CCJHR Seminar: ‘Abortion Secrecy / Abortion Privacy – What’s the difference and why does it matter?’

CCJHRProfessor Carol Sanger, Barbara Aronstein Black Professor of Law,

Columbia University, NY

Discussant: Máiread Enright, University of Kent / UCC

June 6th 2014, 9.15am – 11am

Venue: Moot Court Room, 1st floor, Aras na Laoi,

(Law Faculty, U.C.C.)

 

Advance booking is not required. Continue reading “CCJHR Seminar: ‘Abortion Secrecy / Abortion Privacy – What’s the difference and why does it matter?’”

CCJHR Seminar: ‘Abortion Secrecy / Abortion Privacy – What’s the difference and why does it matter?’

Rights versus Remuneration: The English NHS and Abortion Services for Women from Northern Ireland

nhsWe welcome the following guest post from Sylvia de MarsSylvia is a Lecturer in Law at Newcastle University whose primary research interest is the interaction of EU free movement law with the organisation of public services in the Member States. She holds a PhD from the University of Nottingham.

Given that my  research considers the access rights of EU nationals to the English NHS, last week’s England and Wales High Court decision in R (on the application of A & Anor) v Secretary of State for Health didn’t come as much of a surprise, but remains regrettable. There are two dimensions to this case, which dealt with the question of whether or not Northern Ireland residents can obtain abortions with the English NHS free of charge.  The first dimension is a public law one, looking primarily at the organisation and funding of the healthcare services in the United Kingdom, and the second is a human rights one.  Continue reading “Rights versus Remuneration: The English NHS and Abortion Services for Women from Northern Ireland”

Rights versus Remuneration: The English NHS and Abortion Services for Women from Northern Ireland

Letter to the Irish Times on Abortion Legislation and Fatal Foetal Abnormalities.

The following letter to the Editor of the Irish Times was carried in the print edition of the newspaper (but not the online edition) on June 13th. We reprint it here for readers’ information.

Dear Editor,

We understand that the Minister for Health has been advised that it is not possible to include terminations for fatal foetal abnormality in the Protection of Life During Pregnancy Bill, 2013. With respect, our initial response is to disagree. It is possible to interpret Article 40 3 3 so that the ‘unborn’ that is protected therein does not include those foetuses with fatal abnormalities. The Irish courts have not considered this legal issue and there is no binding precedent excluding such an interpretation.

Moreover, the Legislature has the power, and the duty, to legislate under the Constitution. When Justice McCarthy criticised the Legislature for failing to regulate the terms of Article 40 3 3 in the X case in 1992, he was speaking of a duty that existed prior to that case. The interpretation and regulation of Article 40 3 3 is not limited to the circumstances which arose in X. That case showed how the general principle, of vindicating unborn life with due regard to the equal right to life of the mother, justified a termination in the particular circumstances of suicide risk. A different set of factual circumstances, such as those of fatal foetal abnormality, could also legally justify a termination of pregnancy given that these ‘unborns’ will not live once born. Therefore, it is within the Legislature’s power to act on this possibility and regulate for these circumstances.

The State used this legal argument to defend itself against the unsuccessful claim of Deirdre Conroy in the European Court of Human Rights, as she explained in The Irish Times on 31 May 2013. The High Court declined the opportunity to address this argument in D v HSE. The Court ruled instead that D, who was pregnant with an anencephalic foetus, could travel for a termination of pregnancy. The women of Termination for Medical Reasons, including Ruth Bowie and Arlette Lyons, have spoken publicly of being unable to access the healthcare they wanted in Ireland when their pregnancies were found to be unviable. In these circumstances, the Legislature has a moral as well as a legal duty to act now and include abortion for fatal foetal abnormalities within the Bill.
We urge the Minister to publish his legal advice on this issue so that it can be assessed and discussed. We ask the Minister to reconsider his position and to minimise the suffering of those women and couples who wish to end their unviable pregnancies at home.

Sincerely,

  • Ruth Fletcher, DJur, Senior Lecturer in Law, Keele University
  • Mary Donnelly, PhD, Senior Lecturer in Law, University College Cork
  • Mairéad Enright, MA, BL, Lecturer in Law, University of Kent
  • Eimear Spain, PhD, Lecturer in Law, University of Limerick
  • Jennifer Schweppe, LLM, Lecturer in Law, University of Limerick
  • Siobhán Mullally, PhD, Professor of Law, University College Cork
  • Fiona de Londras, PhD, Professor of Law, University of Durham
  • Fionnuala ni Aolain, PhD, Professor of Law, University of Ulster and Visiting Professor, Harvard Law School
  • Marguerite Bolger, MLitt, Senior Counsel, Law Library, Dublin
  • David Capper, PhD, Reader in Law, Queen’s University Belfast
  • Vicky Conway, PhD, Lecturer in Law, University of Kent
  • Louise Crowley, PhD, Lecturer in Law, University College Cork
  • John Danaher, PhD, Lecturer in Law, Keele University
  • Michael Doherty, PhD, Lecturer in Law, Dublin City University
  • Catherine Forde, BCL, Barrister at Law, Law Library, Dublin
  • Marie Fox, LLM, Professor of Socio-Legal Studies, University of Birmingham
  • Patrick Hanafin, PhD, Professor of Law, Birkbeck College, University of London
  • Maebh Harding, PhD, Senior Lecturer in Law, University of Portsmouth
  • John Harrington, BCL, Professor of Law, Cardiff University and Visiting Fellow, African Population and Health Research Centre, Nairobi
  • Barbara Hewson, MA, Barrister at Law, Lincoln’s Inn, London
  • Sarah Houlihan, LLM, Barrister at Law, Women’s Link Worldwide
  • Julie F Kay, Lead Counsel for A, B, and C in ABC v Ireland
  • Susan Leahy, PhD, Lecturer in Law, University of Limerick
  • Julie McCandless, PhD, Lecturer in Law, London School of Economics
  • Natalie McDonnell, MPhil, Barrister at Law, Law Library, Dublin
  • Sheelagh McGuinness, PhD, Research Fellow in Law, University of Birmingham
  • Kathyrn McNeilly, LLM, PhD candidate in Law, Queen’s University Belfast
  • Thérese Murphy, LLM, Professor of Law, University of Nottingham
  • Claire Murray, PhD, Lecturer in Law, University College Cork
  • Colin Murray, MJur, Senior Lecturer in Law, Newcastle University
  • Aoife Nolan, PhD, Professor of International Human Rights Law, University of Nottingham
  • Colm O’Cinnéide, PhD, Reader in Laws, University College London
  • Catherine O’Rourke, PhD, Lecturer in Human Rights and International Law, University of Ulster
  • Catherine O’Sullivan, DJur, Lecturer in Law, University College Cork
  • Sara Ramshaw, PhD, Lecturer in Law, Queen’s University Belfast
  • Sinéad Ring, PhD, Lecturer in Law, University of Kent
  • Fergus Ryan, PhD, Lecturer in Law, Dublin Institute of Technology
  • Yvonne Scannell, PhD, Professor of Law, Trinity College Dublin
  • Olivia Smith, PhD, Lecturer in Law, Dublin City University
  • Mark Tottenham, BA, Barrister at Law, Law Library, Dublin
  • Sorcha Uí Chonnachtaigh, PhD, Lecturer in Ethics, Keele University
  • Judy Walsh, LLM, BL, Lecturer in Social Justice, University College Dublin
  • Darius Whelan, PhD, Lecturer in Law, University College Cork

 

 

Letter to the Irish Times on Abortion Legislation and Fatal Foetal Abnormalities.

Is Article 8 ECHR the ‘Feminist Article’?

indexWe are very pleased to welcome this guest post from Helen Fenwick who is Professor at Durham Law School. Helen is an expert in civil liberties, human rights and counter-terrorism law. She is also an expert advisor for Liberty and has been involved in policy development at national and international levels.  This post is also published at Inherently Human

This post concentrates on Article 8 ECHR to argue that it can be viewed as sympathetic to feminist goals since, due to its particular ability to impose positive obligations on the state in relation to creating respect for private or family life, it can require the state to create curbs on the actions of non-state actors particularly adverse to women (eg. in relation to domestic violence: Hajduova v Slovakia) and ensure the efficacy of services that women in particular might need to access, such as to abortion (P&S v Poland). Women are, it is argued, more at risk than men from the actions of non-state actors within the private and family sphere (see intervention of Equal Rights Trust in Eremia and Others v Moldova on this point), so Article 8 has a particular pertinence for women, and unlike Article 14 (the guarantee of freedom from discrimination), which has not proved to have a strong impact as a means of advancing the interests of women due to its reliance on furthering formal equality (see eg Dembour Who Believes in Human Rights, Ch 7), Article 8 can address the substantive concerns of women, without the need for any reliance on a comparator.

Other ECHR Articles are also relevant. Article 3 would also support recognition of positive obligations, (see McGlynn, Clare (2009) ‘Rape, torture and the European convention on human rights’ ICLQ 58 (3)) including in the contexts considered below, although the harm threshold is obviously high. Article 8 currently may be the gateway to Article 14, the freedom from discrimination guarantee (bearing in mind that the UK has not ratified Protocol 12). In other words, if Article 8 is engaged but no violation is found, a violation of Article 14 might nevertheless be found of the two read together (Van Raalte v Netherlands).

Using Article 8 ECHR to advance women’s interests

Under one strand of feminist thinking, it might be argued that the ECHR in general has little to offer women (see, for discussion, Grabham and Hunter ‘Encountering Human Rights’). This is due to a judicial approach to it that values modes of thought that may marginalise women and which pays little attention to ideas about feminist legal method (see Samuels ‘Feminizing  human rights adjudication’), combined with the difficulty of using specific cases to address complex social problems. But, as a number of writers have pointed out, especially recently (see Bauer, ‘Documenting women’s rights violations by non-state actors’), human rights principles can be used as a campaign tool in influencing and mobilising public and community opinion. The use of campaigning methods by feminist advocacy groups, as instanced in the recent successful campaign to remove gender-based hate speech from Facebook, does not preclude mobilising legal channels as a complementary means of disrupting existing social norms adverse to women via deployment of such principles, allowing gender-specific variants of rights’ violations to be recognised. At the same time, the difficulties facing women who seek to use the ECHR should not be under-stated, and Article 8’s protection for family life is gender neutral at face value, meaning that it can also be invoked in ways that could put women and girls at risk by discouraging state actions interfering with family life that are designed to protect vulnerable women (for example, claims by family members convicted of offences relating to domestic violence, including ‘honour’ murder, that post-sentence they should not be deprived of access to surviving family members in furtherance of their family life, as occurred, albeit unsuccessfully, in Ahmad v Brent).

So, in what ways does and could Art 8 especially benefit women and girls?  This blog obviously cannot offer by any means an exhaustive list – each of these matters is complex and has already spawned quite an extensive literature in itself in relation to international human rights’ law – so they can only be touched on here.

Preventing deportation to face adverse treatment based on gender

EM (Lebanon) (FC) (Appellant) (FC) v SSHD concerned a woman who had suffered domestic violence from her husband; as Lord Bingham noted, he had ended her first pregnancy by hitting her on the stomach with a heavy vase, saying he did not want children (para 22). Under Shari’a law as applied in Lebanon, during the first seven years of life, when a male child is cared for by the mother, the father retains legal custody and may decide where the child lives. The transfer to the father at age 7 is automatic: the court has no discretion in the matter and is unable to consider whether the transfer is in the best interests of the child. As a result, Lord Bingham pointed out, women are often constrained to remain in abusive marriages for fear of losing their children (para 24). The evidence was that no family life had been established in Lebanon between the child and his father or his father’s family; it was found that the father had shown no interest in him. The applicant had managed to leave Lebanon with her son and resisted deportation from the UK on the basis of her Article 8 right to respect for family life; as this was a ‘foreign’ case, she had to show that a flagrant violation of Article 8 would arise due to the impact on her family life if she was returned to Lebanon, taking into account that the only family life that had been established was between mother and son. The Lords agreed that on return to Lebanon both the appellant’s and her son’s right to respect for their family life would be flagrantly violated in the sense of being ‘completely denied and nullified’.

Expulsion to face the risk of extremely serious adverse treatment on grounds of gender – ‘honour’ murder (see A.A and others v Sweden) or FGM (Omeredo v Austria) – has been found to fall within Articles 2 or 3. But their status as unqualified or non-materially qualified rights inevitably carries with it the need to show a high threshold of harm, and so places women under serious evidential difficulties, meaning that bringing the claim also under Article 8 (alone and/or combined with Article 14) may be advantageous in such instances.

 Domestic violence – requirement of effective investigations and prevention

 Bevacqva and S v Bulgaria concerned a woman who had been attacked on a number of occasions by her husband and claimed that her requests for a criminal prosecution were rejected on the ground that it was a ‘private matter’. The Court found a violation of Article 8 due to the failure of the state to adopt the measures necessary to punish and control the violent behaviour of her husband. A somewhat similar situation arose in Hajduova v Slovakia; the applicant’s husband had been detained in hospital for psychiatric treatment after he attacked her in public and threatened to kill her. She moved to a refuge with her children. Her ex-husband was released, without having undergone the required treatment, and renewed his threats. Reiterating that Slovakia has a duty to protect the physical and psychological integrity of individuals, particularly vulnerable victims of domestic violence, the Court found a violation of Article 8 in that, although the applicant’s ex-husband had not assaulted her following his release from hospital, her fear that his threats might be carried out was well-founded and the authorities had failed in their duty to ensure his detention for psychiatric treatment. A similar outcome was reached in Kalucza v. Hungary, which concerned Hungary’s failure to protect Ms Kalucza from her violent former partner. The Court found a violation of Article 8 since the Hungarian authorities had not taken sufficient measures to provide her with effective protection against him, despite criminal complaints lodged against him for assault, repeated requests for a restraining order against him, and civil proceedings to order his eviction from their flat.

These cases succeeded under Article 8, although it is readily arguable that some cases of domestic violence should rather raise issues under Articles 2 and 3, as in Opuz v Turkey which concerned the ‘honour’ murder of the applicant’s mother, who had tried to support the applicant, and repeated ‘honour’ crimes in the form of serious assaults and death threats against the applicant. The Court noted that the national authorities were reluctant to interfere in what they perceived to be a “family matter”. Turkey was found to have violated Article 2 due to its lack of due diligence in taking preventive operational measures to protect the life of the mother and, therefore, in failing in their positive obligation to protect the right to life of the applicant’s mother within the meaning of Article 2. Turkey was also found to have violated Article 3 due to its failure to take protective measures in the form of effective deterrence against serious breaches of the applicant’s personal integrity by her husband.

A number of highly significant findings were made in this context in the very recent case of Eremia and Others v Moldova. The judgment found that, while the authorities took some steps to protect the first applicant from her violent husband, a police officer, over a period of time, the steps were not effective and there was reluctance to take the matter seriously enough. In other words, the failures in the case were redolent of the familiar failings in the previous domestic violence cases considered. But not only were breaches of Articles 8 and 3 (on the basis of the state’s positive obligation to protect persons from inhuman treatment) found, but the Equal Rights Trust, intervening, persuaded the Court to treat domestic violence as a form of gender-based discrimination under Article 14 read with Article 3.  The second and third applicants were the daughters of the first applicant; they complained successfully under Article 8 of the psychological effects of witnessing their mother being physically and verbally abused at their home, while being unable to help, and of verbal abuse on the part of A. The decision represents an important breakthrough in this jurisprudence since the gendered nature of domestic violence – its disproportionate and particular impact on women – was recognised under Article 14, as was the impact of such violence on children forced to witness it, under Article 8.

 Recently in the UK, the IPCC reported adversely on the police investigation into the murder of Maria Stubbings who was strangled in Chelmsford, Essex, in December 2008 by her former boyfriend, Marc Chivers. Essex police knew he had killed before, and that he had served time in prison for assaulting Stubbings, but the IPCC found that they had failed to recognise the seriousness of the danger to her. As a number of journalists have recently pointed out, the Macpherson inquiry found that the police had failed “to provide an appropriate and professional service” with “processes, attitudes and behaviour” harmful to the minority ethnic community when it reported on the murder of Stephen Lawrence. Maria Stubbings’ family have called for a similar inquiry into failings in police investigations into domestic violence. The threat and actuality of a possible action under Articles 8, 2, and 3 domestically or at Strasbourg, based on the jurisprudence cited, would be likely to aid campaigns focussing on this issue.

Upholding access to abortion

The recent jurisprudence on abortion at Strasbourg has had some moderate success in alleviating harm to women, by invoking Article 8 (and in some instances Article 3 in RR v Poland and P&S v Poland). The claims so far have been brought against Poland and Ireland (ABC, RR and P&S), but cases against other states are in the Strasbourg system (for example, Z v Moldova). This is not the place to discuss this developing jurisprudence in detail, except to make two points. Poland purports to allow abortion in certain narrow circumstances but, in practice, on religious grounds, places obstacles in the way of obtaining it (RR para 84-86), while Ireland has a virtual prohibition with a narrow exception where there is a serious risk to the life of mother. The suffering of the applicants, especially in the Polish cases so far, has tended to be of a very serious nature (see, eg. Tysiac v Poland, where a complication with pregnancy resulted in blindness). Although Ireland’s current virtual complete prohibition on domestic abortion is largely ineffective due to the availability of abortion in England (ABC), it has been linked to extreme suffering in exceptional circumstances, including the tragic death of Savita Halappanavar. This position underpins the paradox of the current jurisprudence which is that cases against Poland are more likely to succeed despite its more liberal regime, since the Court can avoid a full confrontation with Ireland’s Constitutional provision of equal protection for foetal and maternal life.

The recent case of P&S v Poland, the first Strasbourg case on rape-induced pregnancy, graphically illustrates what is wrong with Polish practice on abortion. The first applicant, P, was a 14 year old girl who became pregnant as a result of rape. She therefore had a legal right to an abortion under Polish law. However, when, supported by her mother, S, she sought to access an abortion in practice, she faced a range of obstructions. The hospital that P approached disclosed her personal and medical information to the media, and the public generally. As a result, she was harassed by anti-abortion activists and representatives of the Catholic Church. She went to three different hospitals but could not obtain genuine information about the requirements for obtaining an abortion. Doctors invoked conscientious objection against performing the abortion and failed to refer P to another hospital. The stance was taken by anti-abortion hospital staff and Church officials, falsely, that S was trying to pressure P into having an abortion against her will. As a result, when P and S sought police protection from anti-abortion activists, the police instead arrested P, removed her from S’s custody and placed her in detention (paras 17, 26, 28 and 29). After delays, P eventually received a legal abortion following an intervention from the Ministry of Health, but she received no post-abortion care (para 41). The Court relied on Tysiąc and RR to reaffirm under Article 8 that once a State has adopted statutory regulations that allow abortion in specified situations, it comes under a duty to make the access available in practice. The Court found a breach of Article 8 on the basis of ‘a striking discordance between the theoretical right to… an abortion…and the reality of its practical implementation’ (para 111).

The situation in Poland may appear to be far removed from that in the UK (apart from in Northern Ireland), but given current attempts to undermine the principle of safe legal abortion by making access to abortion more difficult – in particular by allowing pro-life groups to become involved in counselling abortion-seekers (proposed by Nadine Dorries) and greater protection for conscientious objection (confirmed in a recent case involving Catholic midwives).

Conclusions

This blog has suggested that the guarantee of respect for private and family life under Article 8, taking account of relevant Strasbourg jurisprudence, is leading to developments in human rights principles that reduce gender-based harm to women. A pervasive pessimism in some feminist thinking on the potential of the ECHR to address and reduce such harm may have obscured the potential of such developments, which are also very recent. This blog suggests that a pessimistic view of the ECHR’s potential (and Article 8’s in particular) to aid women who have been let down by courts and legislatures in their own states, should be revisited.

Is Article 8 ECHR the ‘Feminist Article’?

GuestPost: Ruth Fletcher's submission to the Oireachtas Abortion Hearings.

We are pleased to post Dr. Ruth Fletcher’s submission to the Health Committee on the General Scheme of the Protection of Life during Pregnancy Bill, 2013. Ruth is Senior Lecturer in Law and Director of Centre for Law, Ethics and Society at Keele University. She spoke at the final day of the Committee’s hearings on the government’s proposed abortion legislation yesterday.

 Introduction

The proposed legislation is welcome for its recognition of a public obligation to implement an existing constitutional right to life-saving abortion.  The state is under a duty to enforce existing constitutional rights, and failure to act is a clear breach of that duty.  The movement away from absolutist protection of foetal life is welcome in a context which requires the balancing of public interests in protecting foetal life and in protecting women’s lives.  But the proposed legislation does not do enough to address certain material considerations for this legal balancing act.  I will focus this submission on 4 key points in relation to the definition of the unborn, the significance of risks justifying a termination of pregnancy, the limits on the right to conscientious objection, and the inappropriateness of criminalization.

Unborn – Head 1

Head 1 suggests that the unborn shall be defined to mean “following implantation until such time as it has completely proceeded in a living state from the body of the woman”.  The reference to implantation as the beginning point for defining unborn life is justified by reference to the Supreme Court decision in Roche v Roche, which addressed whether stored embryos were unborns for the purposes of Article 40 3 3.  With respect, the legal and ethical arguments for choosing the point of implantation as the significant moment for legal protection have not been adequately addressed.  Given past failures to interrogate the assumed wrongness of abortion and given the particular factual context of Roche v Roche, it is open to the Legislature to consider more fully the criteria by which the ‘unborn’ should be defined in this legislation.

There are strong ethical arguments for choosing sentience as an alternative rationale for the protection of unborn life (Steinbock, 2011).  Sentience is the capacity to feel pain or pleasure and is regarded by many moral theorists as the characteristic of living things which imposes obligations on others.  Trees may be living things which are biologically valuable, but they do not have the capacity to be harmed in the same way that sentient beings do and so are not owed harm-reducing duties.  A recent review of the evidence on foetal awareness by the Royal College of Obstetricians and Gynaecologists (2010) came to the view that 24 weeks gestation was the earliest moment at which sentience was possible, and that the foetus may not be sentient or aware at all during pregnancy given the effect of the uterine environment.  If protection of the unborn is about the protection of human life then sentience is arguably the best candidate for the key feature of human life that make it intrinsically worthy of legal protection.

Obviously there are candidates for justifying the protection of unborn life before sentience, the main contenders being the biological or human species argument, and future/potential personhood argument.   But these are not strong enough to justify the kind of full legal recognition which the legislation assumes.  One version of the human species argument would protect unborn human life from conception, because it is precious as God-given life.  While individual people should be free to let this view inform their moral decisions, it cannot be a view which informs the law in a pluralist society of many faiths and none.  Another version of the human species argument is the biological individuation view, that there is something precious about the embryo as an individual member of the human species.  The problem with this position is that it does not tell us what it is about the human species that makes harm to a human wrong.  If another species has capacities to think, to feel, to act, or to live, is it unworthy of protection because it is not human?

Probably the best argument for legal recognition of the ‘unborn’ from its earliest stages is that it will, subject to assistance from the pregnant woman, become a person in the future.  If this is accepted as the justification for the reference to implantation, it should be noted that this does not apply to fetuses with lethal genetic abnormalities.  They do not have a future as persons, and so should be excluded from the legal definition of ‘unborn’ in the legislation.     A second important aspect of this argument is that it rests on the potential to become a person, not on actual personhood.  Potential personhood is arguably best regarded as giving the unborn some moral value because of what it will become in the future.  This potentiality may be ethically significant, but it is not the same as the moral status that comes from the actual ability to feel pain or pleasure.  Nor is it the same as the higher moral status which comes with personhood and the capacities for rationality and communication.   As Thomson (1971) has argued the person’s interest in bodily and moral integrity may justify limitations on our duties to sentient beings.  This is because part of what makes life valuable is the person’s ability to reflect on her life over time and make her own moral choices.

Conclusion: The following categories provide a better ethical rationale for the protection of unborn human life than the assumed significance of implantation.

  • Pre-sentient foetal life has moral value rather than moral status.  It should be taken into account in moral decision-making, but it does not impose harm-reducing duties on others.
  • Sentient foetal life has moral status and may impose a duty not to be harmed on others.
  • Self-aware personhood is a higher moral status than sentient life and may limit the duties owed to sentient life in important ways.

Recommendation 1:

The unborn should be defined to mean “the foetus following the earliest moment at which sentience is possible”

Recommendation 2:

The unborn should be defined not to mean those foetuses which have lethal abnormalities and will not have a future independent life.

Risk of loss of life justifying a termination of pregnancy – Heads 2-4

Heads 2-4 provide for the kinds of risk to a woman’s life which will legally justify a termination of pregnancy. Here I would like to focus on the narrowness of the risk to life ground for abortion.  This ground has been drawn very narrowly in part because it has been assumed that Article 40 3 3 requires the life of the pregnant woman to be treated the same as the life of the embryo or foetus

As Irish equality scholars, Baker, Lynch, Cantillon and Walsh have argued, equality does not mean sameness. Rather treating entities equally requires the accommodation of their material and vital differences.   Even if one accepts the contested view that the foetus ought to be legally protected as if it was a person with rights and responsibilities, that in itself does not determine how a conflict between the life of the foetus and life of the pregnant woman should be resolved.  Vindicating the life of the unborn with due regard to the equal right to life of the mother should entail a full evaluation of scope of the unborn’s interests vis a vis those of the pregnant woman.  To state the issue concisely, women are conscious, sentient beings with moral views and responsibilities to others, when foetues are not.  Foetuses have value as bearers of biological life and as future persons, but this is not the same kind of value as that of a breathing, feeling, thinking woman.   The current legal test treats women and fetuses as if they are the same, and in doing so, it devalues the significance of each form of life.

Recommendation 3:

The legal test should be:“It is not an offence to carry out a medical procedure when there there is a real and substantial threat to the life of the woman, including to her life interests in mental and bodily integrity.”

If the Oireachtas is not willing to adopt this recommendation, the minimum alternative is to remove the discriminatory distinction between the evidence requirements for a risk to life from a threat of self-destruction and a risk to life from a threat of physical illness.  This distinction is based on a particularly problematic view of women as morally untrustworthy, and does not address adequately the duty not to harm women’s lives.

Conscientious objection – Head 12

In principle the inclusion of a conscientious objection clause is defensible, subject to 2 conditions.  It must be applied to individuals rather than organisations and only in circumstances where alternative provision is readily available.  If respecting human life includes respecting the personal choices which give life meaning (Dworkin, 1992), then healthcare practitioners may avoid performing healthcare which infringes their moral values.  This is an interest which inheres in the individual as the moral agent of her own life, not in an institution such as a hospital which has a corporate personality.  As the Explanatory Notes acknowledge, conscientious objection is not an absolute interest, and is limited by the need to prevent harm to others, pregnant women in this instance.  Moreover, healthcare practitioners have a duty of care to pregnant women, which includes promotion of their health and well-being.  Conscientious objection to the provision of healthcare is only defensible therefore in circumstances where it would not entail damage to women’s interests in health and well-being.  Delays in accessing healthcare could damage women’s health and well-being because a woman is left living with the physical and mental stresses of unwanted pregnancy for longer, and because later terminations are riskier than earlier ones.  In circumstances where a healthcare practitioner cannot arrange alternative provision without undue delay, their right to conscientious objection may be limited by the duty to prevent harm and promote health and well-being.  In practice therefore, the wording of Head 12 does not give enough weight to the harm-reducing limits on the right to conscientious objection.

Secondly, the phrase “as per current medical ethics” should be removed.  Medical ethics usually refers to philosophical inquiry into the ethically right courses of action in medicine.  There is usually a range of ethically defensible courses of action in a given area of medicine and so a reference to ‘medical ethics’ in this sense raises more questions than it solves.  If  “current medical ethics” is meant to refer to the current ethical guidelines adopted by the Medical Council, then this should not be included in a statutory provision.  It is unnecessary, and may cause confusion about the relevant legal standard should the Council Guidelines change.

Further, I would ask the Committee to note that this recognition of healthcare practitioners’ consciences is inconsistent with the lack of legal recognition to date of pregnant women’s consciences.  If conscientious objection to the provision of abortion is legally acceptable then so is a ‘conscientious objection’ to the sustenance of an embryo/foetus within one’s body.  If a woman’s conscience tells her that terminating a pregnancy is the best moral resolution of the various issues which may arise in a given pregnancy, then that conscience also deserves respect and legal accommodation.

Offence – Head 19

The criminalisation of women’s decisions to end their pregnancies is a disproportionate and unfair response to the constitutional direction to vindicate the life of the unborn as far as practicable.  Criminalisation does not achieve the objective of protecting foetal life and it makes the mental and physical experience of unwanted pregnancy worse. The Legislature has other options under Article 40 3 3 and it does not, as the Explanatory Notes suggest, have to criminalise those abortions which fall outside the tests in Heads 2-4.  The Legislature could regulate the terms under which women access abortion in the Irish health service without punishing those women who fall outside those terms.  It could vindicate unborn life by investing in pregnancy-related care and research into miscarriage.  In choosing to punish women rather than to adopt more neutral or positive measures for the support of foetal life in pregnancy, the Legislature would be acting unfairly.  Head 19 is unfair because it asks women, rather than the state, to bear the weight of the public duty to vindicate foetal life.

Recommendation 4(a):

Repeal sections 58 and 59 of the Offences Against the Person Act 1861, without providing for a new offence.

Recommendation 4(b) (as an alternative to 4(a)):

If the Legislature is not willing to take the route of decriminalisation, it should at minimum define the offence so that it excludes attempts to end a pregnancy.  The phrase “[A]ny act with the intent to destroy unborn human life” is too broad and may include those acts which are ultimately unsuccessful in destroying unborn human life.  Secondly, the maximum penalty for the offence should be reduced significantly from 14 years.  This penalty is disproportionate in punishing a decision which implements the defensible moral choices of women and their healthcare providers.

_____________________________________

Today, 11 organisations criticised the hearings as inadequate. The full written submissions made to the Hearing do not appear to have been published online. We are happy to post copies of submissions here. (Email to s.ring[at]kent.ac.uk). A number of organisations and individuals have placed their written submissions to the Committee in the public domain. They include:

GuestPost: Ruth Fletcher's submission to the Oireachtas Abortion Hearings.

The Protection of Human Life Bill, 2013: Your Questions Answered.

The General Scheme of the  Protection of Human Life Bill During Pregnancy Bill 2013 was published last night. The General Scheme is not a draft Bill but it gives us a sense of the likely content of the Bill and of the rationale for the proposed provisions. This is a quick overview of some of the most important questions which it presents, with links to the answers which we have provided on this blog in previous posts. Other members of HRinI may add to this with their own observations in the coming days. Your comments and questions are very welcome.

Have the Floodgates Opened? No. This is legislation for X, 21 years later. It is not a revolutionary Bill. Beyond the Scheme, abortion – whether procured by a doctor or by the woman herself – remains a criminal offence, albeit the penalty will change from life imprisonment to a fine or a maximum 14 years in prison. The proposed Bill does not, and indeed as Laura Graham and Fiona de Londras explained,  cannot extend Ireland’s abortion scheme beyond the scope of X. The Scheme emphasises that it applies only to the minority of cases. The Scheme makes significant provision for recording and reporting the basic details of terminations carried out under it, which will lend welcome transparency to this area of law. Abortions will not be permitted in Ireland in cases where there is a risk to the physical or mental health of the mother eg as might happen in cases of incest, rape, or the non-viability of the foetus. Women in that position will be at the mercy of the ‘constitutional right to travel’. Arguably, the proposed legislation does not go to the full extent of what is permitted by X in that it does not make provision for the termination of pregnancy where the foetus is not viable. On the possible justifications for including such a provision see Ivana Bacik here and Jennifer Schweppe and Eimear Spain here.

Will the Legislation Affect Assisted Reproduction? The Bill suggests that the Government is willing to provide a legislative definition of ‘unborn’. Embryos pre-implantation do not fall within the scope of the Scheme. ‘Unborn’ includes a foetus in the process of being born, and no term limits are included.

How Many Doctors Will Be Involved in Clinical Assessment? Appropriate clinical assessment triggers the constitutional right. One doctor may provide an abortion without further permissions from colleagues if the mother’s life is at immediate risk and an abortion is immediately necessary to save it.  Otherwise, a woman may refuse an abortion, but she cannot obtain one without the permission of multiple doctors. Where there is no immediate risk to life, the woman who obtains an abortion under the proposed scheme will have been examined and certified by multiple doctors; 2 (an obstetrician/gynecologist and one other of a relevant clinical speciality) where the mother’s life is at risk due to physical illness and 3 (one obstetrician/gynecologist and two psychiatrists) where the risk arises from the mother’s suicidal intent. GPs will be consulted but will not have decision-making powers. The doctors must jointly certify their opinion. The Taoiseach today said that they must be ‘unanimous’, which raises issues as to whether a single doctor of two or three can effectively block access, compelling the woman to appeal or – if she is able – seek termination elsewhere.

What About Suicidal Women? Suicidal women are to be included in any legislation, despite opposition from within Fine Gael. As  Fiona argued here,  the Oireachtas cannot exclude suicidal women from the legislation and still meet its constitutional obligations.  (See Paul Brady here for a counter-argument). However, suicidal women are to be subjected to a separate scheme to women whose life is at risk for purely physical reasons. Fiona explained why this is unjustifiable here.  Clare Murray explained here. that the provision for multiple doctors to ‘certify’ the risk to life is unusual and controversial even a mental health context (and of course, this legislation will apply to women who are not mentally ill), but the Taoiseach seems convinced of the need for a demonstrably more rigorous standard given the ‘subjective’ nature of the assessment of suicide risk. The mooted requirement for the involvement of perinatal psychiatrists has been removed. The application of this scheme could subject the woman to multiple examinations as it is not required that the three doctors examine her together or at the same location. The Scheme leaves it to the professional bodies to provide guidance on standard medical practice, referral pathways and so on. Real concerns are emerging around the participation of psychiatrists in this process as one significant group of psychiatrists have refused to participate in any form of assessment panel while another minority group actively campaigned for the exclusion of suicidal women from the legislative scheme. There is, and can be, no suggestion that a woman who is not otherwise mentally ill can be detained until a decision is reached as to her entitlement to abortion.

Will this Scheme Provide Clarity to Doctors? Doctors acting as gatekeepers to a woman’s constitutional right are asked to determine ‘in good faith’ that there is a ‘real and substantial risk to the life of the mother’ and that in their ‘reasonable opinion’ that risk can only be averted by a termination. See John O’Dowd on the difficulties in assessing ‘real and substantial risk’ here. While the Scheme makes clear that an abortion is permissible even where the risk to the mother’s life is not ‘immediate’, real difficulties in applying the test remain. In a case mirroring that of Savita Halappanavar, access to abortion would still depend on medical assessment of the risk, albeit the Scheme formalises the process of assessment.  However, the Scheme explains that it would have been difficult to provide in legislation for every one of the complex and unpredictable circumstances in which a risk to the mother’s life might arise. The Department of Health will work with the relevant professional bodies in developing guidelines for members.

What if a Woman is Refused an Abortion? The HSE will establish and maintain a medical review panel to which such women may appeal. Members will be nominated by the professional bodies. Members of the panel will convene as an independent committee on a case by case basis to review refusals in cases of risk arising from physical illness and risk arising from suicidal ideation. The committee will have two members in the latter case (an obstetrician/gynecologist and a specialist) and three members (an obstetrician/gynecologist and two psychiatrists) in the former. Thus a woman who obtains an abortion in Ireland may indeed have been subject to the judgment of six doctors. This appeals process is the Scheme’s effort to establish the appeals framework needed meet the requirements of the A, B and C v. Ireland judgment. The woman may apply for an appeal herself, or it may be made on her behalf with her consent. The committee will be competent to review the reasons for the decision and the relevant evidence, and to fulfill the requirement of A, B and C v. Ireland should provide the woman with an opportunity to be heard. It shall convene within 7 days of application and reach a decision within 7 days. If a medical emergency develops such that there is an immediate risk to the mother’s life, the emergency provisions will apply and there will be no need to await the outcome of the appeal. No third party may use the scheme to challenge a decision to provide an abortion. Again, the decision must be jointly certified.

Are There Too Many Obstacles In Women’s Path? Humiliation, fear and other dignitary harms are not in themselves breaches of a woman’s European Convention Rights. What we need to look out for in the operation and enforcement of the scheme are chilling delays and uncertainty; the systemic placing of obstacles in a woman’s path to undermine her access to her rights. While the appeals mechanism indicates a 14 day time limit for decision-making, concern has been expressed about rural women’s timely access to doctors qualified to certify their entitlement to abortion under the scheme in the first place. It may be, nevertheless, that women who are entitled to abortions under the scheme will prefer to travel outside the jurisdiction rather than submit to the certification and appeals process.

Can Doctors Privilege the Interests of the Foetus Over the Interests of the Mother Under the Proposed Law? The Constitution already limits the rights of the mother by reference to those of the foetus. However, there are a number of important points here.

First, the legislation imposes a duty on medical practitioners ‘to preserve the life of the unborn insofar as possible’, and this may include efforts to deliver a viable foetus. This does not mean that doctors should adopt an attitude of hostility or skepticism in assessing the risk to the mother’s life (the ‘good faith’ decision) but it will legitimately affect doctors’ choice between abortion or other medical procedures compatible with the right to life of the mother (the ‘reasonable’ decision).

Second, a doctor may exercise the individual right of conscientious objection to participation in an abortion. I discussed this issue at length here. Under Medical Council Guidelines a doctor exercising this right should refer the patient to an alternative practitioner.  An action for abuse of this provision (for instance where a doctor did not declare his conscientious objection and refused to certify a woman without explaining that this was the reason) should lie in negligence, if appropriate harm results. It would be preferable, in my view, if the legislation made explicit provision as to conscientious objection rather than relying on the Medical Council Guidelines, which are brief and somewhat vague.

Finally , a woman refused an abortion will have a right of appeal as set out above. It is especially important that the appeals mechanism is seen to be sufficiently independent and impartial to inspire public confidence.

 

The Protection of Human Life Bill, 2013: Your Questions Answered.

Cathleen Ní Houlihan and the protection of Ireland's femininity

cathleen ni houlihanIn the years preceding independence, the vision of Ireland as a women in need of protection became a standard of nationalism. Genderised Ireland has roots in Róisín Dubh and the Earl of Tyrone’s attempts to stay off the Tudor expansion in Ireland. Directly linking the Earl’s resistance to his daughter’s woes, standing in for a forsaken Ireland, the image of a women as Ireland needing male intervention to fully substantiate both her rights as a sovereign power but also to fully embrace her Irishness, as opposed to any foreign interpretations of femininity, became an entrenched trope of nationalism. This was replicated by Yeats and Gregory in the play Cathleen Ní Houlihan. In this play, Maud Gonne, as elderly mother Ireland, is only revived as young and, importantly, beautiful, upon the sacrifice of young men to regain her freedom to be distinctly Irish. Thus, Ireland becomes a women who while personifying the very character of Irishness also requires others, always men, to protect, vindicate and guard her from outside influences and interference. Cullingford has described the depiction of Ireland as a women as neither natural nor archetypal but so common as to be ‘rhetorically invisible.’ Further, she argues that Ireland as women has been so effective  that it is entrenched in the idea of women in stereotypical roles invariably linked to nature that is to be possessed and cultivated to its utmost by men, becoming a settled trope of Irish culture. This has created a state structure and culture in Ireland where men occupy the political role of fighting and vindicating rights on Ireland’s, and as such, women’s behalf.

Such characterisations of states possessing both sex and gender are not restricted to Ireland. A recent speech by Patriarch Kirill, the head of the Russian Orthodox Church, warned against the evils of feminism. Arguing that the ‘Motherland’ or Russia, as a state, would be threatened should women step outside their traditional role in the home and take the active political and social roles advocated by feminism. Motherland Russia requires women to be in the private sphere to survive.  Bharat Mata or Mother India was used as a symbol of both Indian and women’s emancipation during the struggle for Indian independence, though the latter was largely forgotten upon independence, other than among the elites. Male personifications are also common, from John Bull and Uncle Sam to Dangun in Korea. Yet, in the incidences of male personifications it is as an active player in the public sphere who commands and directs citizens, offering protection rather than requiring it.

Hanafin and Collins point to the 1937’s Constitution’s use of myths and maidens in their critique of the use of gender in the Constitution. Particularly, they discuss the role of women as mothers in the present constitution and link this to nationalist trends towards myth-making which preceded the Constitution and post-colonial structures. The role of mother as forging a basis for re-birth is particularly important in their analysis. Arguably, in the present debates on abortion legislation, see here, here, here and here,  it has become ever more prominent in the perceived vindication and protection of Irish women within Ireland’s constitutional structure. The personification of Ireland as a women in need of protection, where the Irish male vindicates their rights, certainly appears to be fully operational in the language used in the political debates. The language employed has been heavily patriarchal as women are invariably discussed in a manner that suggests they are not capable of making informed medical decisions or indeed have cognisance of their own mental welfare, particularly regarding  suicide. Rather, women are in need of the protection offered by the State, and as such, the Constitution as was originally intended in 1937. Their role as mothers, apparently an anathema to any decision to terminate a pregnancy, is inherent to our understandings of Ireland itself and Irishness.

Such rhetoric, though not quite as bare-faced as Patriarch Kirill, is not so far removed either. Irish women fulfil a role within the constitutional structure and, as such, the state, as is clearly evident in Article 42.2 and the support for women’s place in the home. While most agree this particular article is archaic there has been no rush to remove it either. Arguably, article 42.2  merely is an open portrayal of how the 1937 Constitution regards the state and the particular role of women in ensuring the maintenance of its unique Irishness, as envisaged by the male power holders of its time, particularly as this article’s interpretation has permeated the use of other constitutional articles and wider societal debates. While Cathleen Ní Houlihan may appear to be a long forgotten relic of nationalism in the pre-state era, her presence is more clearly felt than perhaps it should. Irish women do no need the male citizenship to vindicate their rights, their own citizenship should enable them to do so in the same public sphere. The emergence of a beautiful maiden ready to take the role of mother no longer is representative of Ireland or Irish women, the Constitution, and its implementation should reflect this.

Cathleen Ní Houlihan and the protection of Ireland's femininity

Abortion, Unease and Citizenship in Ireland.

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

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

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

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

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

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

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

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

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

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

Abortion, Unease and Citizenship in Ireland.

Can a Separate Scheme for Suicide in the Abortion Legislation be Justified?

constitutionToday’s (Irish) Sunday Times reports (no online link) that at least some members of Fine Gael want the proposed abortion legislation to include a requirement that six medical professionals would certify the need for abortion in cases of suicidal ideation. Whether this claim is correct or not, and whether—if it is correct—it will survive the Cabinet meeting this week and the scrutiny of the Attorney General (it seems to me almost certainly the case that this would not satisfy the ECtHR), is in some ways a marginal question at this point. The central enquiry as regards abortion and suicidal ideation at this point ought to very simply be this: ‘what is the rationale for treating suicidality differently to other risks to life?’ It strikes me that the only principled justifications could be based on law or medicine, but in neither case does there seem to be a convincing narrative for differentiated treatment. Continue reading “Can a Separate Scheme for Suicide in the Abortion Legislation be Justified?”

Can a Separate Scheme for Suicide in the Abortion Legislation be Justified?

Religion, Conscience and Abortion in Ireland.

Irish women are still travelling to England to terminate their pregnancies. Meanwhile, the legal fallout of the Eighth Amendment mounts up. At the inquest into the death of Savita Halappanavar in Galway last week, a senior midwife manager explained how she had come to make the ‘Catholic country’ remark which, in the words of the coroner ‘went around the world’. “I was trying to explain this is Ireland”, she said. The Irish Times reports:

“It was not said in the context to offend her. I’m sorry how it came across. It does sound very bad now but at the time I didn’t mean it that way,” she said.“It was the law of the land and there was two referendums where the Catholic church was pressing the buttons.”

She said it was more to give information and to throw light on Irish culture[…]

Ms Burke said Ms Halappanavar knew a termination was against the law. She, Ms Burke, felt her back was against the wall and had to say something. “I shouldn’t have said it but it came out the wrong way.” It was a chat and had nothing to do with the provision of care, she told the inquest today.

Praveen Halappanavar has thanked Ms Burke for her statement. It has come as a surprise that her remark was not made in the context of a direct conscientious refusal to participate in an otherwise legal termination of pregnancy. We might wonder how easy it really is to draw the line between a formal demand for a conscience exemption, and the informal undisclosed – and therefore unregulated – tug of individual or collective habits of conscience in the context of medical decision-making. This protracted, uncomfortable, deeply gendered and raced encounter between Ms Burke and the Halappanavars reminds us that the intersections of law, medicine and conscience (what Ms Burke called ‘Irish culture’) are more complex than often appears from the public debate. There is more to the entanglement of law, Catholicism and agency than we can comfortably stuff in the box marked ‘Youth Defence’. There is an ethical question about the ways in which a single practitioner comes, ‘back to the wall’, to induct a patient into an entire culture of conscience; its suspicions, silences, compromises and coping mechanisms. And there is another about the terms on which individuals – perhaps especially women – take up the burden of easing the state’s wrongdoing: how do we understand the legitimatory relationship between words of comfort or excuse and the violent enforcement of a law which apparently requires women to ‘enter the antechamber of death before they can be snatched back from the brink‘?

As the Government has announced that it will publish the ‘Protection of Maternal Life’ Bill to legalise abortion in certain circumstances between now and the summer break it may be time to look at one law-and-religion question which law reform can simplify, if not answer. We need to start to think about the formal legal relationship between religious conscience and abortion in Ireland. The debate here usually focuses on religious medical professionals’ conscientious refusals to perform abortions, though of course, medical professionals might also be moved to perform an abortion for reasons of conscience and though, of course, religious believers may be divided as to what conscience requires in a particular case.

The basic philosophical issues presented by claims of conscience are set out by Kent Greenawalt here and this useful resource from the Essex Human Rights Centre outlines the international legal position. From a human rights perspective, the key point is that individual claims of conscience must not be allowed to nullify access to essential medical treatment (bearing in mind that access may already be precarious because of other systemic factors). For an idea of the varying difficulties caused by conscientious objection across a range of European jurisdictions see here. The European Court of Human Rights has emphasised (most recently in P and S v. Poland) that States are required to organise their health system in such a way that the effective exercise of freedom of conscience by medical professionals does not prevent patients from accessing the services to which they are entitled under legislation.

As things stand, two draft bills are in the public domain which, although they have not attracted Government support so far, give us a hint of the future Irish approach to a conscience clause. Both s. 5 of the Medical Treatment (Termination of Pregnancy in Case of Risk to Life of Pregnant Woman) Bill 2012 championed by Clare Daly TD, and  s. 13 of the Draft Termination of Pregnancy Bill submitted to the Oireachtas Committee on Health and Children by Simon Mills BL contain suggested conscience clauses. Readers may remember the debates about the possible inclusion of a conscience clause in the Civil Partnership Act. (For a discussion of the constitutional issues raised, see Eoin Daly on this blog).  The Irish draft Bills raise 4 key questions:

Can a Doctor/Nurse/Midwife Refuse to Participate Directly in the Termination of a Pregnancy?

We know from the Oireachtas Abortion Hearings that doctors do perform a small number of abortions in Ireland every year, as well as referring women for terminations abroad. Other doctors, such as Dr. Mary McCafferty, have expressed their objection to participating in abortion procedures. Recently, the IMO has repeated its position against reform of Irish abortion laws. The Draft Bills seek to provide for circumstances in which a doctor might refuse to perform a termination for reasons of conscience. This has been a significant problem in other European countries. For instance, in 2010 it was reported that some 70% of Italian gynecologists refused to perform abortions; rising to over 80% in some parts of southern Italy.

Both Bills provide for a right, in principle, to refuse to participate in the termination of a pregnancy. But both Bills distinguish between emergency and non-emergency situtations.  s. 5(1)(b) of Clare Daly’s Bill requires a medical practitioner to directly participate in termination of a pregnancy if it is immediately necessary to save the life of the mother and no other competent medical practitioner is available to carry out the procedure. To similar effect, s. 13(2) of Simon Mills’ Bill restates the duty of a doctor, nurse or midwife to participate in any treatment necessary to save the life of a pregnant woman.

This approach seems somewhat stronger than that taken by the Medical Council, whose 2009 Guidelines simply provide that conscientious objection does not absolve a doctor of her duty to her patients under emergency circumstances. At the Oireachtas Abortion Hearings the IMC argued that no special procedures were required for emergency cases, and reiterated its position that the right to conscientious objection must be balanced against the rights of the mother.

The Daly and Mills approach reflects s. 4(1) of the  Abortion Act 1967, which regulates abortion provision under English law. This section allows health professionals to opt out of participating in abortion procedures on the basis of conscientious objection.  However, s. 4(2) provides that a doctor may not rely on the provision in cases where the abortion is necessary to save the life of the woman, or to prevent grave injury to her physical or mental health.  Of course, unlike the 1967 Act, the proposed Irish legislation will only allow for abortion in ‘X-type’ circumstances, so that a doctor must refuse a termination unless it is necessary to save the woman’s life.

Irish women are also entitled to abortions even where their life is not at immediate risk. A doctor or other professional might ask to be exempted from involvement in a termination in such non-emergency circumstances. Then three further questions arise:

What are the Duties of a Doctor Who Refuses to Terminate a Woman’s Pregnancy?

 S. 5(1)(b) of Clare Daly’s Bill requires a medical practitioner who refuses to treat a woman to refer her/transfer her to the care of another medical practitioner who is competent and readily available to perform the treatment. This also reflects the English position. In Barr v. Matthews the plaintiff patient argued that Dr. Matthews had wrongly determined that she was not legally entitled to an abortion or had used undue influence to dissuade her from terminating the pregnancy, and that Dr. Matthews had been influenced in these respects by her Christian beliefs. The Court did not address this argument, but held that once termination had been recognised as an option, Dr. Matthews should have referred the patient to another colleague at once. To similar effect, the 2009 Medical Council Guidelines provide that  ‘Ordinarily, a doctor who objects to providing a particular course of treatment him/herself must inform the woman of that fact, and must make the names of other doctors available to her’.  It would seem sensible to enshrine that policy in future legislation so that an objecting doctor faced with a ‘X type’ case would have a clear obligation to cede any decision-making powers in respect of abortion to a colleague who did not share her objection. That sort of provision, however, may not remove what Robin Fretwell Wilson calls the ‘dignitary harm’ which the direct communication of refusal may do to the patient. We also need to think about the organisational dynamics of medical institutions, and the possible obligation of a medical practitioner to inform her employer of her conscientious objection in advance, so that staffing decisions can be taken around her (and issues of workplace discrimination addressed). In Britain, BPAS have argued that women should be allowed to refer themselves directly to abortion providers, to avoid an unnecessary confrontation with a refusing doctor.

Must A Doctor Provide A Medical Opinion on Whether a Woman Meets the Legal Criteria for a Termination of Pregnancy?

s. 13(1)(b) of Simon Mills’ Bill provides that a doctor, nurse or midwife may refuse to participate in the provision of an opinion that the conditions necessary for a lawful termination of pregnancy exist. This sort of provision will be particularly important where the threat to the mother’s life is related to a psychiatric condition. (Note, however Professor Veronica O’Kane’s suggestion that this could be avoided by constructing a volunteer panel for this purpose). However, if a doctor refuses to provide such an opinion, he must refer the woman to an alternative doctor who is able and willing to provide one. S. 5(1)(b) of Clare Daly’s Bill requires a medical practitioner to provide all relevant information to the woman regarding her right to treatment, but does not distinguish between information and diagnosis.

Can A Hospital Refuse to Provide Termination Services as a Matter of Policy/Ethos?

44 US states allow health care institutions to refuse to provide abortions  which has led to something of a postcode lottery in American women’s reproductive health. Clearly the prospect of institutional refusals to provide abortions, were it to arise in Ireland, would pose significant problems for the vindication of women’s constitutional rights. This year in its Concluding Observations on the Report of Hungary, CEDAW confirmed its opposition to institutional conscience claims. Clare Daly’s Bill clarifies in s. 5(3) that Irish institutions and organisations may not refuse to treat a woman in the pursuit of a conscientious objection. The right claimed here is an individual right. The Bill further provides in s. 5(2) that “it shall be the duty of every health institution to ensure that the necessary number and category of personnel, both medical and non-medical, are made available and are not obstructed” in providing medical treatment to a woman entitled to a termination of pregnancy. In s. 5(1) the Bill confines the right of conscientious objection to individuals “directly involved in the provision of medical treatment”. It excludes those engaged in management, administration or other ancillary services from its remit. Similarly, Simon Mills’ Bill refers exclusively to doctors, nurses and midwives.

Indirect involvement in an abortion was the core issue in the Arizona excommunication of Sr. Margaret McBride.The issue of conscientious objection by non-medical personnel has also arisen in the UK, where the approach taken matches that in the draft Bills. In Janaway v. Salford the Court of Appeals held that a receptionist could not invoke the protection of the statutory conscience clause in refusing to refer a woman for a termination because she was not directly involved in the procedure. Similar reasoning was recently adopted in the Scottish case of Mary Teresa Doogan and Concepta Wood. This rationale is also consistent with the obligation of refusing doctors to refer their patient to a colleague (see Question 2 above and on the philosophical difficulties with that rationale see McLeod here).

Further Questions.

The ill-fated 2010 McCafferty Report to the Parliamentary Assembly of the Council of Europe identified four problems with European conscientious objection regimes: (i) lack of oversight and monitoring of the exercise of conscientious objection, and in particular lack of monitoring of differential regional impacts (ii) doctors’ non-compliance with the conscientious objection regime by failing to report their objection to patients, and ‘informally’ following their conscience against the best interests of the patient (iii) delays in access to medical treatment as a result of conscientious objection, as where a doctor fails to refer a patient to an alternative colleague in a timely manner and (iv) lack of clarity about the scope of conscientious objection. In cases where the objecting doctor has referred the patient to a colleague, there is also the matter of continuity of care during the transition period. Any conscience clause in Irish legislation must address these issues with as much precision as possible. Finally, there is the issue of the political framing of the conscience clause. Stigma remains a significant obstacle to women’s access to abortion. Discussions of conscience should not be used as occasions to honour the ethics of certain religious medical practioners by pathologising women’s reproductive decisions; a difficult task, of course, when we remain within a legal system which treats abortion as a criminal act and grudgingly permits it only in exceptional circumstances.

 

Religion, Conscience and Abortion in Ireland.