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.  Continue reading “Legal pathways to reproductive justice and abortion rights #repealthe8th”

Legal pathways to reproductive justice and abortion rights #repealthe8th

Options for Constitutional Reform #repealthe8th

This joint post by Máiréad Enright and Fiona de Londras draws heavily from Enright & de Londras, “’Empty Without and Empty Within’: The Unworkability of the Eighth Amendment after Savita Halappanavar and Miss Y” (2014) 20(2) Medico-Legal Journal of Ireland __ (forthcoming)

The current constitutional framework for abortion, stemming from the Eighth Amendment, inflicts significant harm on women. However, notwithstanding that, some argue that there is nothing to be done. An assortment of arguments about ‘political will’ assume that because the electorate has voted on ‘the abortion issue’ three times, there is no legitimate scope for a referendum to repeal the Eighth Amendment and reform the constitutional position. In this post, we argue that a referendum is required for the purposes of constitutional regeneration and then consider two options for constitutional reform, arguing that rather than simple repeal, repeal and replacement of the Eighth Amendment would be the appropriate approach.

Justifying a Fourth Referendum

In its submissions to international human rights treaty bodes and the European Court of Human Rights, as well as its responses to the pronouncements of these bodies on Ireland’s abortion law regime, the Government tends to claim that the current law in Ireland reflects the sovereign will of the people, basing this claim on the fact that it emanates from a series of constitutional referenda on abortion. It is possible to unpick this argument from a critical perspective: one could point to the dysfunctional political processes that generated the Eighth Amendment in the first place, to the limitations of the referendum questions put to the electorate, or to the expanse of time and cultural change that stands between us and 1983. However, even leaving these arguments to one side and accepting the Eighth Amendment and subsequent abortion referenda as legitimate expressions of political will, there are compelling reasons for holding a fourth referendum on abortion.

Our argument is a simple one of constitutional renewal: a ‘forward looking argument’. When we have faced positions like the current one before, in which stagnant processes of constitutional interpretation by the judiciary or other state agents, have produced an unworkable legal framework not in-keeping with the broader spirit of the Constitution, we have held referenda to begin again. This is how we added the rights to travel and the rights to information to the Constitution, for example. The Children’s Rights Referendum is one key recent example. The Citizenship Referendum in 2003 was, arguably, another. Furthermore, where a constitutional status quo seems considerably at odds with popular demands for a revised constitutional settlement, the principle of popular sovereignty upon which the Irish Constitution rests, and which was reflected in the Constitutional Convention held last year, militates towards reform.

It seems incongruous to accede to popular demands for referenda on minor changes to voting age and presidential term, for example, and to simultaneously continue to refuse the people an opportunity to vote in a liberalising abortion referendum.

Furthermore, the current operation of the Eighth Amendment is the product of suffocating trends in interpretation of the constitutional text, both in the courts and elsewhere. We appear to have developed a constitutional regime that allows women’s lives to be put at risk in ways that are very difficult to justify except outside a very restrictive reading of the Constitution: as Ruth Fletcher has argued, phrases such as ‘equal right to life’ and ‘as far as practicable’ could be interpreted in a more imaginative and liberal way to deal with, for example, fatal foetal abnormality and abortion in situations of clear unviability. However, interpretive interventions of this kind are highly unlikely, and mere adjustment of the PLDPA cannot adequately address the harm imposed on women by the constitutional status quo. Furthermore, the current law on abortion in Ireland is inconsistent with our international obligations, as noted by the UNHRC earlier this year.

Thus, there are compelling democratic, practical, and legal reasons for holding a constitutional referendum to reform Irish abortion law, however the question of the form that such a referendum might take remains an open one. There are two clear options for effective reform by means of constitutional referendum: ‘simple’ repeal of relevant constitutional provisions, and replacement of current provisions with new provisions expressly outlining the availability of abortion in Ireland. Both options raise some particular questions and challenges, and both would require legislation in order to give them proper effect should the referendum in question be successful.

Option 1: ‘Simple’ Repeal

Some pro-choice campaigners advocate a simple repeal of the Eighth Amendment, in the hopes that this would de-constitutionalise abortion, and return it to the legislative sphere. In effect, the argument goes that removal of Article 40.3.3 would leave the Constitution protecting a general right to life, without express reference to unborn life, and that in any subsequent litigation the Supreme Court would take the referendum result as indicating an intention to abolish the constitutional prohibition on abortion. Excising the constitutional provision would rid Article 40.3.3 of any further effect, ostensibly leaving the contours of abortion law for political settlement in the Oireachtas.

However, it is not necessarily clear that the effect of repeal would be quite as straightforward as this suggests. It may well the case that the Constitution contains loose threads, which might influence judges in a later case so that the Constitution may be said to contain a meaning not anticipated by the repeal campaign. Assuming that the effect of repeal is prospective only, there is an argument, based on dicta from a number of cases, that the foetus in utero enjoyed a constitutional right to life prior to the insertion of Article 40.3.3: this is certainly suggested in G v. An Bord Uchtala [1980] IR 32, and the judgments of Walsh J in McGee, McCarthy J in Norris and Barrington J in Finn v. The Attorney General [1983] I.R. 154.

Should Article 40.3.3 be removed from the Constitution there is a possibility that this jurisprudential conceptualisation of the right to life as include a right to be born might be revived to assert a constitutional right to life of the unborn, which would then have implications for the autonomy and bodily integrity of pregnant women and might well constitutionally constrain abortion law reform. Although unlikely, given that the express purpose of a repealing amendment would be to de-constitutionalise abortion, this nonetheless remains a possibility.

The X Case illustrates the practical, political and legal challenges that can flow from judicial interpretation of constitutional texts relating to abortion, and indeed the possibility of unanticipated consequences of seemingly straightforward constitutional amendments, so that a ‘simple’ repeal without the insertion of any clarifying provisions carries with it remote, but real, risks of the judicial re-constitutionalisation of abortion.

Option 2: Repeal and Replacement

The second option for constitutional reform is the repeal and replacement of Article 40.3.3 in order to make clear the constitutional position relating to abortion in a manner similar to the 15th Amendment (on divorce). Bearing in mind that an overly detailed constitutional provision can hamstring subsequent legislative efforts and make law reform burdensome, a relatively modest approach to a replacement provision would seem advisable.

This could be achieved by replacing the current text with an express right to bodily integrity together with the right to life, which the state would pledge to vindicate and protect, followed by a secondary provision employing the ‘Nothing in this constitution shall operate…’ formula to explicitly permit the introduction abortion.

A formulation of this kind should place beyond doubt the deconstitutionalisation of abortion per se while leaving the precise parameters for the provision of abortion to be determined through the political sphere and for subsequent revision and reform if appropriate and desired. It should also preclude the state from upholding a law which is inconsistent with international human rights law and comparative practice in the field of abortion law, on the basis that it represents the ‘will of the People’. It should ensure, accordingly, that governments must take full political responsibility in domestic and political spheres for their decisions as to the availability of abortion in Ireland.

Options for Constitutional Reform #repealthe8th

The Problems of Travelling to Access Basic Care #repealthe8th

by Sheelagh McGuinness & Marie Fox

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. Continue reading “The Problems of Travelling to Access Basic Care #repealthe8th”

The Problems of Travelling to Access Basic Care #repealthe8th

The Art of Listening #repealthe8th

by Roja Fazaeli

The art of listening is in short supply in all too many professions. My own experience giving birth in the National Maternity Hospital in Dublin in January 2014 illustrates this.

While I had some moments of extraordinarily good care during my pregnancy, these were outweighed and overshadowed by bad care. I trace the root of this bad care to the inability or unwillingness to listen to me as a patient, a woman, an ethnic minority, an individual.

Ears were closed from the start. I had had high blood pressure throughout the later stages of my pregnancy, which at one point necessitated an overnight monitoring stay. The pressure was still high when I presented in the cold early morning hours in pre-labour. The first doctor who examined me looked at the high numbers and simply said, “We’ll give you a pill and then you can probably go home.” He started to walk away. “’What’s the pill?” I asked. He continued walking. “Excuse me, what’s the pill? My husband asked. He ignored us and continued out into the hall. Instead of acknowledging that high blood pressure was a concern for me, instead of asking briefly where home was and how long it would take us to get there and back, he provided his expert advice, one size fits all, and did not care to stop and listen how we would receive it or the impact it would have upon us. The tone had been set. Continue reading “The Art of Listening #repealthe8th”

The Art of Listening #repealthe8th

Staying on board: Contraception, abortion and healthcare in Ireland #repealthe8th

by Fiona Dunkin & Aoife Campbell, Re(al)-Productive Health

On 22nd May 1971, a band of 47 women marched brazenly and triumphantly into Connolly station in Dublin, armed with various assortments of condoms, spermicides, jelly and what appeared to be contraceptive pills.*

To many onlookers in Connolly station that day, this was a scandalous, or at the very least, farcical scene. After all, this was Ireland of the 1970s, a country still firmly entrenched within the grips of the Catholic Church, a country in which women were forced to leave public service upon marriage, and vitally, a country that had not yet legalised contraception. Continue reading “Staying on board: Contraception, abortion and healthcare in Ireland #repealthe8th”

Staying on board: Contraception, abortion and healthcare in Ireland #repealthe8th

The Geography of Abortion #repealthe8th

It is interesting to speculate what Irish abortion law might look like if Ireland were to be situated in the middle of the Atlantic Ocean rather than on its edge. (Preferably, this would be somewhere warm and sunny, out of the path of hurricanes). If travelling to our nearest neighbour were a lengthy and prohibitively expensive expedition rather than the one-hour plane ride it is now, how would we collectively frame our abortion policy? What if, in our ‘splendid isolation’, we required visas to travel to Great Britain? Absent the ‘safety-valve’ of proximity to Britain, would we have adopted a stance that bans abortion in all but the most extreme of cases? Continue reading “The Geography of Abortion #repealthe8th”

The Geography of Abortion #repealthe8th

ARC on the need to #repealthe8th

by Abortion Rights Campaign

A common, almost hackneyed maxim (replicable to outline any injustice by changing the last word) goes that a society is best judged by how it treats its women. If a society treats its women as second-class citizens or, in the already immortal words of the UN Human Rights Committee Chair Sir Nigel Rodley, as “vessel[s] and nothing more”, then there is something fundamentally broken in that society. Part of the Abortion Rights Campaign’s (ARC) work is to mend the destruction wreaked by the Eighth Amendment and a decades-long assault on women’s health, lives and lived experiences.

Since its inception less than two years ago, ARC has been an integral part of a groundswell of support for choice and change in Ireland. 2014 has been a busy year for us. Our annual March for Choice last month saw an estimated 5,000 people take to the streets to the sounds of samba drums, rumbling wheelie cases and pro-choice chants, followed by an after-event with a speak-out, screenings, music and a participatory art installation. Our Policy and Advocacy team has been busy myth-busting, speaking at the EU Parliament and holding our Government to account at the UN Human Rights Committee. Our #notavessel media campaign has galvanised a new generation of feminists and pro-choicers. This is not to mention fundraising, street stalls, roundtables, creative actions and a demonstration in solidarity with our sisters in Spain, who, through their collective fightback against reactionary “reforms” to abortion rights, forced their Government to consign Gallardón’s Law to the scrapheap of misogyny from where it came.

Yet we still have much ground to cover. Despite a sea change in public views on abortion—an inexorable consolidating of pro-choice sentiment—ARC understands that the Eighth Amendment, and its associated hypocrisy, paternalism and brutality, will not disappear without a whimper. #repealthe8th will require a concerted effort to stave off the stigmatising moralism of the religious right, the deliberate disinformation of the anti-choice lobby and the cravenness of a cloistered and conservative political class that has always lingered a country mile behind public opinion on abortion.

The organisers of this blog carnival have suggested that ARC outline briefly what kind of abortion law we might like to see. In short, we want the State to respect and acknowledge the rights of women. We want the Government and the Oireachtas to engage meaningfully with the reality of women’s lives in Ireland and to make this engagement the starting point for any policy which addresses abortion access. The question should be: “On what ethical or logical basis, by what authority, in whose interests, and for what purpose does the State seek to involve itself in the deeply private decision-making processes of women during pregnancy?” The question should not be: “On what grounds should we allow abortion?” Discussion of the legal advancement of abortion access in Ireland, and elsewhere, is often framed in this light, on what grounds abortion should be available, what women in what horrible circumstances are deserving of access to health care. But this attitude only serves to redouble the shaming of women, delegitimising their right to control their reproductive destinies. Such a narrative immediately frames abortion as a social ill, something which can and should be restricted. One of the Abortion Rights Campaign’s main aims is to dismantle stigma at its core and to challenge this “good abortion/bad abortion” narrative. To suggest that certain women are more or less deserving of reproductive justice than others is the kind of mentality that gives rise to a law that sees a woman subjected to a panel of up to seven medical professionals to prove that her life is worth safeguarding. We believe that women in Ireland have a right to bodily integrity, a right to health and a right to self-determination, and these rights should not be revoked once a woman becomes pregnant.

Together, through our partnerships with other pro-choice, feminist, human rights, student, labour, etc., groups, we will tear out the stain in our Constitution that is Article 40.3.3° and we will ensure access to safe, legal abortion in Ireland once and for all—for the good of those of childbearing age and for the good of society as a whole.

What is the Abortion Rights Campaign?

The Abortion Rights Campaign (ARC) is an all-Ireland alliance of groups and individuals advocating full reproductive rights, including the right to access free, safe, legal abortion in Ireland. We believe that women’s health and women’s lives matter. Like any other personal health-care decision, choosing whether or not to carry a pregnancy to term is a decision that should ultimately be made by the patient, in the case of pregnancy the pregnant person.

Despite successive opinion polls showing an inexorable trend towards increasing societal acceptance in Ireland of abortion, many barriers to women’s full reproductive rights remain across the island of Ireland. ARC is working to dismantle these barriers so that women can make their own decisions in the best interests of both themselves and their families.

What are ARC’s aims?

ARC aims:

  • to educate the public and policymakers about the need for legislation to give full effect to the X and C judgments, i.e. legislation allowing for practicable access to abortion services in the case of a risk to the woman’s life, including a risk of suicide;
  • to promote broad national support for a referendum to repeal the Eighth Amendment to the Constitution of Ireland; to campaign for the introduction of extensive abortion legislation by the Northern Ireland Assembly; and to ensure the health of pregnant women in Ireland is protected in line with international human rights standards and best medical practice;
  • to educate the public and policymakers about the need for access to free, safe, legal abortion in Ireland for all who need it, regardless of citizenship status or financial capacity, in line with the provision of other basic health-care options;
  • to mobilise support nationally among a diverse range of communities and individuals, including trades unions, student unions, migrant groups, human rights bodies, etc., for the right to choose abortion;
  • and to promote the provision of relevant, impartial, up-to-date information to support evidence-based policymaking and to challenge anti-choice misinformation and stigmatising rhetoric that seek to threaten reproductive rights.
ARC on the need to #repealthe8th

Abortion in Ireland: Some Considerations for Non-Extremists #repealthe8th

by Clara Cecilia Fischer

Last month, Minister for Health, Leo Varadkar, stated that the problem with the abortion debate in Ireland is that it is dominated by the extremes, that is, by those on the anti-choice and the pro-choice sides, or by the “Catholic versus anti-Catholic view of things.” Such assertions of extremism in Ireland have surfaced time and again, perhaps themselves forming a dominant narrative that conflates opponents to abortion in most, if not all, circumstances on the one hand, with proponents of a more liberal regime. Given that the latter cohort of people represents, according to successive opinion polls, a majority of people in Ireland, it is surprising that the narrative of extremes still holds sway among our public representatives. A 2013 Paddy Power/Red C Poll found that 64% of people are in favour of more liberal abortion laws, and, according to the latest Sunday Independent/Millward Brown poll, 69% believe abortion should be allowed in cases of rape, while 68% support abortion where a woman’s long-term health is at risk. Notably, 56% want to see a referendum held to repeal the 8th Amendment to the Constitution (Article 40.3.3) (with just 19% against the proposal, and 25% undecided) – the very referendum Minister Varadkar rejected by appealing to the narrative of extremes and the potential havoc any (read: necessarily extreme) debate on abortion in Ireland may wreak in the run-up to the next general election. Continue reading “Abortion in Ireland: Some Considerations for Non-Extremists #repealthe8th”

Abortion in Ireland: Some Considerations for Non-Extremists #repealthe8th

The Shape of Maternity: Recommendations for Reform in Maternity Care #repealthe8th

It is now 21 years since the 8th Amendment. However there are other dates to remember when considering the experience of pregnant women in Ireland. It is also eleven years since Michael Neary was struck off the medical register. Eight years since Judge Harding-Clarke’s report into obstetric practices at Our Lady of Lourdes Hospital Drogheda. It is sixteen years since the first complaints against Dr. Neary and his colleagues were registered with the North Eastern Health Board by midwives at the Lourdes Maternity Unit. It is sixteen years since Returning Birth to Women was published. It is twenty years since the publication of the report by the Maternity and Infant Care Scheme Review Group. It is sixteen years since the Maternity Services Review Group – the Condon Group – was convened. It is twelve years since the Maternity Services Task Group was set up. It is sixty years since the Maternity and Infant Care Scheme was launched. It is eighteen years since the last Magdalene Laundry closed. It is thirty years since Ann Lovett’s body was found by a grotto. It is approximately twenty years since the last symphysiotomy was performed. It is a year since the Walsh Report into the practice of symphysiotomy at the maternity units in the Greater Dublin Area was published. It is four years since the death of Bimbo Onanuga (whose partner was informed her cries of pain were “exaggerated”) of a ruptured uterus. It is two years since the death of Savita Halappanavar of sepsis. It is one year since the deaths of Sally Rowlette and Dhara Kivlehan (whose husband was told it was hard to tell if she had jaundice because she was Indian) at Sligo General Hospital. It is six months since Ms Y first discovered she was pregnant and two months since she underwent pre-term induction. It is one year since the Protection of Life During Pregnancy Act passed into law. It is twenty years since the X case, sixteen years since Miss D discovered her baby had fatal foetal abnormalities and six months since the UNHCR described Ireland’s historic treatment of pregnant women as “degrading and inhumane”. Continue reading “The Shape of Maternity: Recommendations for Reform in Maternity Care #repealthe8th”

The Shape of Maternity: Recommendations for Reform in Maternity Care #repealthe8th

Young Women and Abortion #repealthe8th

Young Women and Abortion

Introduction

Despite the fact that all the cases which have come before the Irish courts on the question of abortion and the correct interpretation of Article 40.3.3 have involved young women, there has been very little analysis of the rights of such women to access maternity care and make decisions in relation to their reproductive rights. This short piece will try to explore the current legal position in relation to young women. Given the peculiarity of the position of young women in care, this situation will also be discussed in detail. Continue reading “Young Women and Abortion #repealthe8th”

Young Women and Abortion #repealthe8th