Legal pathways to reproductive justice and abortion rights #repealthe8th

We are delighted to welcome this guest post from Ruth Fletcher, a senior lecturer in Medical Law at Queen Mary, University of London

Irish regulation of pregnant choices needs to be changed.   The current situation denies women legal power to opt out of pregnancy for their own reasons.  It also justifies poor legal, social and medical treatment of pregnant people in a wide variety of contexts beyond the particular issue of abortion access. Being denied legal power over key life decisions, such as whether you wish to sustain a pregnancy for 9 months, is a violation of human rights.  Denying women this legal power in the name of protecting foetal life misrepresents the value of equality since, as Ingram argued in 1992: “the right to life of the mother is to physical survival while the right of the foetus is to all the nurture it needs to develop into a fully participating member of the community.” (see ‘Home and Away’ in Smyth at p. 154)  Sustaining a pregnancy can be hard work even when it is a happy experience.  Laws which compel women to continue pregnancy against their better judgment devalue the many contributions which pregnant people have made voluntarily.

This legal order is wrong in principle.  But it has also been wrong in practice as we have seen harmful treatment of individual vulnerable women, the exclusion of abortion-seeking people from their home territory, and the demonization of those who support them.  There have always been sections of Irish society, which have protested against this situation and acted to change it.  There have even been moments when custom and the norms of medical practice anticipated abortion as a valid outcome for a pregnant person (see here for an account of St Brigit performing an abortion; and see Morriss in Schweppe on Irish medical textbooks in the early 20th century).  So I don’t think of the pathway towards reproductive justice and abortion rights as a straight, linear one from a history of mistreatment towards some future society which values and respects pregnant people (on ‘pathways’ see further Cooper).  Rather I think of our legal pathway as a meandering one; sometimes opened up and sometimes hidden from view.  The pathway to abortion rights and reproductive justice in Ireland is one which might have been carved out by Benjamin’s angel of history as she looks backwards while moving forwards, and the pile of rubble generated by ‘progress’ grows higher and higher (see further Fletcher).

This pathway has been produced by the struggle for pro-choice values and reproductive justice; goals I am proud to share (see further Ross, Roberts here and here, Fletcher and Fletcher in Schweppe).  This is a local and a global struggle against, and sometimes with, powerful interests and it is not going away anytime soon.  There is no quick legal fix.  Struggling towards those goals can be hard work as we are thwarted and demoralized as some big obstacle resists our efforts.  But we are also sustained by a history which remembers (and recovers) the important work of groups like the Anti-Amendment Campaign, the Women’s Information Network, the Students’ Unions, the Irish Women’s Abortion Support Group and a host of others in providing support for abortion-seeking people through care and campaigning activities.  I want to be loud in joining with them to say that I believe that pregnant people should be legally recognized and supported as the key decision-makers in pregnancy; full stop.  I didn’t always believe this (on a related point see Kelly); but the process of coming to this conscientious commitment has helped drive me along for some time now.

This important history of legal, political, practical and personal struggle also makes me want to be loud in puncturing any assumption that Irish society has uniformly supported the legally sanctioned mistreatment of pregnant women.  It’s important that we remind ourselves, and audiences further afield, that we have a proud history of contesting such mistreatment.  Justice for the Magdalenes and Survivors of Symphysiotomy are among the shining examples of such caring and brave contestation.  Our legal system may continue to endorse compelled pregnancy, even for vulnerable women, but there has been a significant gap between law and civil society on this and related issues for some time.  Opinion polls have regularly shown levels of support for abortion access that go significantly beyond what the state is prepared to do.

As we think about how to bring better abortion law into being, I am guided by this sense of a meandering pathway which moves back and forth, and in and out, as it keeps reproductive justice in its sights.  There are obstacles we would like to remove and new signposts and routes we want to add.  But there is also the everyday cultivation of the ground in order to embed that pathway and ensure it takes hold.  I think we might want to distinguish between 3 types of orientation – repeal, legalise, interpret – in legal strategy that are already at work and which we might want to develop. They overlap in practice and it is timely to consider how to make the most of these different orientations along our way.

Orientation 1: Repeal

The repealthe8th strategy, which has gathered such inspiring momentum recently with the excellent coalition-building seminar on 6th September, almost 31 years to the day after the adoption of the 8th Amendment, has focused on removing the constitutional guarantee of equality between woman and foetus.  Article 40 3 3 is an obstacle not just to abortion access but to the treatment of pregnant women more generally through the suspension of their right to consent, as AIMS has argued.  Removing Article 40 3 3 would be a significant achievement practically and symbolically.  But it is insufficient in itself in order to decriminalise abortion since the criminal offence of ‘intentionally destroying unborn human life’ with a possible sentence of up to 14 years, is now contained within s. 22 of the Protection of Life During Pregnancy Act, 2013.  So that Act, which also provides for a problematically discriminatory and intrusive process of authorising abortion in life-saving circumstances, would have to repealed as well, if the legal restrictions on abortion access are to be removed.

Part of me supports the repeal-focused strategy because I think it fits with an approach which regards abortion as a normalized aspect of fertility control and healthcare.   Removing those legal rules which criminalise abortion and constitutionalises foetal protection, and instead applying normal consent and information laws to all pregnancy choices, seems like the obviously right way to go.  But another part of me knows that the removal of anti-choice pieces of law does not necessarily entail the removal of anti-choice legal ideology (on the power of law, see further Smart).  There are plenty of ways in which courts, officials and professional implementers of the law could invoke an 8th amendment like ethos using pre 8th legal sources.  We need to be prepared for, and to try and limit, that possibility.

There are obiter dicta such as that of Walsh J in G v an Bord Uchtala [1980] I.R. 32 which assert that the foetus has a right to life.  These could be drawn on to achieve much the same legal effect as Article 40 3 3.  Indeed one of the anti amendment arguments in the 1980s was that Article 40 3 3 was unnecessary to prevent the legalisation of abortion.  Moreover, as Wade has noted, Walsh J. went as far as stating that the foetus’s right to life involves the right to be reared and educated, the right to liberty, work, rest and recreation and the right to maintain that life at a proper human standard in matters of food, clothing and habitation.  While repeal of Article 40 3 3 and of the PLDPA would be a significant achievement practically and symbolically, it is unlikely to be enough in itself to normalise access to abortion on the territory of Ireland.  It is likely that we would also need an interpretative strategy as discussed below.  This would seek to strengthen existing commitments in the constitution, statute and common law towards the end of recognising women’s autonomy, bodily integrity and equality.  Secondly, it would develop public policy and professional guidance towards limiting protection of any public interest in foetal life to one that is consistent with women’s rights and supports pregnant people’s rights to have children in healthy and safe environments.

Orientation 2: Legalise

The second orientation of ‘legalisation’ would include the repeal element but would also seek to adopt positive legal measures with pro-choice values and procedures.  Such positive legal measures may include a constitutional provision, which explicitly recognises a pregnant person’s right to moral autonomy, bodily integrity and equality, thereby identifying constitutional principles which protect access to abortion as a legitimate option.  An added constitutional provision may not be necessary however, and a pro-choice statute could be the appropriate positive legal measure chosen.  If we are to avoid a situation where some abortions are ‘good’ and permissible and others are bad and impermissible, we need a statutory provision which authorises and protects the pregnant person as the relevant decision-maker.

France is a rare example of a jurisdiction which has, only very recently, adopted a law which allows women access to abortion for their own reasons, during the first 12 weeks of gestation.  It’s true that Roe v Wade 410 U.S. 113 (1973) authorises abortion in the USA as an aspect of women’s privacy rights and without the need to give reasons during the first 12 weeks also.  But women generally have to pay for this abortion care and there are a variety of regulations which mean that they have to observe waiting periods, or have ultrasounds, in a manner which is suspicious of their reasons (see further Sanger).  Pretty much every other jurisdiction requires some kind of reason in order to justify access.

In this international context, it may seem naive to focus on the goal of a pro-choice statute.  We’re very unlikely to get it in a jurisdiction which has a strong anti-choice history when pro-choice campaigns the world over have not been successful in this objective.  Perhaps we would be better focusing our energy on repeal and interpretation, rather than on legalisation per se.  On the other hand, there is something appealing about explicitly asking our state to atone for past and present wrongs to pregnant women by giving us a pro-choice statute and constitutional provisions.  No more crocodile tears please.  We want explicit legal recognition that pregnant people are to be trusted and authorised to make decisions about pregnancy.  Even if we don’t get it, perhaps there is something valuable in asking for a positive legal measure which attempts to clear some of the rubble thrown up by the history of symphysiotomy, the Magdalene laundries and the mother and baby homes.

But if we do give up on the hope of getting a positive, pro-choice law which would respect pregnant women’s judgment, the next best legislative strategy is to focus on risk to health grounds.  Britain’s legal regime requires a risk to mental or physical health in order for an abortion to be authorised during the first 24 weeks of pregnancy under s. 1 of the Abortion Act, 1967.  But statutory reliance on professional discretion and a good faith view of the approving doctors means that a generally supportive profession have a strong interpretative role here (see further Sheldon and BPAS pdf).  Secondly, the factual context of pregnancy and childbirth means that having a baby is usually riskier for a woman’s mental and physical health than ending that pregnancy before term.  So the statutory language in emphasising the good faith view of the authorising doctors combined with good quality abortion care means that the risk to health ground is not difficult for women to meet in practice, even as it continues to be contested.

Legislation which recognises a risk to health as a legitimate ground would build on the long-standing critique of the Irish legal distinction between health and life, a distinction which is not clinically practicable and which puts women’s lives in danger (see for example: Doctors for Choice, part 3, here pdf).  It is imperative that such a statutory ground build on the increased legal and public support for those suffering mental illness or distress and treat mental and physical health as equivalent.  A risk to health ground is also the best way of permitting abortion in particularly difficult cases such as rape or fatal foetal anomaly (FFA), since these grounds can be incorporated into a risk to health ground, without the problems associated with limiting access to grounds such as rape and FFA.  This leads me to considering the merits of the third strategy, as ‘risk to health’ is a ground which facilitates interpretation in light of the lived experience of women.

Orientation 3: Interpret

The third strategy of legal engagement through a focus on interpretation is one which gets less attention but is no less important, indeed might be even more important than the others.  Whatever legal rules we have or come to have, we have to argue for their interpretation and implementation in ways that are more sympathetic to the goals of reproductive justice.  There is always going to be obstacles and rubble, because we are engaged in a struggle over reproductive power.  But the rubble contains useful nuggets which we can dig out and clean up.

Law is a language which regularly uses big words such as life, equality, practicality, and necessity. These words are capable of bearing different meanings.  The meaning of key legal words in a particular case will depend on how they apply to the factual context they are intended to capture and on the history of these words’ interpretation.  In other words, these meanings are not fixed, they have a history and they can change.

The ruling understanding of ‘life’ in Irish law as in many other jurisdictions is one that is typically associated with a ‘sanctity of life’ type approach.  This deems that there is some independent public value in ensuring the continued biological existence of a human being, even against the will of that human being.  This approach has been much criticised across a range of contexts as imposing unnecessary restrictions, including pain and suffering, on moral agents (e.g. Raz, Jackson).  But there are resources within our legal history which we can draw on and develop to help us carve out a different approach to the legal meaning of ‘life’, one which values how sentient beings make their own lives.  As I argued at the IFPA’s Human Rights and Abortion Reform seminar in December 2013, in the case of Re a Ward of Court [1996] 2 I.R. 79, we do see the Supreme Court acknowledge the role of sentience in human life, even if in slightly opaque terms (on the significance of sentience see further Fletcher here and here, Savell, Derbyshire, RCOG).

The legal recognition that someone in a PVS or near PVS state does not impose a legal duty on professionals to sustain that biological life, because it will be of no benefit, amounts to a recognition that consciousness and sentience are significant legal interests.  The Court was careful to say that the incapacitated have rights, including rights to bodily integrity, autonomy and dignity.  But we could draw a distinction between capacity, which requires the more advanced cognitive ability of using and weighing information, and sentience, which is an ability to feel pain or pleasure.  The absence of sentience in foetal life should mean that this form of human life has a legal value which is materially different from the conscious, sentient life of the pregnant person, and does not justify restricting that person’s decisions.

Similarly, the recognition of an unenumerated right to bodily integrity in the Ryan case of 1965 provides a legal tool we can work with to flesh out a legal commitment to some quality of life beyond bare biological existence. True, the court found that Mrs Ryan’s right to bodily integrity did not trump because of a greater public interest in fluoridating water on public health grounds, but there is still something to work with here.  As MacMenamin J commented in Kearney (which concerned liability for the negligent performance of a symphysiotomy), “The Constitution identifies rights which are to be protected and vindicated because they belong to each human person because of their very humanity. Among the values which have been recognised by the Courts are human dignity, bodily integrity, and autonomy, that is the capacity to make informed decisions affecting one’s own health. The duty to protect those rights is not confined to the Courts. Each health professional is, and was always, under a similar duty” (IESC, 2012, para 31). MacMenamin’s recognition of negligent medical treatment of a woman as a breach of her constitutional rights to dignity, bodily integrity and autonomy provides a legal commitment to bodily integrity and autonomy through which Article 40 3 3 (or any legal rule affecting pregnant choices) has to be re-interpreted.

I have long argued that the courts’ interpretation of Article 40 3 3 has been methodologically weak since the first days of the abortion information cases (see here).  They have failed to engage in any depth with the significance of phrases in Article 40 3 3 such as ‘equal’ and ‘as far as practicable’.  They have failed to attempt to interpret Article 40 3 3 in harmony with women’s other constitutional rights.  They have failed to consider ways in which constitutional and common law have usually considered limits on the ordinary human right to life, limits which should at least apply to the foetal right.  Given these failures in legal reasoning, it is arguable that the legal meaning of a pregnant person’s choices in relation to the sustenance of a particular pregnancy could be changed so as to accommodate constitutional recognition of autonomy, bodily integrity and different forms of life.

At a more practical level, professionals and ‘experts by experience’ can do, and are doing, important work in calling for the interpretation of existing laws and guidelines according to best practice and international standards.  As I argued in relation to the apparent treatment decisions of Ms Y, if abortion law is pushing clinicians towards poor and unethical practice in minimising consent requirements for vulnerable pregnant women, then their employers must be called to account in whatever regulatory or civic forum is available.  It is unfortunate that Irish law requires moral heroism of health care professionals, such as the IFPA counsellors (see further Behan), and of experts by experience, such as the members of Terminations for Medical Reasons.  They put themselves on the line again and again in calling the state on its shoddy treatment of pregnant women at the same time as they are left to pick up the pieces.  But their brave work demonstrates that there are ways of building up alternative accounts of good pregnancy care, which can be drawn on to challenge and change poor practice.

Conclusion

I’m really not sure myself as to which of the repeal and legalisation strategies is best right now.  While I see a lot of merit in proactively seeking, and being seen to seek, a positive pro-choice law, my current thinking on this is possibly more ruled by pragmatics than principle.  We’re not very likely to get the kind of pro-choice statute we would want.  We may be better off putting our energy into a repeal strategy and working on generating the kind of interpretative environment which would shore up trust in women’s judgment and support for professionals of all kinds who support women’s judgment in pregnancy.  Whatever happens next, the struggle for reproductive justice and abortion rights is not going to go away.  It is always going to be important to call for the interpretation of the existing legal ‘shambles’ in light of our reproductive justice goals.

Acknowledgments: With particular thanks to the IFPA, DfC, ARC, SpeakingofImelda and HRI for creating civic spaces which have sustained and developed my thinking on these issues.

 

 

Legal pathways to reproductive justice and abortion rights #repealthe8th

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