Following a recent Dublin conference on ‘Building a coalition to repeal the 8th Amendment’, co-organiser Sinéad Kennedy asserted that “[t]he Eighth amendment is a source of discrimination against women but it particularly affects marginalised women who have suffered disproportionately; migrant women, women with little or no income, women who are unable to travel for whatever reason, women facing a crisis pregnancy and women who need an abortion for medical reasons.” Her contention is perfectly illustrated as factual details continue to emerge about the recent case of Ms Y, which exemplifies the dangerous and uncertain situation that women in need of abortion find themselves in in Ireland.
This blog focuses on the problems generated by presuming that women can travel in order to access basic health care. Our concerns with this presumption are both practical and principled: practically, many women cannot in fact travel, and even if they can physically make the journey, travel imposes considerable financial and other burdens on them. Principled objections concern the hypocrisy of both Irish jurisdictions in failing to provide basic health care and thus failing to squarely address questions about the right to health and gender equality in Ireland. In this regard we wish to highlight that the situation of Ms Y is not unique to women in the Republic of Ireland but applies equally to women in the North of Ireland who are also forced to travel to access abortion care.
Travel permeates the Ms Y story. Ms Y was forced to travel to Ireland in order to escape rape and violence in her home country. She was then placed in a situation where once again travel became necessary as she was forced to travel in order to access a basic health service: abortion. Ms Y then travelled between residences in Ireland as, for reasons of shame and stigma, she tried to hide her pregnancy from anyone she knew. It has also recently emerged that in an attempt to access abortion services in England five weeks before her baby was delivered in Dublin, she was arrested in Liverpool for illegally entering the UK from Ireland. The circumstances in which she travelled back to Ireland are as yet unknown.
Ms Y was then confined in a hospital and threatened with detention under the Mental Health Act. Ultimately the aim was that she “could be maintained on the ward for as long as possible and hopefully to 30 weeks so that the baby could be delivered appropriately”. And it is with tragic irony that it is reported that email correspondence between two individuals working at the Reception and Integration Agency at the Department of Justice starts with the phrase “Ann, I don’t mean to interrupt your holliers but…”. Abortion tourism is rightly a much maligned phrase. The juxtaposition of Ms Y, confined to a hospital bed refusing all foods and liquids, with an individual on a holiday starkly illustrates the point.
The health and safety of women and girls in Northern Ireland also relies on their ability to travel. Every year approximately 1,000 women from Northern Ireland join the approximately 4,000 women from the Republic of Ireland who travel to Great Britain in order to access abortion care. Governance of abortion in the North of Ireland is similarly restrictive to that in the South. Abortion in Northern Ireland continues to be regulated by ss. 58 & 59 of the Offences Against the Person Act 1861, which has been judicially interpreted to mean that abortion is permissible only where the life of the pregnant woman is endangered or where the continuance of pregnancy poses a grave risk of serious harm to her physical or mental health. The number of women who meet this threshold each year is small. In 2013, only 51 cases did so. The problems this has generated have recently been acknowledged, albeit to a limited extent, in a Department of Justice Consultation which seeks views on the issue of legislating to decriminalise abortion in cases where the foetus suffers from severe abnormalities or the woman has been the victim of sexual crime. The consultation cites the case of Sarah Ewart who in 2013 testified publicly about the trauma and upset occasioned by having to travel to England to terminate her pregnancy when it emerged that the foetus she was carrying was anencephalic (Department of Justice, The Criminal Law on Abortion para 1.2-1.5). Nevertheless, while it is undoubtedly the case that permitting such terminations in Northern Ireland would be a positive step, such a reform would do nothing for numerous other women and girls. In 2012 a fifteen-year-old girl from Northern Ireland became pregnant at a time she did not want to be and so wished to terminate the pregnancy. She and her mother scrimped and saved to try and raise the funds to travel to England to have an abortion. They needed money not just for travel but also for the procedure itself since as a resident of Northern Ireland she was not entitled to treatment under the NHS. We have described their situation elsewhere as an ‘abortion financial spiral’. The longer it took to save the money for the procedure the further the pregnancy progressed. The further the pregnancy progressed the higher the cost of the procedure. It is also widely accepted that earlier abortions lead to better health outcomes for women. Her mother described the situation as “harrowing”. This girl was lucky that in the end with the assistance of the Abortion Support Network (ASN) she and her mother were able to travel to England to access abortion in a private clinic.
Mara Clarke, Director of ASN, recently described that the organisation was a ‘boutique travel agency’. It was established in 2009 in order to provide Irish women with financial, logistical, and emotional support to access abortion care in England and is a lifeline to the many women in Ireland who need to travel to access abortion care. The ASN website details the barrier that the costs of travel poses to those who need to travel to access abortion care:
“We’re united in our decision not to have another child. Our main worry is getting there, travelling, sorting out childcare and other logistics. With Christmas coming money is especially tight.”
“Though my child will have to do without Christmas presents this year, at least the children of the friend I no longer have to borrow money from will have gifts. Thank you very, very much.”
A particularly striking example of the problems posed by a reliance on travel is evidenced in ASN’s urgent appeal in 2010. This appeal was launched in the wake of the eruptions of the Icelandic volcano Eyjafjallajökull, which caused travel chaos across Europe. The appeal entitled ‘Irish Women Need Cash Not Ash’ aimed to alleviate some of the burdens that the inability to travel was placing on Irish women. The following is an example of a woman they helped:
“This week, we’ve heard from a number of women who were due to have travel to the UK this week for terminations, including a very young teen who is extremely close to the 24 week time limit for abortions in the UK. She had to miss her appointment earlier this week and is now coming next week by ferry and train – a round trip journey of more than 24 hours. Her mother solely supports her and her siblings with a part time job and now has to cover costs of £2,300 (procedure + money lost on cancelled flights + last minute ferry and train tickets).”
This goes to show that even in cases where travel is possible, the burdens and uncertainties remain considerable. ASN is only one of a number of underground networks which exist to facilitate abortion across national borders. The metaphor of the boutique travel agency was recently developed by campaigners in Spain. The fictitious agency emerged as a response to plans, which have recently been abandoned in the face of public opposition, to criminalise abortion in Spain unless the woman had been raped or the continuance of the pregnancy threatened her physical or mental health. Spanish pro-choice campaigners established a fictitious online “Abortion Travel” agency. There was also a pop-up shop in Madrid. Passers-by could enter their stage of gestation along with their reason for wishing to terminate a pregnancy in order to see what their travel options were. As a form of protest, campaigners again wished to highlight the practical realities of so called abortion tourism
It is also worth noting the regional variations that exist within jurisdictions and impede access to abortion services. Thus even within a relatively small jurisdiction, such as the UK, significant variations obtain. Particular obstacles to accessing services are faced by Scottish women, often necessitating travel to England for abortion once they have reached 18-20 weeks’ gestation even though the legal cut-off for most abortions is 24 weeks. In the wake of the No vote in the Scottish Independence referendum fears have been raised that plans to devolve power over abortion law to Holyrood could result in more women having to travel to England to access services. Women from Scotland who have had to travel, to access a basic healthcare service which they are legally entitled, have identified the burden of travel as stigmatizing and distressing. If the litigants in Doogan and Wood are successful we are likely to evidence an increase in the number of women from Scotland who have to travel to England in order to access abortion care.
Ms Y arrived in Liverpool with €38 and £1. The helplessness of her situation echoes the helplessness which many generations of women who travel from Ireland to access services in England have faced. Ms Y was detained as an illegal immigrant. Ann Rossiter’s moving history of the women who travel on the ‘abortion trail’ opens with the following:
“A fraught phone call from Healthrow at around 9 a.m. intrudes on a leisurely Saturday breakfast and newspaper-reading session. A hysterical voice in a strong Northern Irish accent says that someone needs to get to the airport – and quick. ‘Me and me wee daughter are begin held here’, she says in a rush. ‘They’re holding us under the PTA (Prevention of Terrorism Act) and they say we need someone to vouch for us’. After a strong intake of breadth, the woman gives her name and haltingly explains that she has brought her daughter to London for an abortion.” (Ann Rossiter, Ireland’s Hidden Diaspora, p.31).
Cheap airline flights have to some extent made us blind to the burdens which travel imposes on women. Cases like that of Ms Y highlight the terrible and helpless situation which women travelling from Ireland have faced in the past and continue to face. Marcia Inhorn has described forced travel to access reproductive health care services as a form of ‘reproductive exile’. The narrow remit of the Northern Ireland consultation, which limits discussion on decriminalisation to two very narrow issues, is clearly inadequate to address the flaws of abortion regulation and seems doomed to repeat the problems that have already emerges with the Protection of Life During Pregnancy Act 2013. Since the insertion of the Eighth Amendment in 1983 it is estimated that at least 160,000 Irish women have been forced to travel to access abortion services. As we have argued elsewhere, restricting access to abortion only delays abortions rather than stopping. Surely it is time to amend the threshold for accessing safe and legal health care services and acknowledge the reality of what travel means.