This piece is partially cross-posted from Critical Legal Thinking. Those not familiar with the facts of the case as reported by Irish Times journalist Kitty Holland can find a full account of those, and of the basic law behind this case there.
In a sense I cannot add to, or improve upon, William Wall’s elegant reflection on the case in which a young migrant to Ireland was wrongfully refused an abortion. But I can underline and re-iterate what it may mean for Irish abortion law. As things stand, we do not know when we will discover how the state’s organs and agents reasoned to brutalising this young woman. Doctors for Choice have asked for an independent inquiry, headed by the man who chaired the inquiry into the death of Savita Halappanavar. But we are unlikely to get one. The HSE will conduct an inquiry into this case. But it will not consider the reasons why a C-section, rather than an abortion was performed in this instance, at likely great cost to the health of this woman and the baby. Somewhere in the High Court digital recordings archive is the evidence of the legal arguments made by lawyers for the HSE, the woman and the then unborn baby at a time when it was sought to compel this woman to accept medical treatment including, apparently, Caesarean section to facilitate a birth she plainly did not want. In particular we do not know whether the arguments accepted by the High Court when it made its hydration order were based on the woman’s own best interests, on on the the basis of some previously undisclosed right of the ‘unborn’ to be born alive. Precisely what law shadowed this woman’s experience? What were its terms? The not knowing is a form of regulation. Any worthwhile inquiry must answer these questions. We keep being told we are not ‘in full possession of the facts’ about this case – a subtle undermining of protest by those who like to frame themselves as ‘in the know’. We are not in full possession of the law. We are not in full possession of ourselves.
But even against this backdrop of grave uncertainty, we can make three key claims, which must become the subjects of government and public debate.
- On the facts as reported, this woman’s human rights were violated. Given the shape of our public discourse Irish people sometimes have difficulty in grasping that a woman is legally wronged by the abortion regime even if she does not die. Under the International Convention on Civil and Political Rights, as a raped woman, she was entitled to access an abortion. But she also suffered violations under our law. The long delay between the time at which this young woman first reported the risk to her life to the authorities and the time when she was first assessed under the Act may be repairable, in theory, by publishing new protocols or guidelines. But the delay was a sustained breach of her rights to privacy, and to freedom from inhuman and degrading treatment. In a very real sense, her experience was very close to that of Ms. C in A, B and C v. Ireland. She was entitled to access a termination in Ireland, but no reliable accessible mechanism was available – despite the new legislation – to enable her to vindicate that entitlement. Let us be clear. Ireland remains in breach of its obligations under the ECHR. The Government has not kept its own limited promises to address that breach. It has not published, yet, its much-vaunted Guidelines. It did not make provision for women with limited English, or for marginalised women who would find it hard to access medical help.
- There is a very real risk that the suicidal woman’s constitutional right to access a life-saving abortion is illusory after a certain number of weeks. It may be that the courts, and the HSE and its doctors are enforcing an interpretation of the Constitution which requires the state to ensure an opportunity for live birth by some forced intervention: by C-section, or by induced labour. Potentially, this interpretation might require the pregnancy to be sustained for a period until viability even against the mother’s firm objection. Let us be clear. The X case did not consider this sort of scenario – Miss X was only 12 weeks pregnant, and so the question of what an ‘equal’ right to life at a later stage of pregnancy might entail did not arise. We have had no judicial guidance in this area. Moreover, the Act does not, contrary to HSE suggestions, provide that a woman who is constitutionally entitled to an abortion may be required to undergo a C-section to terminate the pregnancy instead. Even a cursory reading of ss.8 and 9 discloses that the Act only governs access to medical procedures which end ‘unborn life’. The Act undoubtedly allows for life-saving abortion at 24 weeks, and performing C-section is only consistent with refusal of access to abortion. It seems very likely that the Constitution, and the Act designed to implement it, are being interpreted here by petty unelected officials to require practices which are, as Ruth Fletcher has written here, harmful for the woman, if not dangerous for the child. What is an intensely vulnerable woman supposed to do in this situation? Demand an appeal? Resist imposition of the C-section in the High Court? The HSE are about to publish guidelines on the treatment of women whose lives are placed at physical risk by pregnancy, which reportedly express a similar inclination to attempt induction where possible, instead of allowing the woman to access an abortion. While the guidelines are intended to ensure that doctors do not allow a woman’s physical condition to deteriorate for as long as the foetus has a heartbeat – as happened in Savita Halappanavar’s case – it would be troubling if the option of dilation and evacuation were not available to women who want it , where the foetus is not viable. This sort of interpretive work generates a hidden Constitution. We need a public explanation and justification of this sort of reasoning, so that we can decide whether law reform is required to prohibit it. We could amend the existing Act. Asking for this is not asking for ‘comments on individual cases’ or breaches of privacy. It is asking for clarity on government policy.
- It would be foolish ever to think that stories of what happens to women under their laws will necessarily move the Irish political classes to action. Remember that the Act does not change the law which contributed to the death of Savita Halappanavar. Remember that they are able to divorce the memory of the Magdalenes, and of symphysiotomy, from what happens in today’s maternity hospitals. I hope that all political parties now recognise that it was wrong to pass the Protection of Life During Pregnancy Act in its current form and will commit, despite their instinctive reluctance, to a referendum in the lifetime of the next government. (See Fiona de Londras here and here) #Repealthe8th is a coherent accessible demand. But we cannot solve the sorts of problems reported in this case simply by repealing the Eighth Amendment. The issues require deeper discussion, and even pro-choice lawyers will disagree about the best route to take.
- I favour stripping the abortion provisions from the constitution and decriminalising abortion. Irish people under 50 have never had an opportunity to vote on an abortion law which was not strangled by a constrictive interpretation of the ‘right to life’. I think that the genesis of the Amendment, and the subsequent referenda, though they met the minimum standards to effect constitutional change, were almost uniquely politically dysfunctional (see Sandra McAvoy here) to an extent that puts their legitimacy in serious question. (It was truly astonishing to see one of the architects of this constitutional provision denigrate aspects of international human rights law as ‘political’ while standing over this provision this week). Finally, I think that by removing that provision, we can at least attempt to free the law from certain difficulties of conservative constitutional interpretation – by judges but, more importantly by state agents charged with applying the law – which have dogged the Amendment since its passage.
- I think that we should resist efforts to insert a new provision covering, for example, rape, incest and fatal foetal abnormality while leaving women in other situations to ‘travel’. By exceptionalising abortion – by taking the position that it is generally to be permitted only in the most gruelling of circumstances – we run the risk of creating new, if presently unforeseeable, categories of devastating hard interpretation cases further down the line.
- Any change to the text would need to be accompanied by clear-sighted discussion of what the Constitution might be read to ‘say’ about life, bodily integrity, autonomy, privacy, inhuman and degrading treatment and so on in the Eighth’s absence. Because there has been so little strategic domestic litigation of the Amendment, at least by pro-choice agents – we are very much in the dark here. It may be that, as has been suggested, a Constitutional Convention is an appropriate forum in which to discuss issues of this kind, provided it does not become a delaying tactic.
- Finally, whatever the text of the Constitution becomes, we must unpack and reform the legislation passed to enforce it – including the Abortion Information Act and the Protection of Life During Pregnancy Act. We must unpack and rethink the multiple intersecting lines of policy – medical, immigration, child protection, mental health and so on – which shape women’s access to abortion. We must research, understand, unpack and challenge the forms of ‘clinical best practice’, habitual power or well-intentioned but thoughtless routine which would subject women to degradation and distress of the kinds reported in this case and that of Savita Halappanavar. We must determine, for ourselves, the rights standards which will animate the interpretation and application of any new legislation. Once legislation is in place, we will likely need to be prepared to litigate to defend it. In truth, nothing short of a wholesale orientation of the Irish state approach to the care and support of pregnant women will bring us to an acceptable legal position. No blue pencil can do that work, and none of it can be rushed. Repealing the Eighth, for me, is the first of several slow steps.
For those who are interested in interrogating and reforming the law in Ireland, there are several options:
- Lawyers, legal academics and law students – whether based in Ireland or abroad -can join the new advocacy organisation Lawyers for Choice – firstname.lastname@example.org.
- Come to this September event on building a coalition to Repeal the Eighth.
- Protests are taking place in cities across Ireland today at 6pm. Speaking of Imelda, pictured above, are co-organising an event in London at the same time, outside the Irish Embassy.
- Several important issues of reproductive justice will be considered as part of the Northern/Irish Feminist Judgments Project (www.feministjudging.ie). This will provide a much-needed forum for rethinking the habits of constitutional interpretation, legal argument and legal education which generate cases of this kind. You are welcome to express an interest in the project by emailing email@example.com.