This is a cross-post from Inherently Human: Critical Perspectives on Gender, Law and Sexuality.

A great deal has been written about the recent developments in Irish abortion law. Most readers will know the basics. The Eighth Amendment to the Irish Constitution, as interpreted in a case famously known as X, provides that a pregnancy may only legally be terminated in Ireland if: (i) there is a risk to life (as opposed to the health) of the pregnant woman; and (ii) as a matter of probability, that risk to life can only be averted by termination of the pregnancy.  In all other events, Irish women may and do avail of their constitutional right to travel, and most often seek abortions in the UK, often at significant personal cost, or use medication purchased online. (Although the purpose of the Amendment is to ‘balance’ the rights to life of the pregnant woman and the foetus, women who are carrying foetuses which are not medically viable are habitually denied abortions in Ireland, even though the state itself argued in D v. Ireland before the European Court of Human Rights that such a foetus does not necessarily enjoy Eighth Amendment rights.) In the past year, three difficulties with the constitutional regime (always a matter of unofficial knowledge) have emerged into public view.

  1. The European Court of Human Rights in A, B & C v. Ireland held that Ireland must end the 20-year delay in legislating for the constitutional right to abortion because the delay in legislating has had a ‘chilling effect’ on doctors’ ability to assess women’s entitlement to access abortion in Ireland (for further details on the challenges of legislation, see a humanrights.ie blog carnival  here, and see a recent conference at UCC here). The Government formed an Expert Group to examine options for legislation and its Report was published last November. Subsequently, the Oireachtas held hearings on the implementation of legislation in which several representatives of the medical profession confirmed their desire for legal clarity. The Government has indicated that the ‘Protection of Maternal Life’ Bill is on its way in the summer.
  2. In the case of Savita Halappanavar, two of the costs of the Irish abortion regime have been laid bare. The first is the entanglement of religion and law which undergirds that regime. The second, which appeared from the inquest into Ms. Halappanavar’s death, is the fact that this regime both generates confusion on the part of doctors and, as far as several leading medics are concerned, requires doctors in cases where the woman does not present as at immediate risk of death to engage in a sort of  ’brinkmanship’, waiting until she is sufficiently ill to earn her constitutional rights.
  3. This week, there has been a great deal of discussion about what legislative provision should be made for abortion by suicidal pregnant women. There has been some suggestion that members of Fine Gael (the dominant partner in the coalition government) would require suicidal women seeking an abortion to be assessed by six doctors; two obstetricians and four psychiatrists of which one should be a perinatal psychiatrist. The assessment would take place in two stages – an initial certification and a review, presumably with some provision for appeal. This proposal is at odds with the Expert Group Report, which had suggested that, at most, two psychiatrists and an obstetrician should be required for this purpose, and even then cautioned against the risk of unnecessarily stigmatising mental illness. A leading Irish psychiatrist has called the proposal unworkable and abusive.

The terms of the Protection of Maternal Life Bill involve nothing less than Irish women’s citizenship. Campaigns such as Action on X, Doctors for Choice, and others represent the efforts of political coalitions to take the stage of citizenship, to contest the assumptions which have led us to this dreadful constitutional framework, and to write a law together which would treat our bodies and our voices otherwise. I want to say a little about what that challenge entails, particularly as it relates to political constructions of the suicidal woman.

In a recent article, ‘Civic Universalism and Its Internal Exclusions’ Etienne Balibar redoubles over his earlier work to point to a fundamental tension in modern citizenship. Citizenship promises equal access to the means of political transformation; to the public sphere. It promises that we shall be more than the servants of pre-established authorities. It promises to replace the vertical relationship with the sovereign with an immanent relation to the law, so that we – in community with others – shall be law’s authors more than its subjects. It says that we deserve nothing less because we are human; because the power of citizenship reflects the essential capacities which derive from our humanity. This is the promise of subjectivation. It is every citizen’s endeavour, and it is the endeavour which will mark the bloody Irish public debates of the coming summer.

At the same time, the subjectivation which citizenship promises is shot through with old obligations and demands for subjection. We become citizens in relation to other citizens. Our emergence as citizens is dependent on fellow citizens seeing us and judging us as such. The reality of our world is that forms of discrimination and oppression re-emerge in our relations with one another. These require our subjection, exclusion, and obedience. That is the experience of Irish women under the abortion regime (see an excellent post from feministire here). The excluded are ‘protected,  cared for, or “minorized,” (see the prominent pro-life Irish psychiatriast Patricia Casey here, arguing that suicidal pregnant women require protection and ’care’ ) but also punished, segregated, relegated, barred  from access to … exchanges, communities, and  recognitions’ core to citizenship. So, for instance, in Ireland, our Constitution – a legal regime premised on equal access to the freedoms, capacities and rights of citizenship – suppresses via the Eighth Amendment the rights claims of pregnant women on the basis of their purported natural difference.  Some of citizenship’s internal exclusions are more difficult than others. Those forms of subjection that coalesce around what Balibar calls the ‘anthropological differences’ – such as sexual difference – which are considered constitutive of the human generate perhaps the most violent exclusions, because they both call into question our full citizenship and our humanity (consider Praveen Halappanavar’s coupled observations that his wife’s experience before her death was ‘inhumane and barbaric’ and that ‘you lose your rights basically when you are pregnant in Ireland’).

But how do we understand the task of undoing the entrenched internal divisions of citizenship? Balibar has always argued that the task of politics is to re-take citizenship in all its potential. Subjectivation has only been possible by engaging old subjections, and yet subjectivation is always threatening to collapse into new subjections; this is an antinomy of citizenship. (Consider how the same Fine Gael politicians who applauded themselves on transcending the patriarchy of the Magdalene laundries fight now for the patriarchy of the imminent ‘Protection of Maternal Life Bill). So feminists and others, in claiming citizenship, must always be prepared to critique its internal divisions, to commit ourselves to a process of ‘revolution against the revolution’, of insurrection alongside constitution. Balibar provides some hope by reminding us of the fragility, contradiction, and contingency of anthropological difference. This is where the possibilities of resistance from the inside lie.

Balibar argues that anthropological differences, though impossible to dismiss are also impossible to define; they can neither be ignored nor stabilised. Attempting to define them entails inevitable and impossible struggles over definition, control, and visibility. Following Foucault, (and in a discussion which is markedly relevant to the current Irish debate on ‘suicidal ideation’, taking place as it does against a law which criminalises abortion) Balibar charts how an exclusion core to citizenship coalesces around the notion of the normal. The normal is defined, across multiple institutions, through the negation of mental pathologies and deviant criminal behaviour. These institutions – medical, penal, juridical, and others – distinguish among and judge between individuals, classify them, judge their characters, and distinguish between different forms of deviation from the norm. Psychiatry and law are keen collaborators in this ambivalent enterprise; Balibar notes how doctors become experts or ‘judges judging before a judge, who provide pre-judgment’; determining whether the subject assessed is a criminal or some other deviant personality who must be dealt with otherwise than by law.  And Balibar also notes, following Foucault, that these aspects of judgment – particularly legal judgment – may concern the entire citizenry, insofar as they instantiate obsessive attempts both to ‘defend the security of the society’ against the abnormal and to perform a collective introspection; trying to understand who ‘we’ are and to make human behaviour intelligible to ‘us’ (in terms, of course, which reassure ‘us’ that we are not abnormal like those ‘others’).

But Balibar emphasises that the adjudication of normalcy is a difficult obsession. The normal is ambiguous, and is necessarily destabilised by every attempt to assess it. In particular, subjects do not always lend themselves to pre-ordained categories and binaries; they do not behave as ‘we’ would ideally have them behave. For instance, Balibar argues that under liberal politics, the subject can be mad or criminal, but not both – perhaps the very binary that the X ‘psychiatric’ provision puts into play. Those who find themselves ‘out of place’ or emerge into a space where they do not belong Balibar calls ‘foreign bodies’. Attempts to incorporate them (or recuperate them) within the frameworks of knowledge/power which constitute the ‘normal’ must develop profound and unsettling contradictions; indeed, insofar as ‘anthropological difference’ is at stake, these contradictions go to the core of our sense of the human as much as of the citizen. (Ireland has had so many ‘foreign bodies’ to contend with in the politics of abortion, so many public appearances of women who do not fit the category either of the pure victim of ‘madness’ or the strategic criminal who would destroy a child for selfish reasons.)

How can a feminist politics of citizenship make the most of the ‘foreign body’? Foreign bodies may be made to appear ‘monstrously’ inhuman when subjected to the process of judgment. But Balibar insists that it is also possible to identify the ‘foreign body’ with the absolute or ‘arch’ human. ‘No being is more human or…more clearly embodying the “destination of the human”, than a criminal, a madman, a stranger…a jealous or hysteric woman…[T]aken together…all these singularities are the majority, the quasi-totality of mankind. They push the bearers of the model of the human… towards the margins’. Anthropological differences appear less ‘natural’. The sites of normality/abnormality become ‘impossible to locate’. They shift places and change configurations. This realisation makes the simple, positive exclusions which undergird citizenship impossible. Balibar argues that we can bring this sense of contradiction to bear on subjectivation. Remember that we become citizens in relation to one another. Suppose subjectivation can be suffused with a sense of the unease which the foreign body brings with her, so that in our relations with others we are all less certain of our own humanness and thus of our entitlement to judge, exclude, or protect under law; so that we are all irreducibly uneasy? (As I was writing this piece, the news came that the College of Psychiatry in Ireland has said that its members will not participate or ‘collude’ in the compulsory assessment of suicidal women seeking an abortion. Its members refuse to be the country’s ‘social police’. Isn’t this the appearance of the uneasy subject who refuses to participate in exclusionary judgment, and in so doing at least temporarily decommissions a process of subjection? How many other Irish people are slowly finding ways to manifest a similar unease?).

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Written by Máiréad Enright

Máiréad Enright lectures at Kent Law School. She is also a PhD candidate in the Centre for Criminal Justice and Human Rights, University College Cork. Her research interests are in gender and the law, law and religion, citizenship and the political dimensions of private law. You can contact her at M.Enright[at]kent.ac.uk or (+44) 1227 827996.