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).

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

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.

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

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.

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

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.

After the 8th. #repealthe8th

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.

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

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’.

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

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?

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

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.


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

Suicide and the Protection of Life During Pregnancy Act: Where Are We Now?

This piece is partially cross-posted from Critical Legal Thinking. Those not familiar with the facts of the case as reported by Irish Times journalist Kitty Holland can find a full account of those, and of the basic law behind this case there.

In a sense I cannot add to, or improve upon, William Wall’s elegant reflection on the case in which a young migrant to Ireland was wrongfully refused an abortion. But I can underline and re-iterate what it may mean for Irish  abortion law. As things stand, we do not know when we will discover how the state’s organs and agents reasoned to brutalising this young woman.  Doctors for Choice have asked for an independent inquiry, headed by the man who chaired the inquiry into the death of Savita Halappanavar. But we are unlikely to get one. The HSE will conduct an inquiry into this case. But it will not consider the reasons why a C-section, rather than an abortion was performed in this instance, at likely great cost to the health of this woman and the baby. Somewhere in the High Court digital recordings archive is the evidence of the legal arguments made by lawyers for the HSE, the woman and the then unborn baby at a time when it was sought to compel this woman to accept medical treatment including, apparently, Caesarean section to facilitate a birth she plainly did not want.  In particular we do not know whether the arguments accepted by the High Court when it made its hydration order were based on the woman’s own best interests, on on the the basis of some previously undisclosed right of the ‘unborn’ to be born alive. Precisely what law shadowed this woman’s experience? What were its terms? The not knowing is a form of regulation. Any worthwhile inquiry must answer these questions. We keep being told we are not ‘in full possession of the facts’ about this case – a subtle undermining of protest by those who like to frame themselves as ‘in the know’. We are not in full possession of the law. We are not in full possession of ourselves.

But even against this backdrop of grave uncertainty, we can make three key claims, which must become the subjects of government and public debate.

  1. On the facts as reported, this woman’s human rights were violated. Given the shape of our public discourse Irish people sometimes have difficulty in grasping that a woman is legally wronged by the abortion regime even if she does not die.  Under the International Convention on Civil and Political Rights, as a raped woman, she was entitled to access an abortion. But she also suffered violations under our law.  The long delay between the time at which this young woman first reported the risk to her life to the authorities and the time when she was first assessed under the Act  may be repairable, in theory, by publishing new protocols or guidelines. But the delay was a sustained breach of her rights to privacy, and to freedom from inhuman and degrading treatment. In a very real sense, her experience was very close to that of Ms. C in A, B and C v. Ireland. She was entitled to access a termination in Ireland, but no reliable accessible mechanism was available – despite the new legislation – to enable her to vindicate that entitlement.  Let us be clear. Ireland remains in breach of its obligations under the ECHR. The Government has not kept its own limited promises to address that breach. It has not published, yet, its much-vaunted Guidelines. It did not make provision for women with limited English, or for marginalised women who would find it hard to access medical help.
  2. There is a very real risk that the suicidal woman’s constitutional right to access a life-saving abortion is illusory after a certain number of weeks. It may be that the courts, and the HSE and its doctors are enforcing an interpretation of the Constitution which requires the state to ensure an opportunity for live birth by some forced intervention: by C-section, or by induced labour. Potentially, this interpretation might require the pregnancy to be sustained for a period until viability even against the mother’s firm objection. Let us be clear. The case did not consider this sort of scenario – Miss X was only 12 weeks pregnant, and so the question of what an ‘equal’ right to life at a later stage of pregnancy might entail did not arise. We have had no judicial guidance in this area. Moreover, the Act does not, contrary to HSE suggestions, provide that a woman who is constitutionally entitled to an abortion may be required to undergo a C-section to terminate the pregnancy instead. Even a cursory reading of ss.8 and 9 discloses that the Act only governs access to medical procedures which end ‘unborn life’. The Act undoubtedly allows for life-saving abortion at 24 weeks, and performing C-section is only consistent with refusal of access to abortion. It seems very likely that the Constitution, and the Act designed to implement it, are being interpreted here by petty unelected officials to require practices which are, as Ruth Fletcher has written here,   harmful for the woman, if not dangerous for the child.  What is an intensely vulnerable woman supposed to do in this situation? Demand an appeal? Resist imposition of the C-section in the High Court? The HSE are about to publish guidelines on the treatment of women whose lives are placed at physical risk by pregnancy, which reportedly express a similar inclination to attempt induction where possible, instead of allowing the woman to access an abortion. While the guidelines are intended to ensure that doctors do not allow a woman’s physical condition to deteriorate for as long as the foetus has a heartbeat – as happened in Savita Halappanavar’s case – it would be troubling if the option of dilation and evacuation were not available to women who want it , where the foetus is not viable.  This sort of interpretive work generates a hidden Constitution. We need a public explanation and justification of this sort of reasoning, so that we can decide whether law reform is required to prohibit it. We could amend the existing Act. Asking for this is not asking for ‘comments on individual cases’ or breaches of privacy. It is asking for clarity on government policy.
  3. It would be foolish ever to think that stories of what happens to women under their laws will necessarily move the Irish political classes to action. Remember that the Act does not change the law which contributed to the death of Savita Halappanavar. Remember that they are able to divorce the memory of the Magdalenes, and of symphysiotomy, from what happens in today’s maternity hospitals. I hope that all political parties now recognise that it was wrong to pass the Protection of Life During Pregnancy Act in its current form and will commit, despite their instinctive reluctance, to a referendum in the lifetime of the next government. (See Fiona de Londras here and here) #Repealthe8th is a coherent accessible demand. But we cannot solve the sorts of problems reported in this case simply by repealing the Eighth Amendment. The issues require deeper discussion, and even pro-choice lawyers will disagree about the best route to take.
    1. I favour stripping the abortion provisions from the constitution and decriminalising abortion. Irish people under 50 have never had an opportunity to vote on an abortion law which was not strangled by a constrictive interpretation of the ‘right to life’. I think that the genesis of the Amendment, and the subsequent referenda, though they met the minimum standards to effect constitutional change, were almost uniquely politically dysfunctional (see Sandra McAvoy here) to an extent that puts their legitimacy in serious question. (It was truly astonishing to see one of the architects of this constitutional provision denigrate aspects of international human rights law as ‘political’ while standing over this provision this week). Finally, I think that by removing that provision, we can at least attempt to free the law from certain difficulties of conservative constitutional interpretation – by judges but, more importantly by state agents charged with applying the law – which have dogged the Amendment since its passage.
    2.  I think that we should resist efforts to insert a new provision covering, for example, rape, incest and fatal foetal abnormality while leaving women in other situations to ‘travel’. By exceptionalising abortion – by taking the position that it is generally to be permitted only in the most gruelling of circumstances – we run the risk of creating new, if presently unforeseeable, categories of  devastating hard interpretation cases  further down the line.
    3. Any change to the text would need to be accompanied by clear-sighted discussion of what the Constitution might be read to ‘say’ about life, bodily integrity, autonomy, privacy, inhuman and degrading treatment and so on in the Eighth’s absence. Because there has been so little strategic domestic litigation of the Amendment, at least by pro-choice agents – we are very much in the dark here. It may be that, as has been suggested, a Constitutional Convention is an appropriate forum in which to discuss issues of this kind, provided it does not become a delaying tactic.
    4. Finally, whatever the text of the Constitution becomes, we must unpack and reform the legislation passed to enforce it – including the Abortion Information Act and the Protection of Life During Pregnancy Act.  We must unpack and rethink the multiple intersecting lines of policy – medical, immigration, child protection, mental health and so on – which shape women’s access to abortion. We must research, understand, unpack and challenge  the forms of ‘clinical best practice’, habitual power or well-intentioned but thoughtless routine which would subject women to degradation and distress of the kinds reported in this case and that of Savita Halappanavar. We must determine, for ourselves, the rights standards which will animate the interpretation and application of any new legislation.  Once legislation is in place, we will likely need to be prepared to litigate to defend it. In truth, nothing short of a wholesale orientation of the Irish state approach to the care and support of pregnant women will bring us to an acceptable legal position.  No blue pencil can do that work, and none of it can be rushed. Repealing the Eighth, for me, is the first of several slow steps.

For those who are interested in interrogating and reforming the law in Ireland, there are several options:

  • Lawyers, legal academics and law students  – whether based in Ireland or abroad -can join the new advocacy organisation Lawyers for Choice –
  • Come to this September event on building a coalition to Repeal the Eighth.
  • Protests are taking place in cities across Ireland today at 6pm. Speaking of Imelda, pictured above, are co-organising an event in London at the same time, outside the Irish Embassy.
  • Several important issues of reproductive justice will be considered as part of the Northern/Irish Feminist Judgments Project (  This will provide a much-needed forum for rethinking the habits of constitutional interpretation, legal argument and legal education which generate cases of this kind. You are welcome to express an interest in the project by emailing


Suicide and the Protection of Life During Pregnancy Act: Where Are We Now?

Suicide and the Protection of Life in Pregnancy Act 2013.

Update: I have added notes to this post to take account of what has been published elsewhere since the Independent report quoted below. Reporting of the case has been patchy, and sometimes confused.  See, the Sunday Independent (quoting this piece), the Sunday Times and the Examiner.

Dearbhail McDonald of the Irish Independent reported on Saturday on what she believes was the first application made under the Protection of Life in Pregnancy Act.  The article summarises the facts as follows:

The woman sought to end her pregnancy by invoking Section 9 of the 2013 Protection of Life During Pregnancy Act which permits lawful termination on suicide grounds. [New reports of the case suggest a woman sited at several punishing junctures of Irish abortion law: young, raped, suicidal, with precarious migration status. The Sunday Times reports that the woman was a ‘foreign national’, unable to travel abroad freely because of her immigration status. She discovered she was pregnant at 8 weeks (the Sunday Independent reports she discovered in the second trimester), and immediately sought a termination, apparently because she had been the victim of a traumatic rape. The Sunday Independent suggests that the woman was afraid of how family members would react to the pregnancy. It is not clear how much time passed between her first request for a termination and the consideration of her application under s.9. We do not know whether she applied for a visa to facilitate travel for a termination abroad, or whether this was refused. We know that asylum-seeking women in particular face delayed access to abortion abroad because they must seek permission to travel. Her lawyers argued in the High Court that there had been an unreasonable delay in ensuring access to the process, but it is not clear what the outcome of this argument was. If the delay was a matter of months, as the Times suggests, we are firmly back in the territory of the ECHR judgment in A, B and C v. Ireland – inordinate delay and ineffective procedures rendering the constitutional right to an abortion ineffective and inaccessible.] 

The termination was refused by an expert panel.

It was refused even though the consultant psychiatrists on the three-person panel believed that an abortion was justified on suicide grounds, notwithstanding the advanced gestation. 

It was deemed, in this tragic case, that the best course of option for maternal and foetal health was to deliver the baby.

The option of a caesarean section in lieu of a termination caused further distress to the woman who insisted she wanted a termination.

The woman then refused liquid or fluids – effectively going on hunger strike.

A care order was sought in court to safeguard the mother and baby’s welfare amid fears the mother would starve herself. [It seems, again from the Times, that this was not a care order. Orders were sought in the High Court by the HSE to allow medical treatment of the woman, including hydration. A further application was brought to require the woman to submit to a Caesarean section but no order was made because the woman had consented by then.The Times says the case returned to court for a third time after the baby’s delivery – it does not say why, but possibly this is the source of the ‘care order’ reporting.].

But she ultimately agreed to have her baby delivered by caesarean section and the baby was born at around 25 weeks before the care order could be finalised.

[The Sunday Times says that the Attorney General was notice party to the proceedings, and that the unborn was also represented by counsel. The latter, so far as I am aware, is a novel move, since this is not an Article 26 reference case. Can we expect to see this happen in the future?]

This article provides scant detail on the facts. [It is not clear how this story came into the public domain.  Last year, some details of a termination carried out at the National Maternity Hospital similarly emerged into the media. The Irish Human Rights Commission in its comments on the Bill, warned of the need to take measures to protect women’s privacy. These measures are relevant where termination is refused as well as where it is granted. We can only hope, as @OireachtasRetort observed on twitter last night, that one day women’s reproductive choices will no longer make the national headlines in Ireland.] [It is now clear from the Sunday Times that the story has emerged into the public domain through restricted reporting of two court hearings in respect of this woman –  an application for permission to administer certain medical treatment which led to granting of a hydration order, and an application for permission to perform a C-section, which became unnecessary, as the woman consented to it.]

I will confine my (very tentative) remarks to exploring, insofar as the reported facts allow, how this case connects to the existing law. Comments are very welcome.

This woman applied for a termination under s.9 of the Act. Guidelines for doctors have been drafted, but not yet officially published.  S.9 requires that ‘three medical practitioners, having examined the pregnant woman, have jointly certified in good faith that

  1. there is a real and substantial risk of loss of the woman’s life by way of suicide, and
  2.  in their reasonable opinion (being an opinion formed in good faith which has regard to the need to preserve unborn human life as far as practicable) that risk can only be averted by carrying out the medical procedure.’

This is a two stage test. It is not only a matter of  determining that the woman’s life is at risk, but that an abortion is the only reasonable means of eliminating that risk.  The Guidelines contemplate that a woman in this position would be referred to her GP, who would refer her to the local consultant psychiatrist. That psychiatrist, having agreed to certify, would have referred her to a second psychiatrist, who in turn, having agreed to certify, would have referred her to a obstetrician, who then refused to certify. We do not know from the article whether the obstetrician refused termination on one ground or the other. (Doctors for Choice have consistently raised the prospect of  an obstetrician vetoing two psychiatrists’ findings on risk to life from suicide.)  But the panel’s decision must be unanimous, or a termination under the Act cannot go ahead.  

How then, to explain the Caesarean? The Act clearly directs the panel of three to consider other measures which would preserve the life of the foetus, and to take them, where possible. Premature Caesarean delivery would appear to fall within the scope of ‘reasonable’ options under the Act. Fiona de Londras has argued that the X case provides, in circumstances where the foetus is viable but a woman’s life is at risk, as here, that the woman may have a constitutional right to have the pregnancy ended in Ireland, but no right to end the life of the foetus. (See Gerry Whyte, quoted here, disagreeing, and arguing that in the girl’s pregnancy was still in its early stages, and so the ruling simply does not give any guidance on what should be done where live birth is possible).  The constitution may require that other measures are taken to allow live birth. During the Oireachtas debates on the Bill, in which deputies raised the issue of ‘term limits’ or ‘late term abortion’, the Minister for Justice acknowledged the possibility of early delivery. It is important to note that the Draft Guidelines , in a footnote at page 29, contemplate that this ‘early delivery’ falls entirely outside the scope of the Act.  It says that:

If the unborn has reached viability, and the best course of action is deemed to be an early induction or caesarean section, this medical procedure would not fall under the Act as it is not a medical procedure during which or as a result of which an unborn human life is ended. Once delivered, the medical staff should ensure the necessary care for the neonate in accordance with clinical guidelines and best practice.

The footnote captures the legal divide on which this case turns. Abortion is an exceptional procedure and requires intensive regulation. Premature Caesarean is simply medical treatment, even if it has its origins in a request for an abortion. None of the things that happened to this woman after she was refused a termination are governed by the legislation. They are in a separate ‘fallout’ space, regulated by ‘best practice’, which may be creative and sustained by human rights, or not. [The government should be asked whether a ‘viability’ threshold is introduced into the Act by the ‘back door’. Is it the case now that a woman who is suicidal, but whose pregnancy is in the late second trimester, cannot obtain a termination in practice, but will always be offered an alternative treatment designed to secure live delivery of the foetus?  Can women on the cusp of viability be managed into this zone?]

This case raises a series of difficult questions, and the reported facts are too scant to provide deep analysis. In particular, it is difficult to tell how much time elapsed between the woman’s seeking medical treatment, the s. 9 application and the final Caesarean.  However, these facts certainly raise the issue of what should happen where a woman – as initially happened here – refuses the medical procedure presented to her as an alternative to a requested abortion. The Draft Guidelines, as published on the Guardian website, do not provide transparency about this sort of situation, and that is a problem –  for doctors, for women, and for the wider public who authorise this law.

  • The question of consent is a knotty one, and the facts are not entirely clear.  In different circumstances, it would be possible to read the Caesarean as a ‘way out’ of restrictive abortion legislation, as in last year’s Salvadoran case of Beatriz.  But here, the woman refused the Caesarean initially. The law will vary according to whether or not the pregnant woman is a minor, and whether or not she is competent to make this medical decision for herself. A woman who is suicidal is not necessarily incompetent, and the article refers to this woman’s agreement to Caesarean section. Katherine Wade recently published a very useful article on this issue in the Medical Law Review . Wade notes that, unlike in the UK, a competent pregnant woman’s ‘right to refuse treatment is not absolute in the Irish context, as it is curtailed by a competing right, namely the right to life of the unborn, which the State is mandated to defend and vindicate under the Constitution’. This is acknowledged in the National Consent PolicyHowever, as yet, we have no clarity on the ‘balance’ to be struck between women’s right to refuse medical treatment and the constitutional right to life of the unborn. A key problem is that the relevant judgments on pregnant women’s right to refuse treatment have not been published. Wade’s article discusses two cases: South Western Health Board v K and Anor (2002) and Health Service Executive v F (2010). In K, Finnegan P considered the case of a woman who was refusing medical treatment which would reduce the risk of transmission of HIV to the foetus. He advised the woman that if she refused to give birth in a hospital, he would have to make ‘much more serious orders affecting her bodily integrity’. It is not know what those orders would be, or whether they could require a woman to be confined to hospital for a period of treatment. Wade suggests that a court might be more reluctant to order a Caesarean section because of its invasive nature, which would bring strong considerations around the right to privacy, and freedom from inhuman and degrading treatment into play. In HSE v. FBirmingham J. stated that a woman who was refusing a Caesarean section could not be compelled to have it. No further details of the reasoning are available. In F, as in this case, the woman eventually agreed to Caesarean section. Softer techniques of persuasion leading to eventual consent and falling short of actual imposition of medical treatment do not raise the same legal issues, though the process of  ‘getting to consent’ may be very distressing, and may generate delays – for instance – in accessing the right to travel. (We can imagine circumstances, following P and S v. Poland, in which a long and difficult process of persuasion would engage the right to freedom from inhuman and degrading treatment under the ECHR).  It may be that a new Act is required to clarify the law on maternal care in this sort of instance. [In addition, we might ask why it is possible to put footnotes in the Draft Guidelines which effectively imply a ‘viability’ threshold at which Caesarean is offered, but apparently impossible to offer guidance on attempting to ensure women’s bodily integrity and privacy in treatment]. We don’t really know what background the 2013 Act is operating against when it favours alternatives to abortion including early delivery. [For further reading on this issue I suggest Rosamund Scott’s Rights, Duties and the Body. None of the newspapers have provided accounts of any legal arguments made in this application in respect of the right to life of the unborn, though the Sunday Times suggests the unborn had its own legal counsel. It is difficult to speculate on what those arguments might have been.][As Dr. Peadar O’Grady notes in the comments below, we should consider whether, in all probability, a woman in this situation, under a forced hydration order and deeply distressed, would have been able to refuse consent to a C-section].
  • [The circumstances of the care order mentioned here are not at all clear. It may be that the woman is a teenager, in which case a care order would be sought to allow a District Court judge, or the HSE to consent to medical treatment on her behalf (see p. 105 of the Guidelines). The unborn is not a child for the purposes of the Child Care Act. However, it may be that the foetus here was the subject of a pre-birth assessment, with a view to obtaining an interim care order upon birth.  Pre-birth assessments are done where an aspect of the parent’s lifestyle – such as drug use – poses a serious risk to the unborn, or where the parents’ children have previously been taken into care. It is not clear to me whether, as is sometimes done in England and Wales, Irish courts have exercised inherent jurisdiction to make an order before birth which for implementation once the child is born. (In England, of course, there is no concept of the ‘unborn child’ as legal subject.)  Perhaps readers can assist in the comments.] [It seems reasonably clear now that the care order was made in respect of the child once born. Several papers have reported that the baby is now doing well, in the care of the HSE. There has been no reporting of the woman’s current medical condition. The Sunday Times writes that a hydration order was granted, and a week passed before the second application for a Caesarean was sought. The grounds for  making this order are not clear. We do not know whether the woman was hydrated for a week in order to preserve the life of the unborn child, or whether hydration was deemed to be in her own best interests. If the order was made in her own best interests, then it would appear that there was an issue around her capacity to make medical decisions. The order made would be anal0gous to orders made in respect of the feeding of women with anorexia, who have lost the capacity to make decisions for themselves. See here and here. If there was no issue over her competence, then the possibility that a distressed woman refused an abortion, refusing food was forcibly hydrated for a week in order to bring a foetus to viability would raise serious questions under Articles 3 and 8 ECHR.  It is important that we learn what legal arguments were made in this case, so that we can be sure that this did not take place and could not have taken place.]
  • It seems from the report that this woman did not exercise her rights to seek a second opinion, or a review under the Act. The Irish Human Rights Commission raised questions about the extent to which the Act’s procedures are made accessible to very vulnerable women. [The Sunday Times says that this woman had limited English. The IHRC expressly raised the issue of whether the Act process was accessible to women with language and literacy difficulties].
  • Finally, it is unclear how the decisions taken in this case interact with the constitutional right to travel. S. 18(2) of the Act says that nothing therein shall operate to restrict any person from travelling abroad for an abortion which would amount to a criminal offence in Ireland. The Guidelines do not provide any further detail.  A woman might be able to obtain an abortion in the UK after 24 weeks, on limited grounds, including to save her life or to prevent grave permanent injury to her physical or mental health. In many cases, as we already know too well, the right to travel is meaningless to the wide variety of very vulnerable women unable to access it. However, it is likely that reports like this one may discourage women from making applications under the Act at all.

The State’s obligation under the Constitution is ‘as far as practicable’ to defend and vindicate the right to life of the unborn. Scenarios like the one reported in the Independent raise the question of what ‘practicability’ has come to mean. Several commentators have been recalling Sir Nigel Rodley’s ‘vessel’ comments  at the UNHRC in July. [If the reports that this woman was raped are accurate, then we are squarely within the territory of these criticisms – the UNHRC expressly noted Ireland’s failure to provide for victims of rape under its abortion law. This litigation would suggest that the public discussion of the UNHRC’s comments has had precious little effect on those charged with enforcing the 2013 Act]  It is quite clear that we do not know enough about the possible chains of events to which a vulnerable woman exposes herself if she makes an application under s.9 of the Act.  The image of a competent, very distressed woman resorting to the threat of hunger strike – the classic last ditch protest action of those interned, or denied civic voice – in an effort to assert her autonomy should give serious pause for thought.  The Irish Independent calls it ‘tragic’. ‘Tragedy’ is often a word we use to signal detachment, from exceptional and rare suffering brought about by fate – events that we can only gawp at from a distance. But this particular set of circumstances is, in an important sense, the product of a constitutional amendment which was never fit even for its proponents’ purpose, and which has been punishing women for far too long. [It is to be hoped that, as a first step, TDs will seek clarity in the Oireachtas on the Attorney General’s involvement in the case, and the government’s position on the orders sought and made in this litigation. The Sunday Times reports that the Ministers for Health and Justice were briefed on the case.]

Suicide and the Protection of Life in Pregnancy Act 2013.