Repeal or Replace?

Fiona de Londras | @fdelond

There is going to be a referendum on the 8th Amendment in 2018. That much is clear. What we don’t yet know is what proposition will be put to the people. In part, this is because the Citizens Assembly recommended that Article 40.3.3 “should be replaced with a constitutional provision that explicitly authorises the Oireachtas to legislate to address termination of pregnancy, any rights of the unborn and any rights of the pregnant woman”. In doing this, it is very clear that the Assembly was concerned to ensure that the Oireachtas would have the power to introduce wide-ranging abortion law reform should it wish to do so; this is evident from the legislative recommendations it then went on to make. Whether the Assembly meant that the Oireachtas should be given an express power to legislate, or whether it meant that the Oireachtas should have the power to create law that would be immune from constitutional challenge is unclear: I discussed this here. What is clear, though, is that the Assembly wanted there to be no dispute about the power of the Parliament to make law for abortion. Why, then, did it recommend repeal rather than replace? Continue reading “Repeal or Replace?”

Repeal or Replace?

An Abortion Law Immune from Constitutional Review?

Fiona de Londras @fdelond

In yesterday’s hearing of the Committee on the 8th Amendment to the Constitution talk turned to the idea that a new constitutional provision might be crafted and introduced which would provide that any law on abortion would be immune from constitutional challenge. In his presentation to the Committee, David Kenny made it clear that this was what he took the Citizens’ Assembly to have meant by its recommendation. In my evidence I posited a different interpretation, namely “as a proposal designed to make explicit the power to legislate for abortion to the extent recommended in the legislative proposals made by the Assembly”. On reflection, either understanding is probably sustainable. Reading the transcripts of the Assembly again, I still consider that the concern with ensuring the Oireachtas had “exclusive” competence to make law for abortion was intended to ensure absolute clarity about the power to legislate for the issue, but it could also be interpreted as saying that in doing so the Oireachtas should be empowered to make a law that would be immune from constitutional review. If the latter interpretation were pursued, would this be desirable and what would be the implications? Continue reading “An Abortion Law Immune from Constitutional Review?”

An Abortion Law Immune from Constitutional Review?

Ireland’s violation of International Abortion rights: A perpetual Déjà vu.

We are pleased to welcome this guest post from Aisling McMahon and Brid Ni Ghrainne.

Abortion is only permitted in Ireland when the life of the mother is in danger, making the Irish abortion framework one of the most restrictive in the world. This week, the Committee Against Torture questioned Ireland about its lack of progress in reforming Irish abortion law[1] and stated that it must explain its human rights obligations to the Irish public before any referendum on abortion.[2] This comes as little surprise as the Irish framework has previously been criticised extensively by four other international human rights committees.[3] The Human Rights Committee has twice found – in Mellet v Ireland[4] and Whelan v Ireland[5] – that Ireland violated Art 7 (right against torture, inhumane or degrading treatment), Art 17 (right to privacy) and Art 26 (right to non-discrimination) of the International Covenant on Civil and Political Rights (ICCPR) for not providing access to abortions to women whose pregnancies suffered fatal foetal abnormalities. The Committee on the Elimination of Discrimination against Women, the Committee on Economic, Social and Cultural Rights, and the Committee on the Rights of the Child have also urged Ireland to change its restrictive abortion framework.

However, no changes have yet occurred. Instead, in response to the decision in Mellet v Ireland the then-Taoiseach Enda Kenny dismissed the Human Rights Committees’ views as not being ‘binding’ and ‘not like the European court’.[6] This exemplifies the confusion that exists regarding Ireland’s international law obligations relating to access to abortion. In response to these recent developments, this post considers: (1) why Ireland should adhere to the views of the respective Committees, and (2) how Ireland can bring its laws into conformity with international law. Continue reading “Ireland’s violation of International Abortion rights: A perpetual Déjà vu.”

Ireland’s violation of International Abortion rights: A perpetual Déjà vu.

The Citizens Assembly Proposals: A Draft Bill

Lawyers for Choice has produced a draft bill that gives effect to the Citizens’ Assembly’s recommendations for abortion law reform. The purpose of the Bill is to codify the Assembly’s proposals, and to show how simply and easily that can be done. The provisions reflect the choices of the Assembly members’ and not those of Lawyers for Choice.

Regrettably, the Assembly’s deliberations on legislation were confined to grounds for accessing abortion only. Experience worldwide shows that, even where grounds are well-drafted, abortion can be difficult to access. The Oireachtas must pay attention to barriers to access such as obstructions outside of clinics, the circulation of misleading information on abortion, underfunding of services, and conscientious objection. Any final legislation must make provision for these matters.

In addition, we regret that the Assembly was unable to consider the decriminalisation of abortion, which is clearly required by international human rights law. Continue reading “The Citizens Assembly Proposals: A Draft Bill”

The Citizens Assembly Proposals: A Draft Bill

#Strike4Repeal: Strike Against the Citizens’ Assembly?

This International Women’s Day sees women worldwide engaged in strike action. Irish women strike for repeal of the 8th Amendment: the constitutional provision which prohibits abortion except where the pregnant woman’s life is at risk, and the only means of avoiding that risk is to terminate it. But more than that, the law pledges the state to protect the right to life of the ‘unborn’, from the moment of implantation, against the actions of the woman who carries it. In recent years, this law has been used  to delay medical treatment to a woman suffering an inevitable miscarriage at the cost of her life; to keep a woman’s body on life support after brain-death in an attempt to prolong her second trimester pregnancy to viability;  to  forced Caesarean section on a young suicidal rape victim; to deny countless women the right to refuse a wide range of interventions in pregnancy and birth.  

Fearful expulsion is the abortion law’s most ordinary side-effect. Women needing abortions – perhaps a dozen a day – travel abroad, while others perform early medical abortions at home. Irish women save to pay for their own abortions: for travel, accommodation and medical fees. In the time it takes to save, they find that they need more expensive abortions because their pregnancies are further along. The abortion regime also depends on women’s ability to access abortion out of sight; whether by travelling abroad or by procuring one in secret at home. Some solidarity is available for funding, but nobody can buy you time.  On and off the job, abortions mark working time. Women plan abortions for weekends, ‘sick days’, paid and unpaid ‘holidays’. By taking women’s bodies out of the workplace for a day, this strike underscores not only the importance of reproductive labour in general, but these specific relations between work and managing and undoing unwanted pregnancy.

The publicness of this strike is an important counterweight, not only to the secrecy of travel and of home abortion, but to the shaming and silencing on which effective regulation of women’s reproductive lives depends. It makes visible many of the networks of care and solidarity which allow women to survive that silencing and shame. And in a week which saw yet another official ‘rediscovery’ of the recent brutal history of incarceration of unmarried pregnant women in Ireland in institutions which set store by the the terms of women’s assembly in church, in religious parades and in the streets, the importance of this black-clad public assembly, this unexpected return, cannot be overstated.

But Strike for Repeal is also about law-making. The strike is framed as a response to the government’s failure to call a referendum by March 8th. There is clear and growing public demand for liberalisation of the law. Left-wing TDs have repeatedly asked for an immediate response to that demand: not only in the shape of a referendum, but of a softening in the worst effects of the abortion regime, by reducing criminal penalties, regulating exploitative bogus pregnancy counselling and providing some relief for women whose foetuses are diagnosed with fatal foetal anomalies. The government has repeatedly blocked these demands. It installed the Citizens’ Assembly as a precursor to any legislative deliberation on the prospect of constitutional change. The Assembly consists of a judge (an ‘appropriate woman‘) and  99 citizens chosen by a polling company; supposedly representative of the people in terms of gender, age and geography. It is an exercise in ‘deliberative democracy’ designed to produce ‘vital consensus on behalf of us all’. However,  the government has made no firm commitment to implement the Assembly’s recommendation. These  will likely be filtered through further committees. No timeline has been set for proposal of a final reform bill. A popular referendum is not expected until 2018 (coinciding, of course, with a Papal visit). The strike protests delay: the refusal to recognise the abortion issue as urgent. That denial of urgency must be understood in the context of a broader attitude to law-making. The government presents aching slowness and caution as essential to any legal change on abortion  because it is understood as an issue of unique moral weight. The judge-led Assembly embodies a desire to discipline processes of legal change, ensuring an incrementalist approach which is presumptively civilised and civilising, never destabilising, immune to popular politics.

What the government calls disciplined law-making has two characteristics: ‘neutrality’ and ‘balance’. A concern for neutrality ensured that no lawyers who had expressed an opinion on the Irish abortion debate were invited to present to the Assembly, or appointed to the panel of academics which advised the Assembly on the selection of expert speakers. When the Assembly received over 13,000 written submissions, neutrality apparently justified the decision to select 300 at random for the Assembly members to read, without regard for content or repetition. ‘Balance’ means something more than impartiality. Speakers, whether advocates or experts, generally appeared in pairs: pro-choice and pro-life. Balance, then, is always binary. Presentations of the law, interestingly, were not made in pairs. Perhaps, once experts in abortion law had been excluded from Assembly proceedings, no balance was required in this respect. The perceived need to ‘balance’ presentations allowed ample voice for pro-life and conservative religious organisations and speakers, well in excess of their support among the broader population. In the process, it obscured the pluralism of the pro-choice majority. The Assembly heard, not only from pro-life medical ethicists and religious leaders, and Irish conservative organisations, but from prominent American pro-life activists, chosen by Irish organisations to speak in their place. Meanwhile, several Irish pro-choice advocacy groups were excluded, including important representative organisations for women who have had abortions, such as the Abortion Rights Campaign, and Termination for Medical Reasons Ireland. No organisation representing women of colour was invited to speak. When the Assembly heard women’s scheduled direct accounts of abortion, it was not in person, but in the form of short, edited and anonymised audio recordings of interviews with women who had ended pregnancies in a narrow range of circumstances. For ‘balance’, some of these recordings were of women who had not ended their pregnancies.  By adopting ‘neutrality’ and ‘balance’ as lodestones of the process, the Assembly suggests that the statements and presentations made to Assembly members are all equally valid and valuable found objects, which speak for themselves, rather than contested and contestable political artefacts created for and by the Assembly. In particular, non-interventionist neutrality ensures that the Assembly operates without any ‘fact checking’ resources. So, by and large, the members are left to weigh presentations and submissions for themselves, or  rely on other speakers to devote some of their allocated time to correcting misrepresentations. Several members of the Assembly have asked penetrating, and at times critical questions, and recently indicated support or displeasure through spontaneous applause. Some women speaking before the Assembly have also been able to subvert the imposition of particular forms of civility.Watch, for example, the gesture of Sinead Redmond of Parents for Choice giving her testimony with her baby daughter; their own pairing gently provoking conservative conceptions of the incompatibility of motherhood and choice. However, these moments of substantive critical agency  are just that – performative moments – which occur in spite of, rather than because of the formal Assembly process.

It may be that the Citizens’ Assembly process is supposed to reassure women. It is supposed to remind us of the Constitutional Convention, which we are assumed to remember as the liberal pump-primer for Marriage Equality. Watching the Citizens’ Assembly meetings over the last 4 months, I have been reminded of other antecedent processes established to address historical gender-based violence against women – also judge-led; also scrupulously careful to restrict space for women’s direct testimony; also insufficiently critical of narratives that seek to justify and legitimate treatment which women call injury and harm; also designed to settle, neutralise and rebalance women’s claims to reparative and transformative reproductive justice. The Assembly, on this reading, reinforces an expectation that women are not entitled to appear before law on their own terms, even where law is to be applied to the most intimate dimensions of their lives.

Jon Berger wrote that mass demonstrations were not, as is often commonly thought, an attempt to convince the state to change a hated policy. Instead, they artificially created events, separated from everyday life, which ‘express political ambitions before the political means necessary to realise them have been created’. The state’s response to these ambitions does not matter very much. What matters is that those participating, and those sympathetically witnessing the demonstration become more aware of their shared purpose and fate; feel themselves standing together against the state’s projects. Berger argues that demonstrations are ‘rehearsals of revolutionary awareness‘; they may foreshadow revolution, or perhaps revolutionary return of something suppressed. Strike 4 Repeal is a complex movement. In its demand for an immediate referendum, it enacts a struggle for law: it is a necessary agonistic demonstration of appetite for law and law-making processes which are not contained by appeals to balance and neutrality. It is a warning of the impossibility of suppressing women’s diverse and complex demands for legal change and a rejection of past governmental tactics of repression and control. Women gather in black today at 12.30.The recent work of Jesse Jones on gender, reproduction and Irish law references an Italian feminist protest chant which captures the possibilities: “Tremble, tremble, the witches have returned!” 

#Strike4Repeal: Strike Against the Citizens’ Assembly?

The HRC’s Decision on Ireland’s Abortion Law: Is a Referendum Now Required?

In a decision that will not have come as a surprise to those who are attentive to either international human rights law or abortion law in Ireland, the UN Human Rights Committee has found that the applicant, AM’s, rights under the International Covenant on Civil and Political Rights were violated by her having to travel for an abortion in a situation of fatal foetal abnormality. The decision itself merits analysis, and the concurrence of Prof Sarah Cleveland is especially powerful. However, in this short post I want to assess the implications of this decision for constitutional politics in Ireland.

The government argued (as it has done before) that the Constitution reflects the will of the People on a question of moral significance and disagreement. This is summarized in para 4.2 of the opinion:

The State party asserts that article 40.3.3 of the Constitution represents the profound moral choices of the Irish people. Yet, at the same time, the Irish people have acknowledged the entitlement of citizens to travel to other jurisdictions for the purposes of obtaining terminations of pregnancy. The legislative framework guarantees the citizens’ entitlement to information in relation to abortion services provided abroad. Thus, the constitutional and legislative framework reflects the nuanced and proportionate approach to the considered views of the Irish Electorate on the profound moral question of the extent to which the right to life of the foetus should be protected and balanced against the rights of the woman.

Whether one agrees with this representation of what the various referenda in question actually say about the will of the people (and this is subject to dispute), the key point here—and the Committee made this quite clear—is that lawfulness in domestic law does not excuse, nullify, or even mitigate unlawfulness in international law. In other words, from an international law perspective, the fact that this is a constitutional position does not make any real difference to its acceptability. A violation of international law still arises, and it is one that the state is required as a matter of international law to resolve.

Here, of course, is where the fact that this is a constitutional (rather than a merely legislative) position does pose a challenge. In Ireland, as is well known, the Constitution can only be formally amended by a referendum of the People. Thus, if the Constitution does prohibit abortion in cases of fatal foetal abnormalities, and if that puts Ireland in violation of its international obligations, then a referendum is the appropriate vehicle to resolving that dispute.

This is tricky. Governments cannot guarantee that the conflict between the constitutional standard and the international standard will be resolved; they cannot copper fasten the outcome of the referendum. Where a referendum to ensure compatibility with international standards is unsuccessful, the state remains in violation although it can at least claim that reasonable efforts to resolve that violation have been made. In the absence of a referendum, however, no such claim can be made.

In fact, a failure to hold a referendum both torpedoes the claimed justification for the incompatibility and reveals an unwillingness to resolve that incompatibility. That is, unless a referendum is held to ensure the availability of abortion in cases of fatal foetal abnormality the state can neither justifiably claim that it is the will of the people to maintain a ban on such abortions notwithstanding incompatibility with international human rights law, nor claim to be hand-tied in terms of resolving that incompatibility.

Thus, if it really is the case that the 8th Amendment prohibits such abortions a referendum is unavoidable from an international law perspective. That is not because international law can force a state to hold a referendum, but rather because (a) the incompatibility flows from a constitutional provision, and (b) the only means of constitutional change is by referendum.

It is worth noting that it is not at all clear that Article 40.3.3 really does require the criminalisation of abortion in cases of fatal foetal abnormality. We know that the provision does not require any activities that are futile, and that the foetal right to life is both to be balanced against the right to life of the pregnant woman and protected only as far as practicable. It is quite within the capacity of the Government to amendment the Protection of Life During Pregnancy Act 2013 to allow for abortions in these cases, and allow the Supreme Court to assess the strength of the arguments in favour thereof from a constitutional law perspectives. Certainly, there would be difficulties with this—the Government would have to reverse its long-standing position, the Court would be asked to revisit a deeply contentious judgment (AG v X) and assess the extent to which it is a conclusive statement of the meaning of Article 40.3.3, and arguably the common understanding of the provision in question is that it does prohibit such abortions so that there would be a clear concern about subverting the Constitution. A referendum might, thus, be preferable.

But one thing is sure, this decision reinforces the position long-held by many: Article 40.3.3 is unsustainable, unsuitable, and incompatible with human rights. A referendum is urgently required.

This post is by Professor Fiona de Londras, University of Birmingham School of Law. She can be contacted by email at f.delondras[at]bham.ac.uk 

The HRC’s Decision on Ireland’s Abortion Law: Is a Referendum Now Required?

The Labour Party #repealthe8th Proposals: An Analysis

By Professor Fiona de Londras, University of Birmingham | E: f.delondras@bham.ac.uk | T: @fdelond

Today the Labour Party became the second party to outline its plans for repeal of the 8th amendment and the possible legislation that would follow constitutional change (the first was the Green Party, whose proposals I analysed here). The proposals seem to have temporarily disappeared from the Labour page, but the Heads are uploaded here.

I must start this post by saying that, together with nine others (Mairead Enright, Vicky Convway, Mary Donnelly, Ruth Fletcher, Natalie McDonnell, Claire Murray, Sheelagh McGuinness, and Sorcha uí Chonnachtaigh) I was involved as an independent expert in the Labour Women Commission on Repeal of the 8th Amendment. This Commission comprised a political group, a medical group, and a legal group. Our job, as the legal group, was to propose a piece of law that might act as a “model” for post-amendment legislating, listening to the views of the medical experts and feeding into the political decision-making processes of the political group.

Our involvement did not mean that the political group would automatically endorse our proposals, or that the Labour Party’s policy objectives would determine our proposals. Inevitably, the context in which we undertook the task of drafting such a law informed our approach to it, and we explain the thinking behind our draft law here. The draft law itself was published open access here. As is clear from the analysis that follows, the final proposals from the Labour Party adopt some, but not all, of what we proposed (just as the Green Party proposal did), and we all remain at the disposal of other political parties to discuss the proposals as they (we hope) formulate their policies on abortion coming up the general election. Continue reading “The Labour Party #repealthe8th Proposals: An Analysis”

The Labour Party #repealthe8th Proposals: An Analysis

The Green Party’s Reproductive Rights Policy: An Appraisal

By Professor Fiona de Londras, University of Birmingham E: f.delondras@bham.ac.uk T: @fdelond

The Green Party has released a reproductive rights policy in advance of the general election. The policy is very welcome, and is a further indication that reproductive justice is likely to be a central issue in the forthcoming election. The policy is especially interesting in that it speaks to a broad reproductive rights policy, endorsing better maternity care and more choice in maternity and birthing options, and committing to access to safe and affordable contraception, which is a very welcome development. The publication of this policy also speaks to the Green Party’s decision to support repeal of the 8th Amendment by means of a referendum, although its support is given “on the condition that the Government have provided draft legislation which will be put in place if the referendum passes”. It is on this proposed law that I want to concentrate here. Continue reading “The Green Party’s Reproductive Rights Policy: An Appraisal”

The Green Party’s Reproductive Rights Policy: An Appraisal

An IHRL-compliant post-8th Amendment Abortion Law for Ireland. #repealthe8th

The open-access journal feminists@law has today published the general scheme of the ‘Access to Abortion Bill 2015; a piece of model legislation drafted by a group of feminist academic lawyers and intended to regulate abortion in Ireland after repeal of the 8th Amendment.

The authors are: Mairead Enright, Fiona de Londras, Vicky Conway, Mary Donnelly, Ruth Fletcher, Natalie McDonnell, Sheelagh McGuinness, Claire Murray, Sinead Ring and Sorcha Ui Chonnachtaigh.

  • The model legislation is here.
  • A short paper placing it in its constitutional and statutory context is here. This blogpost draws on that paper.

The legislation was originally drafted for Labour Women, which established a Commission for Repeal of the 8th Amendment in late 2014. Part of the work of that Commission was to produce proposed legislation which could regulate  abortion in the event that the 8th Amendment was removed from the Constitution. The Commission comprised three groups: a political group, a medical group, and a group of legal experts. The authors of this paper are those legal experts. Although drafted as part of the Labour Women Commission, and with some (limited) input from the other Commission groups, the proposed draft is that of the authors of this paper (working within the confines of our remit as ‘legal experts’ to the Commission) and not of the Labour Party or of Labour Women. It has not been adopted by the Labour Party or by Labour Women.

In drafting, we were guided by four principles.

  • First, and perhaps most importantly, we were determined to design a law that would regulate abortion in Ireland by primary reference to the bodily integrity, welfare, agency, autonomy and self-determination of pregnant women while still recognising a public interest in preserving foetal life where possible, with the pregnant woman’s consent. By achieving this, we hoped to express a legislative commitment to no longer viewing a pregnant woman’s body as the mechanism by which the State fulfils its perceived responsibilities towards the foetus, but rather as the body of a woman who maintains her agency and her constitutional rights notwithstanding her pregnancy. In that sense, we proposed a piece of law, which would aim to be transformative, to a significant degree, of the prevailing discourse around Irish abortion law. The point is not that we think foetal life is unimportant. Rather, we wanted to show what woman-centred abortion legislation would look like in an Irish context.  To that end, we inserted key Guiding Principles in Head 3 that should be applied whenever the legislation is being interpreted or applied. These radically shift the approach to abortion from that the status quo. Head 3 provides:

(1) Access to abortion is guaranteed in accordance with the provisions of this Act.

(2) In making any decision under the Act, or in providing medical care and services under this Act, the Heads shall be interpreted in the manner most favourable to achieving positive health outcomes for the pregnant woman, and to the protection of her rights, including the rights to:

a. life;
b. freedom from torture, cruel, inhuman and degrading treatment;
c. bodily integrity and autonomy;
d. self-determination, including the right to informed decision-making in relation to medical treatment;
e. private and family life, including the right to privacy;
f. health, including the right of access to appropriate health-care in a safe, prompt and timely fashion, and the right of access to healthcare information.

(3) Access to abortion services will not be impeded because of race, sex, religion, national, ethnic or social origin, disability, HIV status, marital or family status, immigration status, sexual orientation, age, birth or other social status.

(4) Sustaining embryonic and foetal life in pregnancy is an important social role, which should be voluntary and consensual.

That said, this is not pro-choice legislation in the ‘free safe and legal’ mould, not because the authors are not pro-choice (we are), but because we were drafting for the Labour Party, which is not, as yet, committed to providing free, safe and legal abortion after repeal of the 8th Amendment. (The explanatory notes to the draft legislation highlight points at which we feel the legislation may be too conservative). Bearing in mind the restrictions entailed in drafting abortion legislation for a political party in Ireland at the time, we strayed beyond mainstream political consensus to the extent that we felt European and international human rights law clearly enabled us to do. As such, we suggest that our draft law may represent a useful yardstick against which to measure later legislative proposals by a future Irish government.

  • Second, the proposed law designates grounds for abortion which, to a significant degree, challenge the mainstream consensus on what a new Irish abortion law should contain. Politicians advocating for reform have tended to accept that a new law should permit abortion not only on grounds of risk to the life of the woman, but on the grounds that the pregnancy has come about through incest or rape, or that the foetus is incapable of surviving outside the womb. There is also some agreement that abortion should be available on a limited ‘health’ ground – certainly one which would reassure doctors that they could act to end the pregnancy of a seriously ill woman whose life is not at risk. Our proposed grounds go somewhat beyond such mainstream consensus. In particular :
    • we do not provide for a separate rape ground, in order to avoid any suggestion that a woman should be required to prove that she has been raped or to participate in any criminal process;
    • we provide for two health grounds: a simple one applicable in early pregnancy, and a requirement to prove severe or disabling damage to health in later pregnancy and
    • we do not confine the foetal anomaly ground to situations in which the foetus is certain to die within the womb if the pregnancy continues.
  • The proposed law aims to enshrine an approach to medical practice that replaces pro-natalist paternalism with a welfare orientation, seeing the pregnant woman as the patient and abortion as a medical procedure. This is intended not only to nudge a reorientation of Irish maternal medical practice, but also to empower medics to follow the course of medical treatment that they believe is best for their primary patient (i.e. the pregnant woman) as determined by doctor and patient together.
  • We were concerned that the legislation should ensure—to the extent possible—that abortion is actually available in practice, while also respecting the deeply held convictions of members of the medical profession and of the public in respect of the status of the ‘unborn’.This was of fundamental importance. It is quite clear that the legal availability of abortion can be frustrated by harassment, unregulated conscientious objection, and failure to provide services. In order to try to achieve this we focused on three areas: conscientious objection, provision of services and protection of locations in which services are provided, and review of negative decisions as to the availability of abortion in any particular case.

We have published our proposals on an open-access basis for discussion, debate and development by all interested parties.

An IHRL-compliant post-8th Amendment Abortion Law for Ireland. #repealthe8th

Law, disobedience and 'the abortion pill'. #abortionpilltrain

Earlier this week, a small number of women and men re-staged the ‘Contraceptive Train’ of 1971 as an ‘Abortion Pill Train’. A group organised by ROSA, Re(al)-Productive Health, Action for Choice and the Socialist Party travelled to Belfast, where they collected pills ordered from Women on Web and delivered to friends’ addresses in the North.  On return to Connolly Station in Dublin, 10 women took the pills in public, to demonstrate their safety, and explained their actions to the assembled crowd. The video above is by Paula Geraghty, there are some great photographs of the train journey here and video of the protest here. In going to the North, the train mimics a trip frequently undertaken by Irish women. Women on Web do not supply the pills directly to Ireland because the state has become so good at confiscating them. In order to obtain them, you must be able to provide an address in another jurisdiction, typically Northern Ireland, and arrange for them to be collected. No attempt was made to arrest those who travelled on the train, or to seize the pills, and there was no anti-abortion counter-protest.

The Guardian erroneously reported that the train collective had bought their pills from the Marie Stopes clinic, but they are not readily available for purchase in Northern Ireland. As Alliance for Choice remind us, women using them in Northern Ireland do so under the cloud of potential prosecution. Readers may remember that in March 2013 Alliance for Choice highlighted this position by publishing an open letter in which 100 women and men testified that they had used pills to induce an abortion themselves, or had helped someone else to do so.

The pills the train imported are used for early medical abortions. Their use is not a new phenomenon in Ireland. For further details on how they work, see here, here,  here and here.  Buying them is, of course, much cheaper than travelling abroad for a later abortion (though arranging to collect them from a Northern Irish address is not easy for everyone). This matters deeply when we consider how families are affected by the politics of austerity. But the pills are also more accessible precisely because they can be used in most cases without intensive medical supervision, in private. Regulatory regimes for their use vary significantly from jurisdiction to jurisdiction. However, in the UK, BPAS has been campaigning for some time for amendments to the existing abortion legislation to allow women to take them in their own homes rather than travelling repeatedly to a clinic. The majority of women who use pills procured from Women on Web are able to use them safely (see, for example, this story from The Examiner). The earlier they are used, the safer and more effective they are. However, complications are possible in rare cases even when they are used properly (leaving aside the issue of purchase from unscrupulous providers and use of inappropriate drugs). For example a very small minority of women – about 1% – may experience heavy bleeding requiring medical attention. The Ray D’Arcy show on Today FM recently broadcast a letter from a woman who had experienced two weeks of severe bleeding after inducing a miscarriage using misoprostol purchased in a pharmacy. ((Misoprostol is available from pharmacies in Ireland as a medicine for symptoms of rheumatoid arthritis. It is also used in Irish hospitals in the medical management of miscarriage. It can be used to terminate a pregnancy on its own but it is safer to use it with mifepristone, or RU 486. Mifepristone is a steroid which can be used to induce labour after foetal death in utero. Since 2003, special recording obligations  apply to its supply and administration in Ireland, and it is not available in ordinary pharmacies. )) Cases like this one do not demonstrate that the current criminal prohibition on use of the pills is justified. Neither do they show that an intensive regime of scrutiny and surveillance must be established before their use could be legalised in Ireland. Rather they demonstrate the importance of making medical assistance accessible to women in those cases where it becomes necessary. They also show up, yet again, the stress, denial of information, inhibition of access to medical treatment and outright emotional isolation which a regime of criminalisation imposes on women in need of abortions. As Mary Favier of Doctors for Choice has said, stigma means that women often delay visits to the doctor even where an abortion has resulted in complications. To accuse the abortion pill train protestors of ‘dangerous’ behaviour in taking the pills ignores the state-supported structures of stigma and neglect which amplify the very small risks inherent in taking these pills properly.

The abortion pill train is a collection of small illegal or quasi-legal acts which individual Irish women commit on a  regular basis. The protest not only breaks several of the abortion laws, but shows up the spaces in which they are already broken: in which they are porous, not enforced, practically or politically unenforceable, or just about surmountable if you have the resources, the courage, the knowledge and the time.

  • Taking the pills: A woman who is not pregnant and consumes an abortifacient in Ireland commits no offence under the PLDPA 2013.  A pregnant woman successfully using the same pills to successfully terminate her pregnancy might be guilty of the offence of ‘intentional destruction of unborn human life’ under s. 22 of the Act. The heft of this new offence is  difficult to gauge. There is no doubt but that women using Women on Web’s services in Ireland may understand themselves to be staring down the barrel of 14 years in prison. In theory, an individual supplying these pills to a woman for the purposes of ending her pregnancy, or being reckless as to whether she might use them for that purpose, might also come within the scope of inchoate offences (attempt etc) under s.22.  There are significant evidentiary difficulties inherent in applying these sorts of offences to early medical abortion. A prosecution can only be brought at the instance of the DPP, who will not prosecute unless there is sufficient evidence to justify it, and if a prosecution is in the broader public interest.  In the face of suggestions from within his own party that the criminal penalty for this offence be reduced to 5 years, the Minister for Health in debating the Bill suggested that the maximum 14 year prison sentence provided for under the Act was intended for the ‘back street operator who was a recidivist carrying out dangerous procedures on vulnerable persons’ – we might speculate as to whether a woman performing an early medical abortion herself would ever receive such a sentence. That said, cases like those of Ms Y and Ms X demonstrate the risks of a certain kind of zeal in enforcing the letter of the law – we can imagine a woman being prosecuted for using pills for an early medical abortion, or being caught up in another’s prosecution. And that imaginary has its own effects.
  • Importing the pills: Both misoprostol and mifepristone are controlled drugs under the Medical Products Regulations 2003. Pills sent in the post are routinely seized on importation by the HPRA and Revenue and Customs – as noted already this programme of seizures has been effective enough to convince Women on Web to effectively cease direct supply to Ireland. The Revenue’s enforcement officers are empowered under the Customs Consolidation Act and the Irish Medicines Board Act 1995 to detain and ultimately seize and destroy them, just as they are empowered to seize medicines found on your person or in baggage at a border. A prosecution is unlikely to result from seizure of a single package. Bulk importation is another problem. In January 2011, Fang Huang was convicted in the District Court of importing mifepristone from China and supplying it to women from a Parnell St Supermarket. Very little information is available about the prosecution. She was fined €5,000 –  €500 for each of 10 charges. The Irish Medicines Board initiated the prosecution.
  • Advertising Women on Web/informing women on how to use the pills: In theory, speaking about, or advertising, or putting up stickers about Women on Web, or carrying a banner with their web address contravenes the Regulation of Information Act 1995. Offenders are liable to pay a fine of up to IR£1500.  Advertisement and public speaking are not the same as one-to-one counselling, which is much more tightly controlled by s. 5 of the Act. A  sticker or notice advertising Women on Web in a public place clearly breaches s.4 of the Act: in the terms of the legislation, this is acceptable because the passerby has not voluntarily sought the information out. Where the information is given at a public meeting, or in a television broadcast, the law is less clear. Under s.3 of the Act, it is permissible to provide ‘Act information’ in these contexts if two conditions are satisfied. First, the information must relate ‘only to services which are lawfully available in [a particular] place and to persons who, in providing them, are acting lawfully in that place’. The language of the Act pre-dates transnational online services like Women on Web or Women Help Women, which rely on co-operative networks of agents in several jurisdictions. It is difficult to tell how it applies – in what ‘place’ is the service ‘available’ if the pills are ordered online in Ireland, under the remote guidance of a doctor in Austria via a website hosted somewhere else, supplied from India and finally consumed in Ireland with the guidance of a telephone counsellor in the Netherlands? In 2010, Women on Web, responding to a challenge from the Irish government, obtained a ruling that remote supervision of abortion was not illegal in Austria. The second provision is more problematic in the context of the abortion pill train – the information cannot be accompanied by advocacy or promotion of termination of pregnancy. As always, invoking the Act in any kind of public speech context only serves to highlight the impossibility of enforcing it while maintaining the possibility of informed debate about abortion service provision. Again, we have to wonder whether the DPP could find that the public interest is served by prosecuting activists in this sort of case.

Naturally, there are political risks inherent in choosing law-breaking as a method of protest. In pursuing this kind of disobedience, the protest dares the state to act, or highlights the effects of its inaction. (Ruth Coppinger’s action as a TD -the only woman of three TDs who travelled- in taking the train and publicly taking the pill is particularly interesting in this respect.) There is the danger of drawing official attention to the methods which women and networks of activists such as Women on Web use to cope with the prevailing legal regime, of misleading women into thinking that the law is more easily circumvented than is actually the case, or of provoking conservative disapproval and backlash.

There is also still a sense of the scandalous in law-breaking. Some activists expressed discomfort with the choice of date for the protest – the train returned home a few hours before the vigils held to remember the death of Savita Halappanavar in October 2012. My own view is that there must be a place for both vigils and civil disobedience in abortion protest, particularly when we consider the ways in which the Irish law and politics of abortion have manipulated the deaths and suffering of ‘deserving’ women in order to silence ‘improper’ voices. But then, I write that with the comfort of distance.

It is only a little bit surprising to see sharp distinctions drawn between the contraceptive train and the abortion pill train. The action undertaken by 47 women from the IWLM seems comparatively uncontroversial now because the purchase of contraceptives was not illegal in Northern Ireland in 1971,  the IWLM never went as far as to demand abortion access, and in the end (though this was not revealed at the time) those who travelled bought aspirin instead of the contraceptive pill because they did not have prescriptions. Crucially, the train seems so far in the past, and the rightness of the action so obvious in hindsight that it has lost any controversial political bite. Even David Quinn can invoke the condom train now. Perhaps that is why we so readily remember the train, and forget, for example, Women on Waves’ visit to Dublin, or the Sister Ship (just to name transport-themed reproductive rights protests…). The original train was less tame than this public chooses to remember.  It was decades before access to contraception was fully liberalised in Ireland. The women in 1971 knew there would be a moment of confrontation with customs officers when they returned to Connolly, they worried about the possibility of arrest, and they had prepared tactics – including outright mockery of the customs officers – to adopt if they were challenged. June Levine in her memoir Sisters documents that each woman had been issued with a leaflet prepared in advance by Nell McCafferty and Mary Anderson – every woman was to be issued with a pill. They were to  declare their pill to the customs officers and then swallow it. It is instructive to remember that the contraceptive train in 1971 also sparked divisions with the Irish Women’s Liberation Movement. Nuala Fennell, more interested in institutional reform than in protest,  thought it was one in a series of counterproductive stunts ((June Levine, Sisters; Diarmuid Ferriter, Ambiguous Republic)) Mairin de Burca stayed at home to organise the welcome party, because she felt that it would be off-putting for rural women to see single women involved in importing contraceptives. Other single women travelled. ((Ann Stopper, Monday’s at Gaj’s; Mary Kenny, Something of Myself and Others)) On the train on the return journey to Dublin, June Levine writes, a common sentiment was; “Our mothers will kill us!”. ((June Levine, Sisters.)) The women chanted that the law was obsolete, but they also had to negotiate the costs of proving it, and they marched out into Connolly station to the tune of ‘We Shall Overcome’. Perhaps some day, we will see the abortion pill train invoked as the acceptable historical opposite of some new radical act of ‘attention-seeking’.

Law, disobedience and 'the abortion pill'. #abortionpilltrain