Repeal or Replace?

Fiona de Londras | @fdelond

There is going to be a referendum on the 8th Amendment in 2018. That much is clear. What we don’t yet know is what proposition will be put to the people. In part, this is because the Citizens Assembly recommended that Article 40.3.3 “should be replaced with a constitutional provision that explicitly authorises the Oireachtas to legislate to address termination of pregnancy, any rights of the unborn and any rights of the pregnant woman”. In doing this, it is very clear that the Assembly was concerned to ensure that the Oireachtas would have the power to introduce wide-ranging abortion law reform should it wish to do so; this is evident from the legislative recommendations it then went on to make. Whether the Assembly meant that the Oireachtas should be given an express power to legislate, or whether it meant that the Oireachtas should have the power to create law that would be immune from constitutional challenge is unclear: I discussed this here. What is clear, though, is that the Assembly wanted there to be no dispute about the power of the Parliament to make law for abortion. Why, then, did it recommend repeal rather than replace? Continue reading “Repeal or Replace?”

Repeal or Replace?

An Abortion Law Immune from Constitutional Review?

Fiona de Londras @fdelond

In yesterday’s hearing of the Committee on the 8th Amendment to the Constitution talk turned to the idea that a new constitutional provision might be crafted and introduced which would provide that any law on abortion would be immune from constitutional challenge. In his presentation to the Committee, David Kenny made it clear that this was what he took the Citizens’ Assembly to have meant by its recommendation. In my evidence I posited a different interpretation, namely “as a proposal designed to make explicit the power to legislate for abortion to the extent recommended in the legislative proposals made by the Assembly”. On reflection, either understanding is probably sustainable. Reading the transcripts of the Assembly again, I still consider that the concern with ensuring the Oireachtas had “exclusive” competence to make law for abortion was intended to ensure absolute clarity about the power to legislate for the issue, but it could also be interpreted as saying that in doing so the Oireachtas should be empowered to make a law that would be immune from constitutional review. If the latter interpretation were pursued, would this be desirable and what would be the implications? Continue reading “An Abortion Law Immune from Constitutional Review?”

An Abortion Law Immune from Constitutional Review?

Ireland’s violation of International Abortion rights: A perpetual Déjà vu.

We are pleased to welcome this guest post from Aisling McMahon and Brid Ni Ghrainne.

Abortion is only permitted in Ireland when the life of the mother is in danger, making the Irish abortion framework one of the most restrictive in the world. This week, the Committee Against Torture questioned Ireland about its lack of progress in reforming Irish abortion law[1] and stated that it must explain its human rights obligations to the Irish public before any referendum on abortion.[2] This comes as little surprise as the Irish framework has previously been criticised extensively by four other international human rights committees.[3] The Human Rights Committee has twice found – in Mellet v Ireland[4] and Whelan v Ireland[5] – that Ireland violated Art 7 (right against torture, inhumane or degrading treatment), Art 17 (right to privacy) and Art 26 (right to non-discrimination) of the International Covenant on Civil and Political Rights (ICCPR) for not providing access to abortions to women whose pregnancies suffered fatal foetal abnormalities. The Committee on the Elimination of Discrimination against Women, the Committee on Economic, Social and Cultural Rights, and the Committee on the Rights of the Child have also urged Ireland to change its restrictive abortion framework.

However, no changes have yet occurred. Instead, in response to the decision in Mellet v Ireland the then-Taoiseach Enda Kenny dismissed the Human Rights Committees’ views as not being ‘binding’ and ‘not like the European court’.[6] This exemplifies the confusion that exists regarding Ireland’s international law obligations relating to access to abortion. In response to these recent developments, this post considers: (1) why Ireland should adhere to the views of the respective Committees, and (2) how Ireland can bring its laws into conformity with international law. Continue reading “Ireland’s violation of International Abortion rights: A perpetual Déjà vu.”

Ireland’s violation of International Abortion rights: A perpetual Déjà vu.

The Citizens Assembly Proposals: A Draft Bill

Lawyers for Choice has produced a draft bill that gives effect to the Citizens’ Assembly’s recommendations for abortion law reform. The purpose of the Bill is to codify the Assembly’s proposals, and to show how simply and easily that can be done. The provisions reflect the choices of the Assembly members’ and not those of Lawyers for Choice.

Regrettably, the Assembly’s deliberations on legislation were confined to grounds for accessing abortion only. Experience worldwide shows that, even where grounds are well-drafted, abortion can be difficult to access. The Oireachtas must pay attention to barriers to access such as obstructions outside of clinics, the circulation of misleading information on abortion, underfunding of services, and conscientious objection. Any final legislation must make provision for these matters.

In addition, we regret that the Assembly was unable to consider the decriminalisation of abortion, which is clearly required by international human rights law. Continue reading “The Citizens Assembly Proposals: A Draft Bill”

The Citizens Assembly Proposals: A Draft Bill

Barriers to first trimester abortion care.

We are pleased to welcome this guest post from Dr. Deirdre Duffy from the Liverpool-Ireland Abortion Corridor Project.

As the Citizens’ Assembly turn to the ‘when’ of abortion access, many are highlighting that allowing first trimester abortion in specific cases is highly problematic. The question of access and first trimester care is complex so it is worth summarising the key problems with first trimester focused access.

Barriers to access

A central problem in the timely administration and delivery of high quality care is the existence of ‘barriers to access’. These barriers can be structural, organisational, social, or personal and are usually a combination of a number of factors which prevent those who need care from getting it. By ‘getting’ here it is vital to recognise that patients are not passive – care is a dynamic process of requesting/approaching and being given care.

Importantly for Ireland, barriers to access are not just imposed from above but are embedded in cultures of care. So removing a barrier is more complex than simply funding an abortion clinic (for example) or making abortion legal as while the clinic may exist it may not have trained staff or have staff willing to perform abortions.  

Access and abortion care

In addition to questions about availability of trained professionals, financing of facilities, and proximity, abortion care has to factor in further barriers relating to abortion stigma and attitudes to abortion and women seeking abortion. As a result of abortion stigma, women may not approach care facilities for fear of repercussions. This barrier can be compounded by underlying norms and social factors both within and beyond caring institutions. If, say, a religious organisation which opposes abortion in all circumstances is placed in control of a hospital, a significant barrier to abortion care will inevitably result.

Abortion care access also needs to recognise the ‘timings’ of care-seeking and care-giving. Women may not know they are pregnant until well into the first trimester. Furthermore, health problems (foetal and maternal) become more apparent as pregnancy progresses. Acute care needs may only be detected in the second trimester or later and even then access may be limited by a lack of geographically proximate facilities.

What does this mean for a first trimester focused law?

The key problem with a first trimester law in Ireland is that barriers to first trimester abortion care are not impacted by liberalisation of abortion under 12 weeks gestation. Doran and Nancarrow’s systematic review (http://jfprhc.bmj.com/content/41/3/170.short; paywall) on barriers and facilitators for abortion care in countries where abortion is legal and the Guttmacher Institute’s regular reviews of barriers to care in the United States highlight core barriers which may not be impacted by this sort of change. These are divided into patient and provider perspectives in the table below.

Women’s perspectives Provider perspectives
Lack of proximate services Moral opposition
Lack of appointments/waiting lists Lack of training
Negative attitudes of staff Too few physicians
Associated costs of abortion Staff harassment
Insufficient hospital resources

Synthesis of barriers to first trimester abortion care – from Doran and Nancarrow (2015)

What would this mean in practice?

If a first trimester liberalisation is instituted then the front-line of sexual and reproductive and maternity care in Ireland will need to be closely explored. As research I have already been involved in highlighted (see here: https://mcrmetropolis.uk/blog/what-happens-when-women-have-to-travel-abortion-care-and-lessons-from-ireland/) communication between services in Ireland is not consistent. There are also significant issues relating to the cultures in hospitals – particularly if the Sisters of Charity are to be given ownership of the National Maternity Hospital, the key destination for acute maternal and foetal medicine – which will not be addressed by a legislative change.  

 

Barriers to first trimester abortion care.

Why would any country put abortion in the Constitution?

by Mairead Enright. (@maireadenright)

In Ireland, the abortion debate is often conducted by reference to Britain. Conservatives associate the Abortion Act 1967 with the bogeyman of  ‘abortion on demand’. In the struggle to ‘be different from Britain’, we perhaps miss some of our commonalities with other countries which have taken a similar route to regulating abortion. Ireland is unusual in ‘writing abortion into the Constitution’, but it is not alone. It is very difficult to generalise across jurisdictions, especially because Constitutions perform different functions in different jurisdictions, and are subject to different procedures for amendment. However, a quick survey suggests that Ireland has only about 20 fellow travellers; a few in Europe (such as Hungary and the Czech Republic), more in South America, where the trend began (Chile, Honduras, Ecuador, El Salvador) and the rest in Africa (Swaziland, Somalia, Uganda, Kenya, Zambia, Zimbabwe etc). I am not sure if this is an exhaustive list, and would be grateful for corrections and references. Constitutional abortion provisions take a variety of different forms. Some date to the 1980’s while others are very new.

  • The most common is a broad assertion that the right to life begins at conception or before birth: Czech Republic, Slovak Republic, Hungary, Dominican Republic, Ecuador, El Salvador, Guatemala, and Paraguay. Madagascar has a similar ‘right to health’ provision.
  • Statements of the unborn’s right to life: Chile and statements of the unborn’s right to be treated legally as a born person: Honduras, Peru. Interestingly, like the 8th Amendment, these also date from the late 1970’s/early 1980’s.
  • Provisions which equate the right to life of the unborn with that of the mother: Only Ireland and the Philippines have done this.
  • Provisions which set out the grounds for access to abortion: Somalia, Swaziland and Kenya.
  • Provisions deferring to the legislature, stating that abortion is illegal except as provided by legislation: Uganda, Zambia and Zimbabwe. Kenya and Swaziland have a similar provision, in addition to stating current specific grounds.

What have the results been?

A constitutional abortion provision is generally a mark of restrictive abortion laws. As shorthand, if you use the Center for Reproductive Rights well-known map of abortion laws, you will find most of these countries in the ‘red’ zone with Ireland; officially prohibiting abortion or allowing only life-saving abortions. These regimes are incompatible with women’s human rights to freedom from inhuman and degrading treatment, health, autonomy and so on. A few of our fellow-travellers are in the ‘yellow zone’, permitting access on grounds of physical and sometimes mental health and foetal impairment. Whatever the law says on paper, practical access to abortion is often poor, even for those women entitled to it in principle.

However, not all of these countries have such restrictive abortion laws. Hungary and the Slovak and Czech Republics have more liberal abortion laws than Ireland, at least on paper. A general statement of the obligation to protect unborn life does not in itself translate into either criminalisation, or restrictive grounds for abortion. The Constitutional Court of the Slovak Republic held in 2007 that a 12 week period of abortion on request was compatible with the constitutional provision on unborn life. Despite the Constitution’s foetal life provision, it was possible for the Slovak court to come to a similar position to that taken by constitutional courts elsewhere in Europe. Ireland’s Supreme Court has not be able to draw similar conclusions because the Supreme Court in X  held that the mother’s right to survival and the foetus’ right to be born are equal.

That said,  foetal life provisions are malleable, as are all constitutional rights. They operate in their particular context. Similar constitutional provisions are invoked to support regressive abortion policy in Hungary,and criminalisation of women in Ecuador. They can also ground extremely restrictive judgments by superior courts, as happened, for example, when an attempt to decriminalise abortion in the Dominican Republic was struck down, and when the Chilean constitutional tribunal blocked government efforts to distribute the morning after pill. Famously in El Salvador in 2013, the Supreme Court denied a seriously ill woman a termination even though her foetus could not survive birth.

The African provisions might catch the eye of those lobbying for ‘replacement’ rather than repeal. Some of these are indeed liberalising amendments by comparison with what preceded them. However, they are vulnerable to political intransigence. In Kenya, for example, lack of guidelines interpreting the constitutional provision has left doctors unwilling to provide legal abortion services. A case is forthcoming in the High Court. In Swaziland, although women’s groups welcomed the constitutional reform, no steps have been taken to legislate for abortion. Inconsistent interpretation of the abortion law has also been a problem in Uganda. As we know in Ireland, while abortion is in the constitution, legislators can (perhaps paradoxically) shirk their responsibility to legislate for it.

How does abortion end up in the Constitution?

It is impossible to answer that fascinating question fully for all of these very different countries, in all their complexity, in a single blog post.  In Ireland, constitutional abortion law has been a place to work through and make statements about national identity; abortion is the place where religious, post-conflict and post-colonial tensions meet. In 1983, PLAC capitalised on a period of political instability to place a near-permanent block in the way of women’s reproductive rights. It is an old adage that these tensions are worked out over women’s bodies, often with the assistance of powerful foreign lobbies.

Sometimes the identitarian nature of other countries’ law seems to appear on on the face of it. Somalia’s abortion provision, for example, explicitly references the shari’a. In other cases, we have to look to the context in which the provision was inserted into the Constitution.

Older constitutional abortion laws are associated with regimes which place a premium on national identity, whether as part of a process of self-definition after a prolonged period of violence, or as part of an ideology of ‘national security’ associated with military authoritarianism. Honduras’ provision is in a constitution passed in a period of instability after 10 years of military rule. One of the oldest constitutional abortion laws is Chile’s; passed by referendum in 1980 under Pinochet’s dictatorship. It is also interesting to note that many of the African countries mentioned, like Ireland, inherited their abortion law from the British in 1861. Abortion is tied up in postcolonialism, for them as for us.

Often the presence of an abortion provision reflects a religious backlash against what is perceived as unduly permissive abortion law. Zambia’s Constitution, for example, permits the government to legislate for abortion, and abortion is legal on narrow grounds. A new Zambian Constitution passed last year but a proposed constitutional provision – inserting a foetal right to life – has been deferred, pending the achievement of consensus. The new foetal life provision was intended to reflect the ‘Christian values’ underpinning the new Constitution. In Kenya, church leaders demanded a ‘no vote’ to the 2010 Constitution on the basis of its abortion provisions, even though they did not change the content of the pre-existing abortion law at all. Similar pressures succeeded in El Salvador, where in 1999 the Catholic church was a significant force in securing a foetal life amendment to the Constitution against feminist opposition. The involvement of the institutional Catholic church in repressing abortion reform is a theme across Latin America, where hostility to abortion has proved compatible with Leftist as well as with conservative government.

Conclusion

There is surprisingly little comparative work on constitutional abortion provisions. Ireland, however, would do well to pay attention to constitutional abortion provisions as a legal strategy; to ask what they have been used to do elsewhere; and to pass future laws which express, not a faith in Irish exceptionalism, but an awareness of the 8th Amendment’s global resonances. We tend to associate constitutional law with certainty and technicality, but a quick review of the history of constitutional abortion provisions suggests different associations; with stalled law-making, human rights abuse, and sacrifice of women’s interests in the pursuit of shared values.

Why would any country put abortion in the Constitution?

Reflections on the Citizen’s Assembly (3): The Presentation of Dr. Joan McCarthy

We are pleased to welcome this guest post from Donnchadh O’Conaill, of the Department of Philosophy, History, Culture and Art Studies at the University of Helsinki. This is the third of a series of posts Donnchadh is writing on presentations of ethicists to the Citizens Assembly; the first can be found here, and the second here

While debates over the status of the foetus are central to ethical and philosophical discussions of abortion, the freedom of women to choose to have abortions is crucial to political debates on this subject. Dr. Joan McCarthy presented a defence of this freedom, taking as her starting point “the body and the life of the woman or girl who is pregnant”, considered as a moral agent, i.e., as making ethical choices in concrete situations.[1] In assessing the choices such women face, McCarthy draws on two principles: autonomy and justice. Continue reading “Reflections on the Citizen’s Assembly (3): The Presentation of Dr. Joan McCarthy”

Reflections on the Citizen’s Assembly (3): The Presentation of Dr. Joan McCarthy

Reflections on the Citizens Assembly (2): The Presentation of Bobbie Farsides

We are pleased to welcome this guest post from Donnchadh O’Conaill, of the Department of Philosophy, History, Culture and Art Studies at the University of Helsinki. This is the second of a series of posts Donnchadh is writing on presentations of ethicists to the Citizens Assembly; the first can be found here.

Debates about abortion can often be traced back to disagreements about the status of the foetus, e.g., whether it is a being with any independent moral significance. All parties to this disagreement share two assumptions: that ethical debates over abortion are primarily a matter of the moral importance of the foetus, and that the nature of the foetus is what determines its moral status. Hence many opponents of abortion will appeal to the fact that the foetus is a human being, e.g. it has a soul or has the potential to become a rational being; many proponents of liberal abortion laws will counter that the foetus, at least early in its development, lacks certain capacities which are crucial to having moral status.[1] The arguments here are often complex and involve subtle points of metaphysics which are not easy to resolve. More generally, regardless of what one thinks about these issues, it might seem that such esoteric matters are not appropriate as a basis for legislation.

In her submission to the Citizen’s Assembly, Prof. Bobbie Farsides outlines an alternative approach: a way of justifying a pro-choice regime which seeks to avoid disputes about the nature or moral status of the foetus.[2] Continue reading “Reflections on the Citizens Assembly (2): The Presentation of Bobbie Farsides”

Reflections on the Citizens Assembly (2): The Presentation of Bobbie Farsides

Reflections on the Citizens Assembly (1): The presentation of Dr Helen Watt

We are pleased to welcome this guest post from Donnchadh O’Conaill, of the Department of Philosophy, History, Culture and Art Studies at the University of Helsinki. This is the first of a series of posts Donnchadh is writing on presentations of ethicists to the Citizens Assembly.

Regardless of what one thinks about the need for a Citizen’s Assembly, its deliberations have already thrown up a number of interesting approaches to thinking about ethical issues, particularly concerning abortion. What follows is a series of articles on the presentations by ethicists to the assembly, examining the arguments that they offer and their potential implications for a possible referendum to repeal the 8th Amendment.

Dr. Helen Watt presented an argument against abortion which was of interest, particularly in the context of Irish debates about abortion, in not relying (at least not explicitly) on religious doctrine. Indeed, Watt’s arguments rest on certain assumptions which are difficult or impossible to reconcile with the beliefs of many religions, for instance the belief in an immortal soul. But as with more familiar religiously-motivated discussions, Watt’s argument appeals to the nature of the foetus to justify its having a certain moral status. By the ‘nature’ of the foetus I mean not just its physical or biological features but those features which might be thought to give it moral significance in and of itself, regardless of what anyone thinks about it. This kind of moral significance is what is usually meant when ethicists speak of the ‘moral status’ of the foetus. Continue reading “Reflections on the Citizens Assembly (1): The presentation of Dr Helen Watt”

Reflections on the Citizens Assembly (1): The presentation of Dr Helen Watt

Benefit Sanctions and Coercion Within the Irish Welfare System

We are pleased to welcome this guest post from Charles O’Sullivan, doctoral candidate at Maynooth University.

In recent days, the Department of Social Protection (DSP) has announced that since January 1st of this year, 4,242 jobseekers have been subjected to penalties for refusal to engage with services, refusal to take up an offer of training or education, or failure to attend meetings. These benefit sanctions can involve a recipient receiving €44 less per week, and where the failure persists after the sanction has been imposed for 21 days, social welfare payments may be withdrawn in full for a period of 9 weeks. In some instances, a complete ejection from the welfare system is possible.

This figure represents a low in comparison to the roughly 6,500 sanctions applied throughout 2014, but far in excess of the 359 issued in 2011. It must also be born in mind that sanctions can now be applied for far lower infractions, such as failure to upload a CV to a government website, demonstrating the degree of coercion now in force.

This increased emphasis on sanctions overlaps with several years of prolonged austerity within Irish society, and what is now a government focused on the continued retrenchment of public services for ideological reasons. Consequently, welfare recipients are required to overcome ever more burdensome procedural hurdles in order to access increasingly limited funds. Callan et al have previously highlighted that those under 25 years of age, single parents, and low-income families with multiple children have suffered the most with each new series of welfare reforms, and have seen their entitlements cut far more than others. The gendered dimension of these cuts must also not be overlooked, as single parents, most of whom are women, are 35% more likely to fall into poverty than other groups. From the perspective of applying sanctions, Adler notes that in the UK groups such as these, as well as the disabled, and immigrants with low levels of English comprehension will be more likely to receive them. This means that the already vulnerable are not only targeted in relation to cuts in welfare rates but also in how much they are policed. Inevitably this will lead to higher levels of deprivation among these groups.

Secondly, the DSP emphasises that any sanctions imposed are proportionate. The result is that the highest penalty of €44 will only be applied to jobseekers in receipt of the top rate of €188 per week, while those receiving, for example, a lower rate of €84.50 would see their benefit temporarily reduced to €64 per week for the prescribed period of time. However, even if one ignores that these are more likely to be imposed on the already vulnerable, that sanctions can be applied to the lowest rates of payment is particularly troublesome.

A further potential consequence is that in forcing jobseekers to stretch their resources even further while sanctioned, they may be less able to comply with the necessary conditions and that this will result in additional sanctions. Research interviews conducted in Scotland show evidence of this, as well as the potentially significant amount of time spent by welfare recipients in order to avoid sanctions which could be spent on something more productive (such as searching for employment).

Finally, the idea that these sanctions are likely to encourage higher rates of compliance and employment is highly problematic. Sanctions essentially act as a means of ejecting, either partially or wholly, the recipient from the welfare system, and make it more difficult for them to engage with the labour market. Research from the United Kingdom found that those who left the welfare system following the imposition of sanctions often do so without having obtained employment, meaning that many are simply left without state income supports. Other research has found that those who do find employment are more likely to take up low-skilled labour, attracting far lower rates of remuneration, and with less certainty as to tenure and working conditions. This also presupposes that there is a high demand for such labour, and where the supply of jobseekers exceeds the demand for them in the labour market, it emphasises that in spite of clear structural deficits it is somehow the jobseeker who is responsible for their continued unemployment. Where higher levels of support are given, even if it means a person being unemployed for longer periods, this can lead to better outcomes in terms of transitioning into employment and the kind of employment they will find.

The legal basis upon which these sanctions can be challenged is somewhat limited for individuals on whom they are imposed. The Constitution itself does not specifically provide for a right to social welfare. Article 45 does allude to the directive principle of supplying income supports and protecting the vulnerable but is not justiciable as a cause of action, and is simply a guiding principle for social policy. Minister for Social, Community and Family Affairs v Scanlon [2001] IESC 1, saw the Supreme Court find that existing rights such as the right to property in Article 43.1 may also not be invoked, as any entitlement to social welfare benefits is created through ordinary legislation alone. Nor do legal principles such as estoppel or ‘reasonable expectation’ create a presumption of entitlement as established in Galvin v Minister for Social Welfare [1997] 3 IR 240, and Wiley v Revenue Commissioner [1993] ILRM 482 respectively. Such a challenge would also be impractical for an individual of limited means regardless of how likely or unlikely it is to succeed.

The case of Hurley & Ors v Secretary of State for Work and Pensions saw the English High Court find that a limit being placed on the amount of welfare benefits an individual can receive is indirectly discriminatory where they act as the carer for a person with a disability, based on Articles 8 and 14 of the ECHR. In theory a similar challenge could be brought here, but may still face a judiciary that is deferential to the way in which the State allocates funds and which views welfare payments as a solely statutory right.

Any appeal of sanctions triggered at a national level is as such limited to the appeals mechanism set out in the Social Welfare (Consolidation) Act, 2005 and its supporting instruments, with appeals being lodged through the the Social Welfare Appeals Office, based on the procedure established in Section 318 of the 2005 Act.

It is possible that the systemic issues with sanctions could be raised under the Covenant on Economic, Social and Cultural Rights. As McLachlan recently highlighted, the results of the United Kingdom’s periodic review from the Committee on ESCR were quite unfavourable with regard to benefit sanctions and their detrimental effect on the lives of welfare recipients. During Ireland’s own review last year, this issue was not raised, but it would be possible for civil society and other social actors to raise this issue in future in the hopes of a similar outcome. This would require that the circumstances in Ireland are of a comparative standard and are clearly demonstrable. However even this would require that the State is amenable to altering the current system, as a being found to have violated rights within the Covenant would not immediately trigger the need for changes by itself. Consequently, any substantive, systematic changes require a political will that seems to be absent at present.

Benefit Sanctions and Coercion Within the Irish Welfare System