true reasons for particular decisions. They are prepared for particular institutions’ purposes and legitimate particular institutional narratives. Until these narratives are put in a broader social context, the records are liable to be misread. Cross J.’s approach to that context is remarkable. Cross J. presents the development of medical knowledge in heavily masculinist terms. British and Irish doctors lay down intellectual challenges to one another in a series of robust exchanges, and over time both groups alter their views, to the betterment of medical science. What about the moments in this exchange which appear not to fit that pattern? He describes a recorded 1951 instance of outright British criticism of the Irish approach to symphysiotomy:

the truth of the conflict between the British and Irish experts, though couched in Biblical and religious terms, [was] more of a question of a clash between native obstetricians defending Irish practices, and visitors from the old colonial power.

Thus, symphysiotomy becomes part of an emergent national medical heritage, understandably defended against the English. But there is little examination of the historical reasons why the Irish medical profession defined itself against Britain in this way, or chose to make those distinctions visible on the bodies of women. In another exculpatory passage, he dismisses the claim that Catholic doctors performed symphysiotomies rather than C-sections as a way of avoiding the questions of contraception and sterilisation, by noting that the Rotunda hospital, which was not under the direct control of the Archbishop of Dublin, also performed symphysiotomies, but only after Caesarean section. He does not mention that the Supreme Court, and indeed the government, accept that this procedure generally could not be justified even at the time. Second, Cross J. gives the defendants the benefit of the doubt when he says that doctors performing prophylactic symphysiotomies believed that the operations had no serious consequences for women, even though in coming to that belief they had to ignore or discount women’s immediate responses to the surgery and afterwards  – their pain, difficulty in walking, difficulty in caring for their newborns, confusion, disbelief and shame. They had to ignore the reactions of these women’s mothers, sisters, friends and husbands. They had to neglect to conduct proper follow-up checks. They benefited from a medical and social system which, as Cross J. acknowledges, required women to accept their lot, and which sometimes accused women of imagining or falsifying their symptoms. They were, the judgment notes, “content with the good results and lack of complaints”. They had to engage in the sort of overt dismissal of women’s embodied experience that is only possible in a violently patriarchal society, such as the Ireland of the 1960s. “Time” as Chief Justice Crewe said “hath his revolutions” and so Cross J. accepts that a prophylactic symphysiotomy would not be done today, but he can nevertheless square it with the benificent practice of the ’eminent’ doctors of another time. We could argue that Cross J. finds it possible to treat this body of knowledge otherwise than as defective because he is a product of another iteration of same patriarchal society – a society in which it is at last possible to accept that these women’s suffering was genuine, but not to hold accountable the doctors who caused it.This would be a better judgment if it accepted that medical knowledge is genuinely contestable, and did not supplement the advantage already conferred on the defendants by the Kearney test with unnecessary deference to the official historical record. Borrowing from Nietzsche, Cross J. suggests that doctors were experimenting with symphysiotomy, and gradually coming to better knowledge of it: “philosophising with a hammer  and testing concepts and conclusions by striking them to see if they were hollow”. “Philosophising with a hammer” refers to Nietzsche’s efforts to irreverently dismantle old values; a process of self-overcoming which he acknowledges is necessarily destructive. Cross J. does not pick up any hammer of his own.

Policy arguments for a modified approach.

Kearney tends to de-contextualise women’s injuries in order to avoid prejudice to the defendant at the stage of gathering and presenting evidence. But it comes at too high a cost. In this case, a woman who arguably has a good case under Articles 3 and 8 ECHR , and plausibly under the equivalent provisions of the Constitution, was left without an appropriate remedy. A woman entitled, perhaps, to aggravated damages to take account of the experimental and non-consensual nature of the practice, was left without a remedy. Now, these are ultimately not run-of-the-mill tort cases. They involve intensely traumatic experiences. They are characterised by an imbalance of power between plaintiff and defendant at a perhaps uniquely vulnerable moment in the plaintiff’s life. The nature of childbirth is such that this imbalance necessarily persists into obstetric care in the present day. These cases have their origins, as the UNHRC recognised last July, in deeply gendered and abusive institutional processes.  They engage significant human rights violations perpetrated by men working under the supervision of the state; they are arguably O’Keeffe-type cases – or, in American terms, analogous to medical experiment cases in which the state was implicated, such as the  Cincinnati radiation case  or Heinrich v. Sweet. Precisely because they are so distinguishable from ordinary medical negligence cases, there should be no significant objection from public policy in adjusting the Kearney approach. Because prophylactic symphysiotomy is unlikely to be revived and has no significant comparators today, there should be no chilling effect on contemporary medical practice. (Cross J. accepts the evidence of Dr. Peter Boylan, for the defence,  that some experimentation is necessary for medical science to advance but as a matter of public policy, doctors must be subject to reasonable constraint.) There is no major cost either to insurers or to the state in permitting the small number of potentially successful cases a fairer hearing.  In other jurisdictions – particularly in Canada – courts have been willing to modify negligence doctrine where public policy compels it, in order to do justice in cases of historical institutional abuse. I would think that the “inherent defect” test provides some scope for this modification. If this cannot be done, then the case for a new public inquiry and a modified redress scheme is stronger than ever.

Childbirth, Choice and the Courts: The 8th Amendment and More.

Article 40.3.3 of the Constitution reads: ‘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.’  We typically think of this as an Article designed to prohibit abortion, while forgetting that the text of the provision is not  so limited. In Roche v. Roche the judges of the Supreme Court came to differing views about its application outside the abortion context. There are two approaches. We may focus on the language, which is sufficiently broad to regulate all pregnancies, and not only those which it is immediately sought to terminate by abortion (see the judgment of Murray CJ). Alternatively, we remember that there are specific reasons why this provision is in the Constitution in the first place – that it was sought to copper-fasten the existing statutory prohibition on abortion –  and do not permit it to regulate all pregnancies (see the judgments of Denham J, Geoghegan J, and also the decisions in AG v. X and Baby O, cited by Hardiman J. in his Roche judgment).  I think the latter is the better reading of the authorities, but the more expansive reading has tremendous force. For example in P.P. v. HSE, the Amendment was invoked by the High Court in a case in which it was sought to withdraw somatic care from a brain-dead pregnant woman. We know, also, from the June 2013 report into the case of Savita Halappanavar (and from the testimony of other women in the wake of that case) that the Amendment was considered binding in day-to-day practice in the management of inevitable miscarriage.

It is still not clear what the legal consequences of the more expansive reading have been for Irish maternity care, particularly in cases where there is disagreement between a woman and her doctors as to how her pregnancy should be managed. The National Consent Policy says:

The consent of a pregnant woman is required for all health and social care interventions.   However, because of the constitutional provisions on the right to life of the “unborn”, there is significant legal uncertainty regarding the extent of a pregnant woman’s right to refuse treatment in circumstances in which the refusal would put the life of a viable foetus at serious risk. In such circumstances, legal advice should be sought as to whether an application to the High Court is necessary.

There has been very little guidance from the courts. I would instinctively argue that no 8th Amendment issue should arise in cases where a competent woman wishes to make a healthcare decision which her doctors feel is unwise, but which does not place the foetus’ life at risk. We tend to forget that the unborn has only one right – the right to be born alive. In Baby O, the Supreme Court rejected the notion that the right to life of the unborn encompassed a right to be born safely, or a right of access to medical treatment to ensure the child, once born survives infancy. Nevertheless, where the risk to the foetus is a risk to its future health, for example, it is unclear whether a woman’s decision could be overridden. There is conflicting unreported High Court authority on this point, in cases of HIV positive pregnant women, as reported by Katherine Wade in this earlier blog-post.

It is certainly true that a barrister acting on behalf of the HSE in seeking to compel a woman to submit to unwanted medical treatment will find it easier to make their case if they can suggest that the woman’s preferred course of treatment places the foetus’ life at risk. In getting to that point, cases are likely to turn on expert evidence. The level of risk required to invoke the right to life of the unborn may be quite low – for example in the 2010 case of Mother A, the relevant risk was of occurrence of uterine rupture during vaginal birth after C-section.  The risk of death of the foetus due to uterine rupture in such births is generally accepted to be small, and could not be analogised to the certainty of death involved in an abortion, for example.

We do not have any direct reported judgments in cases where the court has been satisfied that the foetus’ life was placed at risk by a pregnant woman’s medical decision. However, we can guess at how they are decided. Following PP v. HSE, it can be said that the unborn has the right to all practicable medical intervention – even deeply invasive intervention –  necessary to facilitate its being born alive. ‘Practicable’ here means treatment which is neither futile nor contrary to the ‘best interests’ of the unborn – treatment which is not at the outer reaches of medical best practice. It is difficult to say what points a pregnant woman could advance to argue that she should not be subjected to deeply invasive treatment to secure the right to life of the unborn, or that she should be allowed to choose less damaging treatment which poses a greater risk to the foetus’ life. The best evidence that we have of the kinds of arguments which might be made comes from newspaper reports in the Mother A  case. A dispute arose between a pregnant woman and Waterford Regional Hospital when she refused to consent to a C-section, preferring a natural birth. The hospital argued that the woman’s pregnancy was so far along that her refusal was jeopardising the life of the unborn.The High Court had been asked to grant an order compelling the C-section, but the woman relented. In argument, Eileen Barrington SC for the hospital had argued that the relevant ‘clash of rights’ was between the woman’s right to refuse treatment and the right to life of the unborn. Assuming this case  has not been misreported, the argument suggests that the woman has constitutional rights which must be taken into account in ‘maternal-foetal conflict’ cases, even if her own life is not placed at risk by the pregnancy. We can guess that a similar set of arguments was advanced in Ms. Y’s case in the High Court, when it was sought to subject her to an unwanted C-section (apparently one of the permissible modes of responding to a woman’s request for termination of a pregnancy under the PLDPA). It might be that the ‘Mother A’ argument is heartening because it may leave room to discuss and elaborate upon others of women’s rights than the basic right to life, but it is difficult to build on this observation without further information. ( P.P. v. HSE  is of very little use on this point because, at the time the decision was made, P was already brain dead and, in the court’s view, had no remaining interests except in respect of  ‘the feelings of grief and respect’ which others associated with her body.)

If the 8th Amendment were repealed tomorrow, what effect would it have on the maternity care system? Not every case in which a woman’s preferences are overridden by the HSE is strictly an 8th case, or a maternal-foetal conflict case. We often talk about the ‘chilling effects’ which the 8th has on women’s access to abortion – doctors imagine some inchoate risk of prosecution and so do not provide legally mandated abortion services. We could argue that there is a parallel ‘chilling effect’ in terms of women’s choices around childbirth – HSE personnel imagine a constitutional duty to restrain meaningful forms of maternal choice, lest the foetus be placed at even the smallest risk. This imagined constitutional duty is, of course, a product of vernacular and not direct judicial interpretation. But even if the 8th were removed, some worrying structures would remain in Irish healthcare law, which may owe some of their origins to the 8th but are supported by other independent rationales. I will outline them briefly.

The first concerns the regulation of home births, challenged in Teehan v. HSE.  There are two main sites of regulation; a Memorandum of Understanding, or contract, between self-employed midwives and the HSE, and the Nurses and Midwives Act. The Memorandum provides that the HSE will not provide indemnity cover midwives who attend a home birth where the woman has previously had a C-section. The indemnity is a key site of control of independent midwives and women who prefer home birth, as the recent Philomena Canning case demonstrates. The Act provides in s.40 (not yet implemented) that a midwife who provides any service without insurance shall be subject to criminal penalties. In Teehan, O’Malley J. held that the HSE has extremely wide discretion in determining which maternity services to provide; as the party accepting the risk, it was for the HSE to decide which risks to insure. This is an interesting decision because O’Malley J. privileges institutional needs over individual choice without very much analysis. She dismisses the invocation of Article 8 ECHR via Ternovskycharacterising it as a decision about legal uncertainty, rather than as a more expansive decision about the mother’s entitlement to ‘a legal and institutional environment that enables her choice, except where other rights render necessary the restriction thereof. For the Court, the right to choice in matters of child delivery includes the legal certainty that the choice is lawful and not subject to sanctions, directly or indirectly’. She made no comment on s.40 of the Act because it was not yet in force – though arguably this is the kind of sanction which at least falls to be justified under Ternovsky.

The second is apparent in the negligence action in  Hamilton v. HSE.  In this case, Ms. Hamilton argued that a midwife had negligently broken her waters,  leading to a very traumatic birth by emergency C-section, with long-lasting psychological consequences.  The case, like all negligence cases, turns on judicial assessment of conflicting expert evidence. The court’s function is ‘merely to decide whether the course of treatment followed, on the evidence, complied with the careful conduct of a medical practitioner of like specialisation and skill to that professed by the defendant’, and not to determine whether best practice was followed. In part, that was why Ms. Hamilton’s action failed. However, there is an interesting section in which Ryan J. responds to the plaintiff’s contention that the midwife broke her waters without first seeking consent; whether Ms. Hamilton was assaulted. Paragraph 16 is instructive:

Mr Buckley challenged the plaintiff’s evidence that she was not told or warned about the ARM and that the midwife had simply carried out the procedure without preamble. Midwife Kelliher gave evidence that she had discussed the procedure with the plaintiff, she had with her the amnihook and had to get the plaintiff’s co-operation as to the position she was in for the procedure to be carried out. Mrs Hamilton would have seen the hook and would have known what was going to happen because of the sheet that was put under her in bed. Since, on the evidence, this was a routine procedure that Ms Kelliher was carrying out for the purpose of diagnosis to see if her fear of foetal distress was justified or not, it does seem strange that she would not have mentioned to the patient what she was going to do and have obtained her consent. The very fact that it was so routine suggests that the midwife would have done so. I am satisfied that the probability is that Midwife Kelliher obtained the plaintiff’s consent and informed her about the ARM that she was going to perform.

Given Ireland’s recent history of maternal deaths, there would be something to be said for forensic judicial attention to the extent to which labouring women’s voices are heard in maternity hospitals. AIMS’ recent research found that ‘while 67% of women [surveyed] agreed that basic consent had been sought during labour and birth, 52% of those surveyed did not receive information on potential implications to have or not have tests, procedures, treatments to assist with their decisions, and only 50% felt able to make an informed refusal during their labour and baby’s birth’. Consent requirements are an essential protection for women’s autonomy and must be taken seriously.

Both of these cases speak to a subordination of women’s autonomy to other concerns. The demands of insurance, and a reluctance to take the requirements of consent seriously, may provide a shield for defensive (some might say aggressive) maternal medicine long after the ‘de-constitutionalisation’ of pregnancy.

For further information see the Association for Improvements in Maternity Services (AIMS).

Health, Gender-Based Violence and the Right to Reparations in Ireland.

I do not accept the Deputy’s comment that the Government is neither sympathetic nor decent in respect of the work it does here. As pointed out with regard to the Magdalen laundries, Priory Hall and many other sensitive serious issues the Government has been sympathetic and decent.

Enda Kenny, May 2014.

Redress is in the news again. The long-awaited Redress for Women Resident in Certain Institutions Bill will be debated in the Dail next week. Justice for Magdalenes Research have condemned the Bill for ignoring Mr. Justice John Quirke’s recommendation that the women receive the equivalent of a HAA medical card. ((For a very clear explanation of the difference between what the government is promising and what Quirke recommended, see Maeve O’Rourke here. See here for an especially patronising response to these concerns from the Taoiseach, suggesting that the state’s primary concern is to protect women from fraudulent ‘angel healers’)) At the end of January, the first of many symphysiotomy cases comes on for hearing in the High Court. Meanwhile, the Harding Clarke redress scheme is clearly stalling badly, judging by its own progress reports. Progress on the Magdalenes redress scheme is similarly sluggish.  Neither redress scheme has drawn much praise (see here and here). But now it appears that the government is unwilling even to fulfil the limited promises it made to victims.

In 2011, UNCAT said that the state must “ensure that all victims [of the Magdalene Laundries] obtain redress and have an enforceable right to compensation, including the means for as full rehabilitation as possible.” Last summer, the UNHRC held that the state must “provide the survivors of symphysiotomy with an effective remedy for the damage sustained, including fair and adequate compensation and rehabilitation, on an individualized basis.” How do we understand the state’s current lacklustre responses to these obligations?

We already know that the state’s agents are willing to install, and vigorously police, essentially arbitrary distinctions between classes of citizen who have a claim to financial reparation for historical injury. A recent example is the State Claims Agency’s high-handed disregard for Louise O’Keeffe and another 135 adults who were sexually abused in primary schools before 1991. Others are written into the terms of reference of the inquiry into the mother and baby homes, which exclude both the Magdalene laundries, and private illegal adoptions from investigation. The state’s treatment of these issues is at an early stage. Indeed, it is not yet clear whether the mother and baby homes investigation will lead to a programme of redress, financial or otherwise. But the experiences of women who have applied to the state for redress gives us a sense of what awaits these groups in the future.

There has been almost no academic examination of the operation of established Irish redress mechanisms, or of the suite of practices which are already being used to minimise the redress paid to survivors of historical abuse. Such studies are badly needed. However, at the moment, we can clearly see that the state is undermining access to redress for both the Magdalene women and survivors of symphysiotomy and is using parallel techniques to do so.

Improper reliance on records which are untrustworthy or difficult to access:  Women who have applied to the Magdalenes redress scheme have reported difficulties in establishing their length of stay. The size of a woman’s redress payment under the scheme is based on how long she was in a laundry. The relevant records are held by the religious orders. In 58% of cases, according to the McAleese report itself, the date of exit was not recorded. In other cases, women’s own testimony as to their length of stay is contradicted by the religious orders’ records, often by a matter of some years. In such cases, the government says that it will explore records held by other departments. So far, it is not clear whether a woman’s own word – for instance in a sworn affadavit – will do. Some women will be required to submit to an interview – which presents clear difficulties for those who cannot travel, who still live the religious orders who ran the Magdalene Laundry where they were first incarcerated, or who otherwise lack capacity. If a woman disagrees with the provisional assessment of her length of stay, she is expected to request that her claim be reassessed by ‘an officer of a higher grade’ within the Restorative Justice Implementation Unit at the Department of Justice, whose decision can then be appealed to the Ombudsman. The state makes a minimal contribution to her legal fees.

The symphysiotomy redress scheme is, at least, overseen by a judge but both schemes are driven by bureaucratic, paper-based assessment. So, the same issues arise in relation to symphysiotomy. In order to apply for a payment of 100,000 euro under the symphysiotomy redress scheme, women must show that they suffered various injuries as a result of the procedure, and that the injuries continued for more than 3 years after the symphysiotomy was performed.  To demonstrate that temporal and causal link, the women must be able to provide records which date from the time of the symphysiotomy, including GP records. The Minister for Health believes that the women’s symphysiotomy-related disabilities are evident from looking at them, but that is not the sort of test the scheme applies.

“A current medical report based upon a subjective history of events as you tell them to a doctor is unlikely to be sufficient evidence to satisfy the requirements of 1B of the Scheme. Objective evidence showing medical investigations or treatment over the years attributable to the surgical symphysiotomy will be required.”

Many women did not approach a doctor for years because of the traumatic effects of the surgery. Others did not obtain, at the time, appropriate treatment or referrals which would indicate the types of injury which qualify for redress under the scheme. Some women’s GPs have since died, and they are being asked to trace records from other specialists, hospitals and pharmacists. In order to apply for any redress payment at all, of course, women must be able to identify the hospital where they underwent the procedure, and the date when it was performed. This is another hurdle. In December, a cache of unpublished records relating to the performance of symphysiotomy in three major maternity hospitals was released, but women are still experiencing difficulties in obtaining their individual files.

The state is, of course, aware of these problems. In a recent progress report, those administering the Symphysiotomy Payments Scheme admit that most of the 568 applications received by the scheme closing date were not accompanied by the required records. It is inevitable that, like the Magdalenes scheme, this scheme will need to alter its expectations if the very large number of outstanding applications can be properly processed.

In sum, both redress schemes require ill, elderly, and in some cases very vulnerable women to navigate inadequate systems of record keeping, and the burden of proof is firmly on them.

Closing off other avenues to recompense: Both the Magdalene and symphysiotomy redress schemes require the women to waive any future legal claims against the state (and in the case of symphysiotomy against a raft of other private parties). State-funded hospitals are, of course, defending symphysiotomy claims with astonishing energy, leading to unnecessary delays in cases’ coming on for hearing, and perhaps discouraging women who  would otherwise insist on their right to access the courts.  Justice for Magdalenes Research has argued that the waivers are on shaky ground now, because they were signed on the understanding that the state would make very particular provision for the women. If the state’s position has now substantially changed, the women may have claims in legitimate expectation, or may be able to revive other substantive legal claims by setting the waiver aside. Members of Survivors of Symphysiotomy are bringing a batch of civil claims to court in the coming year (though, as I have written before, the redress scheme is designed to back them into a corner and persuade them to give the claims up).

Inadequate investigation of wrong-doing: We have been over this point – about the inadequacy  of the McAleese and Walsh reports – many times before. Neither report was designed to establish liability, both reports ignored available routes to survivor testimony, and advocacy groups have repeatedly expressed disquiet about the ways in which both reports have downplayed the seriousness of the harms which women suffered. Justice for Magdalenes Research have been working on an alternative study which contradicts key findings of the McAleese report, while Survivors of Symphysiotomy look to the courts, and possibly other fora to produce better individualised narratives of the ‘truth’ of the practice. Women have also given important testimony to (largely foreign) media outlets such as the GuardianAl Jazeera and the BBC. The investigations left the state with too much room for manoeuvre, because they do not attribute real responsibility to anyone. Both redress schemes are ex gratia, and this leaves payments especially vulnerable to ‘claw-back’. The State can present itself as ‘looking after the women’ rather than as obliged to atone, and to compel others to atone, in concrete terms, for specific wrong-doing. It can present itself as ‘facing up to the past‘ when its systems of redress often serve to compound the harm women have already survived.

Hostile administration of the schemes: All of the above points to the establishment of schemes which are essentially hostile to women’s claims. But there is more. I have already written about the state’s use of unreasonable time limits to manage would-be applicants to the symphysiotomy redress scheme, by putting both them and their legal advisors under pressure. (The Minister for Health says that these time limits were put in place to help the women to come to a resolution quickly…) It has also repeatedly deployed Patient Focus – a HSE-funded group which has a very poor relationship with the majority of survivors of symphysiotomy – to make statements downplaying women’s valid criticisms of the scheme. Many women will require professional and familial support to engage with either scheme. In that context, some will be vulnerable to exploitation. Justice for Magdalenes Research have also noted that the forthcoming Bill does not make proper provision for women who still live with the laundry orders, and whose decision-making capacity is in question, to have proper advocacy support. These tweets from last week’s Justice for Magdalenes Research press conference speak to women’s sense of disappointment and exclusion. I imagine many members of Survivors of Symphysiotomy would identify with them.

PP v HSE: Practicability, Dignity and the Best Interests of the Unborn Child.

The High Court handed down judgment in PP v. HSE today.  The Irish Times provides a useful summary here.  P., who was 15 weeks pregnant, died on December 3rd, but her body  was subjected to medical processes to ‘facilitate the continuation of maternal organ supportive measures in an attempt to attain foetal viability’ for several more weeks.  We call the experimental treatment her body received ‘somatic care’. ‘Somatic care’ seems a benign phrase, but it involved a tremendous amount of intervention designed to postpone the inevitable collapse and decay of P.’s other organs following the cessation of blood flow to her brain, thereby sustaining the pregnancy. Medical evidence given in court made clear that the eventual effects of these interventions on her appearance, and the consequent distress to her family, undermined her dignity in death. Nevertheless, doctors in both hospitals where she was treated apparently believed that the law required them to follow this unusual course of action, given that the foetus still had a heartbeat. By the time the case came to court, P.’s body was deteriorating rapidly. There was no real prospect that, even if treatment were continued, the pregnancy could be maintained until viability. Her family and partner wanted the somatic treatment discontinued, and her father applied to the court for this purpose. This morning, the  High Court exercised its inherent jurisdiction and authorised P.’s doctors to discontinue treatment, at their discretion.

The judgment is, to my mind, a very strange one. I happened to be in Dublin when the case was being heard, and watched both days of the hearing. While it seemed clear to me that the court would grant the order, I did not anticipate the reasoning. This is not a conservative or cautious judgment.  It seems to me to go further than was necessary to resolve the precise dispute before the court and, as such, it is likely to have significance for future cases. This is the first reported medical law case in which a court has used the Eighth Amendment outside of the direct abortion context. The court was invited by the plaintiff to hold, following Roche v. Roche and Baby O, that this case, since it is not about abortion, has nothing to do with the Eighth Amendment. But it insisted that the Eighth also creates an independent right to life of the unborn which applies to other cases.  In addition, the court invents a new concept of the ‘best interests’ of the unborn child out of thin air. It is hard to predict what might happen to this concept in future cases.


Although the outcome was the one P.’s family sought, P. herself has precious little impact on the court’s reasoning. Talk of ‘vessels’ is not too wide of the mark.

  • First, the only major legal interest which she has, following her death, is dignity. Although her counsel had painted a more detailed (if shallow and problematic) picture of her interests as a mother, partner, and mother-to-be, these did not form part of the court’s reasoning to any great extent. Her dignity seems to be understood primarily in terms of ‘the feelings of grief and respect’ which others associate with her body. Her autonomy is briefly mentioned in the judgment but not discussed. There were opportunities to provide a fuller discussion of P.’s position, but they were not taken.
  • Second,  her interests are subordinated to the rights of the foetus under the Eighth Amendment: the court says so explicitly at p. 23. P.’s interests are ‘not discounted’, but they do not count for much. So, for instance, we do not see any analysis of whether it was disproportionate to subject her body to such massive intervention in order to preserve the pregnancy. Discussion of the limits of the obligation to preserve foetal life is located entirely in the foetus’ prospects for survival, with the woman’s dignity as an aside.
  • Third, the court’s concept of her dignity is confined to the process of her death and the condition of her body after death. The court discusses whether being subjected to somatic treatment harms her interests. It does not discuss whether being kept in this condition and pregnant – being kept in this condition in order to preserve the life of another – is such a harm. This is so even though the court acknowledges that there is no evidence that P. would have acceded to being treated in this way if she had been able to be consulted. When P.’s pregnancy does appear in the judgment it is either before her death, when she was happily planning the birth of her third child with no sense of the catastrophe that awaited her, or after her death when her sole function is to provide an unstable ‘uterine environment’, or ‘life support’ system which is not up to the task of upholding the unborn’s interests. The foetus’ clear dependence on the mother is eliminated – her sustaining environment is simply taken for granted. Dignity in death, and pregnancy are kept curiously separate in the analysis – any opportunity for a more feminist reading of maternal-foetal conflict is lost. ((Counsel appointed to represent P.’s interests would have had the court adopt a worse version of this fallacy – he argued that by the time the case came to court, P. had lost any dignity that remained to her, so that her only remaining interest was in the continuance of the pregnancy.))

As we have said, the court is primarily concerned in this judgment with the right to life of the unborn. The judgment focuses on the obligation under the Eighth Amendment to defend that right in as far as it is ‘practicable’ to do so.  The court interprets ‘practicable’ in line with the principles on withdrawing life support in In re a Ward of Court. The state has an interest in preserving life but it need not be prolonged at all costs. The mechanism of ‘practicability’ is the Eighth’s safety catch. This judgment  applies the Eighth to a non-abortion context but appears to reassure us that the Eighth works, that it cannot push us too far, that it contains within it some grain of humanity. However, this is a case at the very edge of practicability. The medical evidence did not establish that the foetus had any chance of being born alive. The somatic care was futile. Accordingly there was no constitutional reason to prolong the ‘life support’ of the unborn. Whether medical treatment can be considered impracticable where it is not entirely futile is another question. Again, ‘practicability’ is not ‘proportionality’: it is conceivable that the test might require deeply invasive treatment. ((Before the judgment, many of us thought In re a Ward would be cited in respect of P’s right to die with dignity. Because the court holds that P. is already dead, In re a Ward is invoked as an authority governing the withdrawal of medical treatment  -the somatic care of P. – from the unborn. Yet again, P.’s interests melt into those of the unborn. When the court cites Denham J.’s judgment in In re a Ward about ‘caring for the dying, loving and cherishing them and freeing them from suffering’ it is talking about the foetus and not about P. ))

The court could have stopped there. However, it felt compelled to flesh out ‘practicability’ by reference to the best interests of the foetus. Ultimately the order is made on the grounds that is not in the unborn’s best interests to prolong its life. The court reasons by reference to S.R.; a 2012 wardship case about withdrawing ventilation in the best interests of a six year old  who had suffered a catastrophic brain injury as a toddler. In Baby O, the Supreme Court rejected the notion that the right to life of the unborn encompassed a right to be born safely, or a right of access to medical treatment to ensure the child, once born survives infancy. The unborn can make no future claims on the state (at least not when, as in O, it is carried by a foreigner liable to deportation). This judgment suggests that, within the womb, the unborn can make extensive claims on the state to sustain the bare life of the pregnant woman in its ‘best interests’.  The innovation here is brisk and without supporting authority, but allows the court to shore up its conclusions with worrying rhetoric. Under the influence of the best interests test, the foetus at 18 weeks becomes capable of suffering ‘distress’ (p.19). It is caught in the dangerous environment of P.’s womb, facing a ‘perfect storm’. The court summarises: ‘The unfortunate unborn has suffered the dreadful fate of being present in the womb of a mother who has died, and in which the environment is neither safe nor stable, and is failing at an alarming rate’. Again, the court refuses to see these beings’ interests as intertwined. It accounts for each separately. P.’s womb is not her pointlessly mutilated body, but a dying incubator. That her dignity and the unborn’s best interests point in the same direction is coincidence.

It is worth noting that the concept of the unborn child’s best interests is, to say the least, a very unusual one. In England and Wales, for example, a court cannot exercise its inherent jurisdiction in respect of an unborn child in utero, though it may sometimes make orders to take effect in the event of its birth. The language of the best interests of the unborn is most often associated, in law, with anti-abortion campaigners who argue for the application of the Convention of the Rights of the Child to the foetus. On the one hand, it seems sensible to read it as an offshoot of the Eighth which would not survive repeal. On the other, it may point to possibilities for re-creating unborn rights out of other ill-fitting constitutional materials.

In short, this may not be the Costello judgment in X, but it is scarcely evidence of progress.

Future cases.

 Some commentators have been keen to suggest that P.P. is an exception, of little possible relevance to later cases. I disagree.  P.P.may be a guide to the interpretation of the Eighth Amendment in future cases, including abortion cases, if they come to court. P.P. lies at the outer limits of the Eighth, but it gestures to the principles which should govern cases of other kinds. (Of course, we must bear in mind that abortion cases are rare. Women do not willingly put themselves through them, but seek terminations elsewhere instead. Pregnancies miscarry before cases can be heard.)

The notions of futility and best interests might be relevant in a future ‘termination for medical reasons case’. The court was clear that its judgment was not influenced by the fact that the foetus if born might be ‘impaired to any greater or lesser degree’, and it frames the case as being about ‘withdrawal of medical treatment’ rather than abortion (a neat distinction which again elides the physical interdependence of pregnant woman and foetus). Nevertheless, following the argument from practicability, a future court might accept, by analogy with P.P. that an abortion is permissible under Irish law in circumstances in which there is little prospect of a foetus surviving to full gestation. Famously in D v. Ireland the state argued that this was a permissible interpretation of the Eighth Amendment. It may also be that P.P. could be used to argue for access to abortion where foetal anomalies do not lead to death in utero, but a baby dies soon after. Otherwise we are dealing with the incoherent proposition that the foetus which will almost certainly die in utero has best interests before birth, but the foetus which will probably die immediately after birth does not.

This judgment might also be used to less liberal ends. It is worth noting that, in this case, there was no disagreement between the numerous medical expert witnesses. This is not a judgment about controlling medical practice. It is a judgment about deference to ‘highly experienced medical practitioners’, about removal of a legal obstacle to the exercise of medical judgement. This is a problem because the judgment seems to shore up Irish approaches to maternal care and abortion which are of dubious validity from a human rights perspective. For example, it seems entirely possible that if P.P.’s pregnancy had been more advanced, and if medical care had made it possible to provide a more stable ‘uterine environment’ for the unborn child, then the court would not have acceded to a family’s request requiring somatic care to be withdrawn. Indeed one of the doctors treating Ms. P testified that he had maintained a woman for 2.5 weeks in similar circumstances – the woman’s body was unable to sustain the pregnancy and attempts to deliver the baby early by C-section failed.

We also need to think very carefully about how the interpretation of ‘practicability as foetal best interests’ might interact with the doctors’ duty to ‘preserve unborn human life as far as practicable’ under the Protection of Life During Pregnancy Act 2013.  The Guidelines to that Act already direct doctors to consider that very early delivery may be required instead  of abortion where the foetus is viable. Might an idea of ‘best interests’ like that in P.P. give weight to efforts to prolong pregnancies to the point when a foetus has the best chance of surviving birth? Remember that it has been reported that doctors planned to prolong Ms. Y’s pregnancy to 30 weeks. If ‘practicability’ under the 8th is primarily about the chances of enabling live birth, even at grave cost to the woman’s body, we are in dangerous territory for human rights.

Medicine and the law.

It is worth saying something, briefly, about how this case came to court. Doctors in court  repeatedly asserted that they and their colleagues felt bound by law to pursue a course of action which subjected a woman to treatment which they recognised as not only extraordinary but grotesque. Organisations such as the I.F.P.A. will test and sometimes outright defy the law, but leading doctors tell us again and again that they will follow it to the last gruesome letter. In the absence of any research on how the Eighth has infiltrated Irish medical practice, I can only guess at how it is that such people come to feel bound by the cruellest possible interpretation of an ambiguous and rarely litigated law.  But some of the blame must lie with government. There is no good reason for criminalising doctors who are required, sometimes, to bring ‘unborn life’ to an end.  There is no good reason for the absence of settled guidelines on circumstances of this kind.  Listening to the medical evidence, it struck me that P.’s father might not have had to bring the case to court if she had collapsed in one of the major maternity hospitals, where medics are more confident about the requirements of the Eighth. The expert witness from the public voluntary hospital where P. was first treated was less confident. He described futile efforts to obtain legal advice from their own in-house team or from the HSE, and conjured up the spectacle of doctors reading the Eighth Amendment for themselves. Eventually P.’s family were directed to seek their own legal advice. This cannot be good enough. We are stuck now with a government which will neither repeal the Eighth nor administer it. We are stuck with the impossible.

After the 8th. #repealthe8th

#AbortionPillTrain Film from Whackala on Vimeo.

Tomorrow, Clare Daly’s Bill to Repeal the Eighth Amendment will be debated in the Dail. A rally to support the Bill will begin outside the Dail at 7pm. Daly’s Bill is interesting because it proposes replacing the 8th Amendment with a new provision which would provide explicit protection for the constitutional right of bodily integrity. Bodily integrity is, of course, a limited negative right. It is a right of non-interference. Arguably, the constitution would also benefit from the inclusion of a positive right to self-determination, particularly in matters of medical treatment. We could think much harder about how we have failed to vindicate that right in the years since it was enumerated in Ryan v. Attorney General. But, as it stands, the Bill still makes an impressive rhetorical move in a context in which abortion is inevitably ‘constitutionalised’ to some degree. It takes a provision which was has repeatedly been interpreted – by courts, Attorneys General, doctors and public servants – to mean that women’s constitutional rights must be subordinated to the right of the foetus to be born, and replaces it with an explicit commitment to the bodily integrity of born persons.

Clare Daly’s Bill is politically useful because it gestures towards a new approach to the rights of pregnant persons in Ireland. With the 8th gone – whether that is in 2 years or 10 – the entire legal landscape changes. It is not only that it becomes possible to regulate abortion and maternity care differently, but that the primary legal justification for draconian abortion legislation – in particular for criminal legislation – falls away. This distinction – between what is possible and what is required – is very important. It means that the state will now be required – as a matter of constitutional, European and international law – to justify the architecture of interference, coercion and containment which has built up around the abortion issue for decades. The government would need to show that every legal interference with women’s rights to life, health, bodily integrity, conscience and freedom from inhuman and degrading treatment (i) fulfilled some legitimate public aim and (ii) was proportionate to the achievement of that aim. Proportionality is the new watchword here. Unflinching uncaring absolutism is no longer permissible. The burden of proof shifts from women to the state and it shifts hard. If the state wants to recreate some form of protection for ‘unborn life’ it has no constitutional excuse for doing so.

What should new abortion legislation look like after the 8th? Note that I say ‘should’, not ‘could’. If it were up to me, Ireland would adopt legislation something like that of Victoria.  In Victoria, the abortion legislation simply provides that ‘a doctor may perform an abortion on a woman who is not more than 24 weeks pregnant’. After 24 weeks, ‘a doctor may perform an abortion on a woman who is more than 24 weeks pregnant if he or she reasonably believes that the abortion is appropriate in all the circumstances.’ ‘Circumstances’ there includes ‘all relevant medical circumstances, and … the woman’s current and future physical, psychological and social circumstances.’ If I had my way, Irish women could continue to use ‘the abortion pill’ as they do already, but they could get the pills easily, on prescription from their pharmacist, at an accessible price, with access to compassionate medical advice if they needed it and with no taint of legally-grounded stigma. We would not only remove the unworkable criminal prohibition on self-induced abortions – a prohibition which the DPP will not enforce – but we would allow women to deal with their own medical needs safely in their own homes.

I think a law like that is possible in Ireland after the 8th Amendment, and I would devote a great deal of time and energy to arguing for it if I thought it had any hope of attracting political support. But I know it doesn’t, at least in the current party political system. I accept that political distrust of women’s decision-making runs deep. I accept that, in Ireland as in so many other countries, we assume that it is for women to bear the burdens of pregnancy even when these become dark and terrible, and that we think that a woman should only be relieved of those burdens if she really truly deserves it. I know that the Irish approach to abortion law will be a law of prohibition with some exceptions, until we find new kinds of people to make the laws.

In this context, we fall back on legal duty – on the established watchword ‘proportionality’. Proportionality is guaranteed a starring role in post-8th litigation – whether in a post-referendum challenge to the PLDPA2013, in an Article 26 reference of new abortion legislation to the Supreme Court, or in some other forum.  In Attorney General v. X Walsh J. used the word ‘mercy’. ‘Proportionality’ provides women with a little more breathing space than that. It says to the state: ‘watch where you’re standing, not too hard, don’t destroy her’. Proportionality tells the state that in selecting  its exceptions it cannot ride roughshod over women’s rights. And it tells the state that once it has selected its exceptions and it implements its policy of ensuring that only the deserving can access an abortion, those women able to meet the test must be supported in accessing the healthcare they need. That access cannot be neglected or indirectly undermined or outright thwarted, whether in the direct context of accessing abortion,  in the workings of appeals panels, in the provision of public health services or in any of the other myriad sets of norms, practices and regulations into which the 8th has sunk its teeth. If you have a legal right to access an abortion, you must be enabled to access it.

On this reading, we need to ask new questions of Irish abortion law. In the wake of the Ms. Y case, there seemed to be some emerging public agreement that Ireland should pass abortion law to meet the minimum standards required by international human rights law i.e. the law should make some provision for abortion in cases of rape, incest, fatal foetal abnormality and risk to the life or serious risk to the health of the pregnant person. (The Labour Party has been at this position since its Wrynn Report of 2003). But a proportionality analysis requires more than picking the grounds. It requires us to think carefully about how the grounds would be framed in law and about how they would be put into practice. We need to pay attention to:

  • Stigmatising threshold tests for access to abortion: Decriminalisation is important and removing criminal sanctions would open up a range of possibilities for access to abortion. But the official grounds for access to abortion will matter. In a context in which abortion is decriminalised, there is a real danger that law’s stigmatising functions will shift elsewhere. If a ‘rape ground’ is included in a new Irish abortion law, access to abortion must not be made conditional on reporting the rape to the police or other offers of the criminal justice system. It must not be made conditional on some special medical examination. Disclosing the rape must be enough.  If some extra threshold test is required, it is because the law does not trust women and we think that their dishonesty can be exposed by the right experts.  Neither can the law distinguish between grades of sexual assault entitling women to an abortion. Similarly – and this was a debate which dogged the PLDPA – it cannot impose additional burdens on women who are mentally rather than physically ill. To do so is to play, again, into representations of women as deceitful and dangerous. It may be that, if we cannot guarantee that these grounds will be drafted or administered appropriately, it would be better not to have them at all and to make abortion available under more general ‘universally applicable’ health grounds instead. Women cannot be expected to go to court to contest discriminatory administration of the abortion legislation. It must be ‘stigma-proofed’ to begin with.
  • Beyond risk to life: It should be clear by now, following the death of Savita Halappanavar, that the existing ‘risk to life’ ground for access to abortion has been defined too narrowly.  A ‘health ground’ is necessary to cover cases in which. although the woman’s health is clearly very poor and the pregnancy worsens her condition, it cannot be said that her life is yet at risk.  Even with a health ground in situ, the law must avoid reproducing the risk of conservative interpretation in another place. This is a very real risk – even if doctors would no longer run the risk of criminalisation for ‘getting it wrong’. Any health ground should not be drawn so tightly that it is inaccessible to all but those whose life is ‘almost but not quite’ in danger, while other very ill women are left to travel even though their health is clearly compromised by the pregnancy, or their condition interacts with their social and economic circumstances in harmful ways.
  • Live birth: There will, inevitably, be demands for the law to impose a threshold or thresholds – whether time-based or otherwise – after which it will be  impossible to access an abortion. Rigorous scrutiny of existing medical practice is required at this juncture, even though these sorts of provisions will affect only a tiny minority of cases.
    • First, we must consider how the thresholds are defined. ‘Viability’ sounds good,  but what does delivering a baby at 24 weeks’ pregnancy look like?  ‘Fatal’ foetal anomaly has often been used to describe one of the key sorts of context in which abortion is necessary and permissible in the late second trimester or afterwards, but it is a similarly slippery term. We should be cautious about writing a provision into law which ensures that some women who would currently be advised to travel to Liverpool Women’s Hospital  for a termination can receive treatment at home, while others are left in the lurch.
    • Second, we must consider what happens to woman where these thresholds are not met – as for instance where a woman’s pregnancy is considered viable but the pregnancy poses a risk to her life. What does it mean to say that doctors would have an obligation to ‘preserve’ the life of a ‘viable’ foetus in this context? Consider Ms. Y’s case. Might a woman be detained and required to submit to medical treatment designed to prolong her pregnancy until it were safer for a baby to be born? Might she be subjected to an unwanted induction or C-section?  Can these interventions be considered a proportionate interference with her constitutional and other rights? Given how little reported case law we have to direct doctors or judges in the context, what sorts of statutory protection can we expect? How might protection for the foetus in this context bleed into other areas of medical care?
  • Medical power:  We need to think about what it is like for a woman to assert her right to an abortion against a conservative or reluctant doctor, or a hospital ethics board. Not all of those who will be involved in administering any new abortion laws are pro-choice….to put it mildly, and the PLDPA made no efforts to engage with this issue, much less regulate it. In designing, for instance, conscientious objection provisions, or statutory provisions determining whether a woman’s access to an abortion should be ‘certified’ or ‘authorised’ by a doctor, or in scrutinising potential conservative proposals designed to delay or inhibit abortion access, we need to think  very carefully about how power circulates in medical decision-making contexts. There are three kinds of questions here:
    • How can women be supported to make informed decisions, and to assert their wishes, in difficult medical contexts? How can law alleviate likely sources of coercion, undue influence and distress?
    • How can the state ensure that necessary medical services are made available, even if a large number of doctors are in practice unwilling to provide them? To what extent will we ultimately be relying on private clinics to establish bases here?
    • How does Irish medical practice around ‘preserving unborn life’ compare to practice in other jurisdictions? How does it impact upon maternal and abortion care? What do medical experts in jurisdictions which have adopted human rights compliant abortion law think of our approach?
  • Those who must travel: We must be cautious about proposals for law reform which do little more than take a few dozen women off the plane to England. If the ‘grounds’ for abortion are drawn narrowly, or administered narrowly in ways which undermine women’s rights or reproduce existing fear and stigma, then travel will remain a necessity (and the existing constitutional protections for it must remain in force). The majority of women make their abortion decision very early in pregnancy – if it were not for the many costs associated with travel, we could expect that most Irish women would terminate their pregnancies before 12 weeks. We know that the requirement to travel has profound discriminatory effects, particularly for impoverished women or women living in direct provision. To my mind the danger of expulsion of women through conservative interpretation of any new abortion law is the strongest argument for a legalised period of abortion ‘without grounds’, accessible where the woman requests it, and where it is clear that she is giving informed consent to the procedure. This sort of arrangement is the law in Germany, Hungary,  and in Spain and Portugal – countries with a Catholic heritage whose laws recognise the sanctity of unborn life. Perhaps the best hope – if we insist on running the risk of ‘window dressing’ legislation which changes very little – is that the efforts of campaigners in Northern Ireland will mean that soon, our women won’t have to travel too far. As a first step, the Information Act should be repealed, to enable pregnancy counsellors  and campaigners to do their utmost to assist women in this position.

Proportionality is a difficult measure of legal protection. The key question is: ‘Proportionate to what?’ The legal idea here is that the state is restricting individuals’ agency in order to achieve some broader public goal. Proportionality can only do its work if public goals are defined reasonably. My worry is that, even at this point in Ireland’s recurring abortion debates, the goals of any abortion law have not been fully articulated. Bear in mind that in international fora this state has insisted, for decades now, that the current constitutional settlement reflects the nation’s ‘nuanced’ consensus on the legal protection of unborn life. In the domestic context, political actors hold up the patronising spectre of the conservative rural constituent who is incapable of critical thought (and whose worries just happen to overlap with those of the disproportionately powerful Iona Institute and, on a bad day, Youth Defence).  It may be that, in the abortion debates to come, this stunted incarnation of the public interest will remain in place, and remain the legal measure of women’s rights. In the context of the marriage equality referendum debates, we have seen strong state investment in efforts to transform popular perceptions of gay couples’ proper legal position. Whichever government finds itself in the position of legislating for the 8th, its duty is to lead in articulating new norms of honour, autonomy and support where pregnant women are concerned, or (more accurately) in giving those existing Irish norms space in public discourse.

What's (Still) Wrong with the Symphysiotomy Redress Scheme.

The closing date for applications to the symphysiotomy redress scheme is this Friday.  Assessment has already begun, some redress offers – a very small fraction of the total projected value of the scheme – have already been made and a very small number of those have been accepted. I have written before about the core problem which has dogged this scheme since it was first proposed – it is simply incompatible, in principle, with the requirements of international human rights law. In particular, these women have not been offered any adequate remedy for breaches of their European Convention rights by the Irish state. O’Keeffe v. Ireland confirms that ex gratia redress without an acknowledgement of state liability cannot be considered an adequate remedy. ((See also Romanov v. RussiaYeter v. Turkey))

Since the scheme was announced, less than a month ago, it has been roundly criticised by expert commentators including, most recently, Sir Nigel Rodley of the UNHRC. The devil is in the detail of the implementation. The time limit for application is unconscionable. Women had 20 working days to apply. This is the shortest time limit in the history of any state redress scheme: for example, the Residential Institutions Redress Board time limit was 3 years. The rudimentary progress reports published on the scheme website indicate that 70 women only received their application forms in the first week, because they requested them by telephone. The forms are, of course, available to download from the website, but the survivors of symphysiotomy are often very elderly and may not be computer literate.

Applications made after the deadline may be considered in ‘exceptional circumstances’, but in any case will not be considered if they are made after January 15 2015. ‘Exceptional circumstances’ is not defined within the terms of the scheme. It is worth noting that the same phrase affected the RIRB, and was interpreted in a very conservative fashion, to the particular detriment of applicants who took longer to apply  because they were socially isolated, had intellectual or psychiatric difficulties, or lived abroad. ((See AG v. RIRB [2012] IEHC 492 )) It is beyond doubt that some women who deserve, in principle, to have access to state redress will go without it because the government refuses to give them more time. 70 women have joined Survivors of Symphysiotomy since the UNHRC hearings in July and there may be others.  Two women recently brought a High Court challenge to the scheme because it was not clear that women with dementia could have a representative apply on their behalf.

The Department of Health said yesterday that 257 applications have already been made to the scheme. The progress reports give some indication of what is going on. It is not clear that the scheme can be considered a success. Certainly it is working very quickly. For example, in Week 1, 10 applications were made and 7 of these were assessed and offers made. Everything is moving so quickly, not only because the volume of applications was very low in the beginning, but because assessment is done entirely on paper and payments are not individualised. The sole question for the assessor is whether to put an applicant in one payment band or another, or none at all. There is no hearing, and no finding of liability. Some applications have been rejected, and there is no appeal from the assessor’s decision.

The fact that so many women have made an initial application  does not demonstrate that they are happy with this scheme or that they accept that it offers a better compensation package than they might obtain in court. On November 16, the majority of members of Survivors of Symphysiotomy (S.O.S.) voted overwhelmingly – not for the first time – to reject it. They have no obligation to accept any offer made under the scheme – they may yet withdraw.

The progress reports indicate that ‘a large number’ of the applications already received are awaiting  medical records from hospitals or the preparation of specialist medical reports. This sort of problem was to be expected. Some women, for example, do not have their records because hospitals had levied unaffordable charges to provide them, or had said they were unable to locate them. Access to particular records will make the difference between the minimum award of 50,000 euro and the higher award. Better consultation with Survivors of Symphysiotomy would have made this clear and the scheme could have been designed accordingly. There are about 400 survivors of symphysiotomy known to S.O.S. The women who have not yet made an application may be experiencing related difficulties. How many have the necessary support to travel for medical and legal appointments, gather hospital documentation and so on? It will be very interesting to hear about women’s experiences of compiling and submitting their applications.

The government insisted that most women would already have the necessary documentation available because they have been preparing to sue the relevant hospitals and the state. From the progress reports published, it is clear that this belief was mistaken.  The government envisaged a redress scheme which would be frankly parasitic on the very litigation it purports to protect women from.  Indeed the scheme allows the state to ‘buy’ the results of preparatory work for litigation by providing that solicitors who have already undertaken it will receive some fees and expenses. In a similar vein, the application form also asks applicants to submit copies of all legal pleadings and orders connected with their symphysiotomy.

The 20 day time limit, as the IHREC has noted, makes it very difficult for women to seek independent legal advice before submitting their application, especially if they are starting from scratch. A further 20 day time limit applies once an offer is made under the scheme.  A woman must sign a waiver to accept the offer, in which she agrees to discontinue any legal actions against the state or any of a raft of private parties, and agrees not to pursue any such claims in the future. The waiver is a waiver of constitutional and Convention rights. ((It also, of course, cements the state’s refusal to ensure the possibility of prompt, independent and thorough investigation into the wrong done to these women, by closing off the possibility of private litigation. This was not done in the Magdalene compensation scheme. The waiver is the functional equivalent of an amnesty law, and we know that laws of this kind can be held inconsistent with the duty under the ICCPR to ‘exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities’; see eg Case of Barrios Altos v. Peru. Judgment of March 14, 2001 ))  As such it is crucial that the woman waives voluntarily and with full understanding of the consequences. The pressurised time limit at play here should, accordingly, be a source of some concern. The initial 20 day time limit is crucial too. If a woman had three years in which to apply to the scheme, she might at least have more time to judge the progress of her civil claim and to weigh the associated risks and benefits against the possibilities of a redress payment. As things stand, the scheme is designed to deny her the opportunity for reasoned comparison. The requirement of acceptance within 20 days, similarly, is designed to kill litigation off at the earliest possible opportunity.

The State is the defendant in many of the upcoming High Court symphysiotomy actions. The first two will be heard early next year. So, when the State says that it is offering this scheme to spare women the burden of litigation, it is doing no more than claiming to protect these women from itself. Noreen Burns died last July while attempting to pursue her claim against Holles Street hospital, having been informed in terms reminiscent of the treatment of the late Brigid McCole, that the hospital would pursue her for costs. The ‘robust’ conduct of the defences in symphysiotomy cases has, so far, done the defendants little credit.

For now, the scheme trundles on. But this is not what proper redress looks like.

Law, disobedience and 'the abortion pill'. #abortionpilltrain

Earlier this week, a small number of women and men re-staged the ‘Contraceptive Train’ of 1971 as an ‘Abortion Pill Train’. A group organised by ROSA, Re(al)-Productive Health, Action for Choice and the Socialist Party travelled to Belfast, where they collected pills ordered from Women on Web and delivered to friends’ addresses in the North.  On return to Connolly Station in Dublin, 10 women took the pills in public, to demonstrate their safety, and explained their actions to the assembled crowd. The video above is by Paula Geraghty, there are some great photographs of the train journey here and video of the protest here. In going to the North, the train mimics a trip frequently undertaken by Irish women. Women on Web do not supply the pills directly to Ireland because the state has become so good at confiscating them. In order to obtain them, you must be able to provide an address in another jurisdiction, typically Northern Ireland, and arrange for them to be collected. No attempt was made to arrest those who travelled on the train, or to seize the pills, and there was no anti-abortion counter-protest.

The Guardian erroneously reported that the train collective had bought their pills from the Marie Stopes clinic, but they are not readily available for purchase in Northern Ireland. As Alliance for Choice remind us, women using them in Northern Ireland do so under the cloud of potential prosecution. Readers may remember that in March 2013 Alliance for Choice highlighted this position by publishing an open letter in which 100 women and men testified that they had used pills to induce an abortion themselves, or had helped someone else to do so.

The pills the train imported are used for early medical abortions. Their use is not a new phenomenon in Ireland. For further details on how they work, see here, here,  here and here.  Buying them is, of course, much cheaper than travelling abroad for a later abortion (though arranging to collect them from a Northern Irish address is not easy for everyone). This matters deeply when we consider how families are affected by the politics of austerity. But the pills are also more accessible precisely because they can be used in most cases without intensive medical supervision, in private. Regulatory regimes for their use vary significantly from jurisdiction to jurisdiction. However, in the UK, BPAS has been campaigning for some time for amendments to the existing abortion legislation to allow women to take them in their own homes rather than travelling repeatedly to a clinic. The majority of women who use pills procured from Women on Web are able to use them safely (see, for example, this story from The Examiner). The earlier they are used, the safer and more effective they are. However, complications are possible in rare cases even when they are used properly (leaving aside the issue of purchase from unscrupulous providers and use of inappropriate drugs). For example a very small minority of women – about 1% – may experience heavy bleeding requiring medical attention. The Ray D’Arcy show on Today FM recently broadcast a letter from a woman who had experienced two weeks of severe bleeding after inducing a miscarriage using misoprostol purchased in a pharmacy. ((Misoprostol is available from pharmacies in Ireland as a medicine for symptoms of rheumatoid arthritis. It is also used in Irish hospitals in the medical management of miscarriage. It can be used to terminate a pregnancy on its own but it is safer to use it with mifepristone, or RU 486. Mifepristone is a steroid which can be used to induce labour after foetal death in utero. Since 2003, special recording obligations  apply to its supply and administration in Ireland, and it is not available in ordinary pharmacies. )) Cases like this one do not demonstrate that the current criminal prohibition on use of the pills is justified. Neither do they show that an intensive regime of scrutiny and surveillance must be established before their use could be legalised in Ireland. Rather they demonstrate the importance of making medical assistance accessible to women in those cases where it becomes necessary. They also show up, yet again, the stress, denial of information, inhibition of access to medical treatment and outright emotional isolation which a regime of criminalisation imposes on women in need of abortions. As Mary Favier of Doctors for Choice has said, stigma means that women often delay visits to the doctor even where an abortion has resulted in complications. To accuse the abortion pill train protestors of ‘dangerous’ behaviour in taking the pills ignores the state-supported structures of stigma and neglect which amplify the very small risks inherent in taking these pills properly.

The abortion pill train is a collection of small illegal or quasi-legal acts which individual Irish women commit on a  regular basis. The protest not only breaks several of the abortion laws, but shows up the spaces in which they are already broken: in which they are porous, not enforced, practically or politically unenforceable, or just about surmountable if you have the resources, the courage, the knowledge and the time.

  • Taking the pills: A woman who is not pregnant and consumes an abortifacient in Ireland commits no offence under the PLDPA 2013.  A pregnant woman successfully using the same pills to successfully terminate her pregnancy might be guilty of the offence of ‘intentional destruction of unborn human life’ under s. 22 of the Act. The heft of this new offence is  difficult to gauge. There is no doubt but that women using Women on Web’s services in Ireland may understand themselves to be staring down the barrel of 14 years in prison. In theory, an individual supplying these pills to a woman for the purposes of ending her pregnancy, or being reckless as to whether she might use them for that purpose, might also come within the scope of inchoate offences (attempt etc) under s.22.  There are significant evidentiary difficulties inherent in applying these sorts of offences to early medical abortion. A prosecution can only be brought at the instance of the DPP, who will not prosecute unless there is sufficient evidence to justify it, and if a prosecution is in the broader public interest.  In the face of suggestions from within his own party that the criminal penalty for this offence be reduced to 5 years, the Minister for Health in debating the Bill suggested that the maximum 14 year prison sentence provided for under the Act was intended for the ‘back street operator who was a recidivist carrying out dangerous procedures on vulnerable persons’ – we might speculate as to whether a woman performing an early medical abortion herself would ever receive such a sentence. That said, cases like those of Ms Y and Ms X demonstrate the risks of a certain kind of zeal in enforcing the letter of the law – we can imagine a woman being prosecuted for using pills for an early medical abortion, or being caught up in another’s prosecution. And that imaginary has its own effects.
  • Importing the pills: Both misoprostol and mifepristone are controlled drugs under the Medical Products Regulations 2003. Pills sent in the post are routinely seized on importation by the HPRA and Revenue and Customs – as noted already this programme of seizures has been effective enough to convince Women on Web to effectively cease direct supply to Ireland. The Revenue’s enforcement officers are empowered under the Customs Consolidation Act and the Irish Medicines Board Act 1995 to detain and ultimately seize and destroy them, just as they are empowered to seize medicines found on your person or in baggage at a border. A prosecution is unlikely to result from seizure of a single package. Bulk importation is another problem. In January 2011, Fang Huang was convicted in the District Court of importing mifepristone from China and supplying it to women from a Parnell St Supermarket. Very little information is available about the prosecution. She was fined €5,000 –  €500 for each of 10 charges. The Irish Medicines Board initiated the prosecution.
  • Advertising Women on Web/informing women on how to use the pills: In theory, speaking about, or advertising, or putting up stickers about Women on Web, or carrying a banner with their web address contravenes the Regulation of Information Act 1995. Offenders are liable to pay a fine of up to IR£1500.  Advertisement and public speaking are not the same as one-to-one counselling, which is much more tightly controlled by s. 5 of the Act. A  sticker or notice advertising Women on Web in a public place clearly breaches s.4 of the Act: in the terms of the legislation, this is acceptable because the passerby has not voluntarily sought the information out. Where the information is given at a public meeting, or in a television broadcast, the law is less clear. Under s.3 of the Act, it is permissible to provide ‘Act information’ in these contexts if two conditions are satisfied. First, the information must relate ‘only to services which are lawfully available in [a particular] place and to persons who, in providing them, are acting lawfully in that place’. The language of the Act pre-dates transnational online services like Women on Web or Women Help Women, which rely on co-operative networks of agents in several jurisdictions. It is difficult to tell how it applies – in what ‘place’ is the service ‘available’ if the pills are ordered online in Ireland, under the remote guidance of a doctor in Austria via a website hosted somewhere else, supplied from India and finally consumed in Ireland with the guidance of a telephone counsellor in the Netherlands? In 2010, Women on Web, responding to a challenge from the Irish government, obtained a ruling that remote supervision of abortion was not illegal in Austria. The second provision is more problematic in the context of the abortion pill train – the information cannot be accompanied by advocacy or promotion of termination of pregnancy. As always, invoking the Act in any kind of public speech context only serves to highlight the impossibility of enforcing it while maintaining the possibility of informed debate about abortion service provision. Again, we have to wonder whether the DPP could find that the public interest is served by prosecuting activists in this sort of case.

Naturally, there are political risks inherent in choosing law-breaking as a method of protest. In pursuing this kind of disobedience, the protest dares the state to act, or highlights the effects of its inaction. (Ruth Coppinger’s action as a TD -the only woman of three TDs who travelled- in taking the train and publicly taking the pill is particularly interesting in this respect.) There is the danger of drawing official attention to the methods which women and networks of activists such as Women on Web use to cope with the prevailing legal regime, of misleading women into thinking that the law is more easily circumvented than is actually the case, or of provoking conservative disapproval and backlash.

There is also still a sense of the scandalous in law-breaking. Some activists expressed discomfort with the choice of date for the protest – the train returned home a few hours before the vigils held to remember the death of Savita Halappanavar in October 2012. My own view is that there must be a place for both vigils and civil disobedience in abortion protest, particularly when we consider the ways in which the Irish law and politics of abortion have manipulated the deaths and suffering of ‘deserving’ women in order to silence ‘improper’ voices. But then, I write that with the comfort of distance.

It is only a little bit surprising to see sharp distinctions drawn between the contraceptive train and the abortion pill train. The action undertaken by 47 women from the IWLM seems comparatively uncontroversial now because the purchase of contraceptives was not illegal in Northern Ireland in 1971,  the IWLM never went as far as to demand abortion access, and in the end (though this was not revealed at the time) those who travelled bought aspirin instead of the contraceptive pill because they did not have prescriptions. Crucially, the train seems so far in the past, and the rightness of the action so obvious in hindsight that it has lost any controversial political bite. Even David Quinn can invoke the condom train now. Perhaps that is why we so readily remember the train, and forget, for example, Women on Waves’ visit to Dublin, or the Sister Ship (just to name transport-themed reproductive rights protests…). The original train was less tame than this public chooses to remember.  It was decades before access to contraception was fully liberalised in Ireland. The women in 1971 knew there would be a moment of confrontation with customs officers when they returned to Connolly, they worried about the possibility of arrest, and they had prepared tactics – including outright mockery of the customs officers – to adopt if they were challenged. June Levine in her memoir Sisters documents that each woman had been issued with a leaflet prepared in advance by Nell McCafferty and Mary Anderson – every woman was to be issued with a pill. They were to  declare their pill to the customs officers and then swallow it. It is instructive to remember that the contraceptive train in 1971 also sparked divisions with the Irish Women’s Liberation Movement. Nuala Fennell, more interested in institutional reform than in protest,  thought it was one in a series of counterproductive stunts ((June Levine, Sisters; Diarmuid Ferriter, Ambiguous Republic)) Mairin de Burca stayed at home to organise the welcome party, because she felt that it would be off-putting for rural women to see single women involved in importing contraceptives. Other single women travelled. ((Ann Stopper, Monday’s at Gaj’s; Mary Kenny, Something of Myself and Others)) On the train on the return journey to Dublin, June Levine writes, a common sentiment was; “Our mothers will kill us!”. ((June Levine, Sisters.)) The women chanted that the law was obsolete, but they also had to negotiate the costs of proving it, and they marched out into Connolly station to the tune of ‘We Shall Overcome’. Perhaps some day, we will see the abortion pill train invoked as the acceptable historical opposite of some new radical act of ‘attention-seeking’.

Sparing Enda's blushes. Speaking of I.M.E.L.D.A. and #knickersforchoice

Speaking of I.M.E.L.D.A. is a direct action performance and protest group based in London, established to raise awareness of the Irish and Northern Irish abortion laws, which effectively require women to travel to England to terminate pregnancies in almost all circumstances. I.M.E.L.D.A. is an acronym, which stands for ‘Ireland Making England the Legal Destination for Abortion’. The name Imelda has an older origin. ‘Imelda’ was the code word for abortion used by the Irish Women’s Abortion Support Group (IWASG), which helped women travelling from Ireland to access abortion in England. A code word was needed to protect women in the 1980s who might be telephoning to make arrangements (at a time when access to abortion information was heavily censored) on a shared line. The members of Speaking of Imelda usually wear red for performances. This is another gesture to to the IWASG, who might tell a woman travelling from Ireland by ferry and by train to look out at Paddington Station for the woman in the red skirt who would look after her for the night.

In the last six months or so, the Imeldas have adapted this image of practical care, secrecy and private solidarity for public protest. Some of the performers were members of the IWASG. Some are connected to the Spanish pro-choice organisation ‘My Belly Is Mine‘. Most are Irish women more recently settled in London. They have staged a variety of provocative actions. At the St. Patrick’s Day parade in London, women in red wheeling ‘solitary suitcases that scream one night only’, wove their way through the crowd of spectators, asking directions to the abortion clinic. In August, when the story of Miss Y broke, they stood on the steps of the Irish embassy to recite a ‘secular rosary’ of the names of Irish women subjected to gender-based violence by the Irish state.

Their most recent campaign is #knickersforchoice. During the holidays, the Imeldas appeared, in red headscarves and sunglasses, to polish up the brass and granite of the Irish embassy building with their underwear They have since asked supporters to take photos of knickers emblazoned with pro-choice slogans hanging in public places and tweet them with the hashtag #knickersforchoice. At the March for Choice in Dublin, they appeared in costume at the margins of the crowd, pints of Guinness in hand, with a banner asking for ‘choice in Ireland’ sewn out of bright red knickers. In the evening, they hosted a station where attendees could make their own #knickersforchoice.

On October 3rd, the Imeldas arrive at the Crown Moran Hotel in Cricklewood, but not all of them are in red. While some distribute informational knickers outside the hotel, two are undercover in dark dresses. They need to make it inside, to where the Taoiseach is the guest of honour at a Fine Gael dinner with Irish emigrants based in London whose views on abortion are of no interest to the government   donors paying 1200 euro a table. They are successful. They welcome him to England. As they chant reminders of the ’12 women a day’ who travel from Ireland to England for abortion, he reaches for a steadying glass of wine. A pair of knickers asking him to repeal the 8th Amendment is served to him at his table (one of his companions quickly covers it with a napkin to spare the Taoiseach’s gaze). Within less than a minute, they are steered out of the hall by security, setting off a rape alarm, still chanting “Solidarity to our Sisters in Ireland!”

Why is this sort of activism important? Why is it more than a bit of craic? Is it just a collection of improper insults, much less important than the real business of law reform? In In Spite of Plato, Adriana Cavarero retells Plato’s story of the Greek philosopher Thales and a young, attractive maidservant from Thrace. The philosopher was walking along, contemplating the stars,  performing the great and important work of truth-seeking, distracted, when he fell into a well. The foreign slave girl laughed at him, because he had been so busy with what he thought of as grand conceptual matters that he has become awkward and clumsy around the real and the practical. She laughed because ‘she fully belonged to the world of life’, as a slave and as a woman. She belonged to ‘the services and concrete rhythms of life that the patriarchal order assigns to women’. This is an oppressive space, but hers was an unrestrained, and insightful and ‘desecrating’ laughter. It drew attention to the woman’s presence even where she has no place. It redirected  focus to the facts of life, to the ways in which the lives of men and women are constrained.

The Imeldas’ mockery is important as a counterpoint to Fine Gael’s po-faced ‘statesmanship’. For the government, abortion is a matter of deep moral and political consequence for the entire populace – to be held away from the ballot box until the moment is exactly right. It is the constitutional issue of our time. It is a matter for cautious unpublished advice by the Attorney General. A referendum cannot be rushed. A proper political debate should not be allowed to excite undue passion. Reform cannot be triggered by the mere facts of any individual case, but must be preceded by careful weighing of abstract propositions. The purpose of any legislation is to keep the floodgates of choice firmly closed.

And then, in Cricklewood, the Taoiseach is ‘knickerbombed’ into embarrassment. The mockery, with its connotations of sex and scandal – dirty laundry – creates a space in which he can be reminded of troublesome reality. His dinner is, for a moment, spoiled.

I wonder did they bring him a fresh plate?

Call for Show of Solidarity – Survivors of Symphysiotomy – September 11th

Survivors of Symphysiotomy are holding a demonstration outside Government Buildings on Thursday September 11th from 11-12.30. Many members of Survivors of Symphysiotomy are going, but many others are in poor health, and cannot attend.  If you can go along, even for a short while, please do. Women are asked to carry a brightly coloured high heel, to symbolise the physical damage done to survivors by the operation.

Despite strong criticism of its approach to survivors of symphysiotomy by the UNHRC in July, (see here for further explanation) the government has not made any offer to modify its proposed redress scheme, or to meet Survivors of Symphysiotomy’s reasonable and justified demands.

  • There will be no independent public inquiry, and no admission of blame..
  • The ex gratia redress scheme still stands. There will be no individual assessment of claims, and no judicial oversight of the scheme.
  • Survivors will still be required to waive their rights of access to the courts as a condition of access to the scheme, before they know how much money they will be offered by the State Claims Agency.
  • The scheme may be modified to further infringe on survivors’ human rights and constitutional rights.  It is likely to include a new category of ’emergency symphysiotomy’, to encompass cases of ‘foetal distress’. The Walsh and Murphy reports accepted that symphysiotomies were not emergency operations. This appears to be a money-saving ploy.