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.