Sparing Enda's blushes. Speaking of I.M.E.L.D.A. and #knickersforchoice

Speaking of I.M.E.L.D.A. is a direct action performance and protest group based in London, established to raise awareness of the Irish and Northern Irish abortion laws, which effectively require women to travel to England to terminate pregnancies in almost all circumstances. I.M.E.L.D.A. is an acronym, which stands for ‘Ireland Making England the Legal Destination for Abortion’. The name Imelda has an older origin. ‘Imelda’ was the code word for abortion used by the Irish Women’s Abortion Support Group (IWASG), which helped women travelling from Ireland to access abortion in England. A code word was needed to protect women in the 1980s who might be telephoning to make arrangements (at a time when access to abortion information was heavily censored) on a shared line. The members of Speaking of Imelda usually wear red for performances. This is another gesture to to the IWASG, who might tell a woman travelling from Ireland by ferry and by train to look out at Paddington Station for the woman in the red skirt who would look after her for the night.

In the last six months or so, the Imeldas have adapted this image of practical care, secrecy and private solidarity for public protest. Some of the performers were members of the IWASG. Some are connected to the Spanish pro-choice organisation ‘My Belly Is Mine‘. Most are Irish women more recently settled in London. They have staged a variety of provocative actions. At the St. Patrick’s Day parade in London, women in red wheeling ‘solitary suitcases that scream one night only’, wove their way through the crowd of spectators, asking directions to the abortion clinic. In August, when the story of Miss Y broke, they stood on the steps of the Irish embassy to recite a ‘secular rosary’ of the names of Irish women subjected to gender-based violence by the Irish state.

Their most recent campaign is #knickersforchoice. During the holidays, the Imeldas appeared, in red headscarves and sunglasses, to polish up the brass and granite of the Irish embassy building with their underwear They have since asked supporters to take photos of knickers emblazoned with pro-choice slogans hanging in public places and tweet them with the hashtag #knickersforchoice. At the March for Choice in Dublin, they appeared in costume at the margins of the crowd, pints of Guinness in hand, with a banner asking for ‘choice in Ireland’ sewn out of bright red knickers. In the evening, they hosted a station where attendees could make their own #knickersforchoice.

On October 3rd, the Imeldas arrive at the Crown Moran Hotel in Cricklewood, but not all of them are in red. While some distribute informational knickers outside the hotel, two are undercover in dark dresses. They need to make it inside, to where the Taoiseach is the guest of honour at a Fine Gael dinner with Irish emigrants based in London whose views on abortion are of no interest to the government   donors paying 1200 euro a table. They are successful. They welcome him to England. As they chant reminders of the ’12 women a day’ who travel from Ireland to England for abortion, he reaches for a steadying glass of wine. A pair of knickers asking him to repeal the 8th Amendment is served to him at his table (one of his companions quickly covers it with a napkin to spare the Taoiseach’s gaze). Within less than a minute, they are steered out of the hall by security, setting off a rape alarm, still chanting “Solidarity to our Sisters in Ireland!”

Why is this sort of activism important? Why is it more than a bit of craic? Is it just a collection of improper insults, much less important than the real business of law reform? In In Spite of Plato, Adriana Cavarero retells Plato’s story of the Greek philosopher Thales and a young, attractive maidservant from Thrace. The philosopher was walking along, contemplating the stars,  performing the great and important work of truth-seeking, distracted, when he fell into a well. The foreign slave girl laughed at him, because he had been so busy with what he thought of as grand conceptual matters that he has become awkward and clumsy around the real and the practical. She laughed because ‘she fully belonged to the world of life’, as a slave and as a woman. She belonged to ‘the services and concrete rhythms of life that the patriarchal order assigns to women’. This is an oppressive space, but hers was an unrestrained, and insightful and ‘desecrating’ laughter. It drew attention to the woman’s presence even where she has no place. It redirected  focus to the facts of life, to the ways in which the lives of men and women are constrained.

The Imeldas’ mockery is important as a counterpoint to Fine Gael’s po-faced ‘statesmanship’. For the government, abortion is a matter of deep moral and political consequence for the entire populace – to be held away from the ballot box until the moment is exactly right. It is the constitutional issue of our time. It is a matter for cautious unpublished advice by the Attorney General. A referendum cannot be rushed. A proper political debate should not be allowed to excite undue passion. Reform cannot be triggered by the mere facts of any individual case, but must be preceded by careful weighing of abstract propositions. The purpose of any legislation is to keep the floodgates of choice firmly closed.

And then, in Cricklewood, the Taoiseach is ‘knickerbombed’ into embarrassment. The mockery, with its connotations of sex and scandal – dirty laundry – creates a space in which he can be reminded of troublesome reality. His dinner is, for a moment, spoiled.

I wonder did they bring him a fresh plate?

Sparing Enda's blushes. Speaking of I.M.E.L.D.A. and #knickersforchoice

On Repealing the 8th Amendment. #repealthe8th

Our regular contributor Mairead Enright spoke at the recent ‘Repeal the 8th’ conference in Dublin last Saturday. A video of her presentation is below. You can find other videos of the day (by Paula Geraghty) here.

To join Lawyers for Choice, email lawyers4choice@gmail.com.

To write to your TD on the issue see here.

To sign the Repeal the 8th petition see here.

For details of the March for Choice see here.

 

The effects of the 8th Amendment range far beyond abortion. The Amendment has come to have consequences for all cases of maternal-foetal conflict.

For example, it may be that prevailing interpretations of the constitution entail that:

  • A living but unviable foetus (fatal foetal abnormality or inevitable miscarriage) can evidently assert the constitutional right to life against the mother, even at grave cost to the woman’s health.
  • It may be that the unborn has a right to an opportunity to be born alive, such that doctors are required to
    • attempt to sustain a second semester pregnancy until viability, even at grave cost to the mother’s mental and physical health.
    • favour an attempted early live birth even where this is not in the best interests of woman or child.
  •  The mother’s consent to medical treatment – as an offshoot of her constitutional rights to privacy, dignity and bodily integrity – plays almost no constitutional role in cases of maternal/foetal conflict. Thus women can be subjected to treatment in the form of Caesarean section, induced labour and so on, without very much regard for their best interests, or their refusal of medical treatment. There is more than an echo of the past justification of symphysiotomy here.

There is no legislation or reported judgment, which adequately clarifies the law as it applies to any of these scenarios. Very little has been published to explain the ethical and legal underpinnings of likely treatment options. At the very least we should investigate opportunities for specific legislation on maternity care in cases of maternal-foetal conflict.

The presence of the 8th Amendment leads to the mischaracterization of certain medical issues which can occur during pregnancy as ‘abortion adjacent’, when they are nothing of the sort.  The 8th Amendment requires us to misinterpret and misconstrue women’s valid treatment needs.

The 8th Amendment is poorly designed. It has strayed away from the people’s intention, and ground to a halt. When a constitutional provision becomes mechanically unworkable in this way, repeal and replacement are standard responses.

The 8th Amendment is an unusual constitutional provision because – through the Protection of Life During Pregnancy Act 2013 and practice guidelines for the medical professions – it is regularly interpreted and applied by agents other than the courts. Indeed, we might say that doctors are the primary interpreters of the 8th Amendment.

Over the course of thirty years, we would have expected the courts to flesh out the text of the Amendment much more than has already been done. However, the courts very rarely have the opportunity to consider the Amendment because it is often impossible for a pregnant woman – especially if she is ill or distressed – to bring her case to the superior courts in good time, and because it will be very difficult for her to assert standing before the courts if her pregnancy is already terminated. The criminalization of abortion poses another obstacle to the emergence of suitable litigation. Most of our constitutional jurisprudence on abortion derives from (i) cases brought by third parties such as S.P.U.C. and (ii) unusual cases of young women in the care of the state.

Because the courts so rarely have the chance to consider the 8th Amendment:

  • Our abortion jurisprudence is very vague and very thin. The X case (which concerns a raped, suicidal, teenage girl in early pregnancy) has been stretched to apply to very different kinds of case.
  • Doctors must guess at the application of the X case to a wide range of scenarios which have never been considered by any court.
  • The 8th Amendment has fossilized. This is because doctors are not judges. They do not have the authority to develop new law. They have, naturally, been unduly cautious and the law has stagnated. The Supreme Court has repeatedly expressed that the Constitution should adapt to the developing needs of the people, but the 8th Amendment is no longer able to do so.

 When a constitutional provision is placed beyond workable interpretation, we are entitled to remove that provision and start again. There are plenty of precedents for this course of action. For example:

  • The 1992 referendum which secured the right to information and the right to travel was a response to judicial restriction of those rights by virtue of their interpretation of the 8th Amendment.
  • The Citizenship referendum in 2003 was, in part, a response to judicial decision-making on the rights of Irish-born children whose parents were vulnerable to deportation.
  • The recent children’s rights referendum was, in part, a response to judicial interpretations of the constitutional rights of the marital family.
  • The forthcoming marriage equality referendum is designed to respond to difficulties with the interpretation of the constitutional provisions on marriage.

A Referendum on the 8th Amendment is an opportunity to bring the Constitution into line with prevailing social values around pregnant women’s medical care.

 The Constitution is the place for broad statements of shared communal values, which guide the courts in their interpretation of the law, and in their development of constitutional rights.  It is not the place for tests, rules and regulations.

If we remove the 8th Amendment, the right to life will remain, and it will be possible to maintain strong  (but not unworkably absolute) standards of respect for unborn human life. In addition, it will be possible for certain of women’s constitutional rights, which have been limited by the 8th Amendment, to bloom in the gap it will leave. There is a strong argument for adding an expressly enumerated right to bodily integrity to the Constitution. The right already exists as an unenumerated right. Explicitly including it in the Constitution, in the context of a repeal of the 8th Amendment, would:

  • Firmly guide the Courts in future cases of maternal-foetal conflict, and prevent the re-introduction of an 8th Amendment style interpretation ‘by the back door’.
  • Incentivise the future development of human rights oriented medical practice in Ireland.
On Repealing the 8th Amendment. #repealthe8th

Time for Our Referendum

The following is the text of a letter written by a number of regular HRinI contributors and signed by over 100 academics, which was published in the Irish Times today (full list of signators only available online). Here we have added a number of additional signatures received after the letter went to press. Others who wish to express their desire for a referendum to repeal the 8th Amendment to the Constitution should sign the petition organised by the Abortion Rights Campaign here

Dear Editor,

We are people in or from Ireland. We are under the age of 50. We could not vote in the 1983 abortion referendum which profoundly limited women’s autonomy. No subsequent referendum has provided an opportunity to undo that damage. Many of us have lived our whole lives under an abortion regime in which we have had no say. As a generation we have grown up knowing that the State would compel us to travel if we wished to exercise substantive control over our reproductive lives. Continue reading “Time for Our Referendum”

Time for Our Referendum

Ireland before the UNHRC.

I am in Geneva as part of the Irish NGO delegation to Ireland’s 4th Periodic Review under the ICCPR.* Readers will be aware that the UN Human Rights Committee heard testimony early yesterday from some 12 Irish NGOs and civil society organisations, and from the Irish Human Rights and Equality Commission. It might be interesting to give a sense of how the day falls into place. The Committee meets in the Palais Wilson, which is down by the shore of Lake Geneva. People congregate in the cafeteria where the idea is that, as Tobias Kelly writes in This Side of Silence, it can be possible to buttonhole Committee members (if they appear, and if they are willing). There is a great collaborative buzz  in the room, as people mill around, revising their submissions, anxious in anticipation of the next event. The age profile is relatively young and there are a lot of women in the room.  There are very different levels of experience – from first time small campaigns to organisations like the IFPA which have been around for generations. By and large, the groups have a common agenda: the notable exception arrives in the form of two young men from Family & Life and the Pro-Choice Alliance, whose position on abortion is, of course, in conflict with that of the Irish Human Rights and Equality Commission, the other assembled interested NGOs, and on my reading, the Committee itself.  The Irish delegation also features several activists whose lives are directly affected by issues under consideration by the committee – particularly from TFMR Ireland, Survivors of Symphysiotomy and the Irish Traveller Movement. They do some of the most effective advocacy work of the day.

At midday, each of the NGOs has a two minute slot in which to make a briefing statement. The Committee has received written submissions from the NGOS in advance (see here under Ireland), but this oral statement is a chance to define your group’s priorities for the Committee. I learn a lot about what is possible in two minutes. The room in the Palais Wilson is a study in poor design. It is long, narrow, level and warm, with the Committee sitting in a rectangle at the top of the room, and the delegates – and press, if there are any, and perhaps observing students – arrayed in rows behind them. The State’s delegation, when they arrive later in the day, sit on a raised dais at the top of the room. The effect of the layout is that, from the back of the room, you can’t see any member of the Committee, even though they’re not that far away, and you would struggle to tell which of the suited gents from the Departments is speaking at any given time. I sat at the very back, with some of the group from Survivors of Symphysiotomy. The acoustics are poor. Without the translators’ headphones in, you often can’t hear a thing, except the steady typing of delegates taking notes, for themselves or for twitter.

Break for lunch, and then a short and informal briefing meeting,  in a smaller room at which members of the Committee can ask questions of the assembled NGO delegates, and of the members of the  Irish Human Rights and Equality Commission. As people find a space in the small room, an odd tableau assembles by the back wall – the young men from the pro-life NGOs leaning up against a marble mantelpiece, ready to interject, with the women and men of various pro-choice movements arranged in front of and around them.  At this meeting, you can get a strong sense of what is going to happen when the State presents for questioning. Several groups – particularly Doctors for Choice, the Irish Traveller Movement, and the Commission – were able to make very effective responses to the Committee’s queries.

Immediately afterwards, the Minister for Justice arrives, together with the Irish ambassador and a phalanx of civil servants from the Departments of Justice and Equality, Health, Foreign Affairs and the Office of the Attorney General. The Minister outlines Ireland’s efforts, such as they are, to comply with the International Convention on Civil and Political Rights and details some recent developments in Irish human rights law and practice. There is some surprise that she never mentions the issue of Traveller ethnic minority status as an achievement. After the Minister’s opening statement  the Committee asks a focused and demanding series of questions, based on the list of issues here. They are particularly strong, as I had hoped they would be, on the issues of historical reparations, and abortion rights. It is clear both that the NGOs and the Commission have done a hugely effective job, and that the members of the Committee are highly engaged and very well briefed. The State delegation has a 15 minute break in which to consider the questions, before presenting replies.

The mood is good. The quality of the questioning strikes home with everyone. How much of the domestic law-making process is based on rigorous, informed questioning of this kind?  How hard do NGOs like the IFPA or Survivors of Symphysiotomy have to work to get questions like the ones below on the domestic agenda?  It’s a pity, on reflection that Irish media outlets haven’t sent more journalists to these hearings, simply because the discourse on many issues is so different in this context. Too much media reporting of human rights issues begins and ends with the ‘human tragedy’ angle. There is much less interest in/engagement with/informed critique of the sorts of structures which might be proposed to address and prevent such violence.

Of the state replies, when they come, the less said, perhaps, the better.  The mood in our camp deflates a little. People are tired. I am told that in the ICCL Green Room back in Dublin there were audible sighs at some of the Government responses.  One of the Committee members has brought some of his Masters students to observe. Among them is a former student of mine. Later, after the State submissions, he expresses amusement at how little the government’s representatives are willing to give away. It is hard to tell how much of what is said is immovable government policy, and how much is stalling.

I will be paying special attention to three issues in the follow up questions tomorrow:

  • Professor Yuval Shany, having noted Ireland’s ‘disappointing’ refusal to bring our abortion law into compliance with the ICCPR, reminded the Minister that her predecessor had described the operation of the law in cases of fatal foetal abnormality as ‘unacceptable cruelty’.  He then asked a series of very detailed questions about the operation of the Protection of Life in Pregnancy Act 2013. These, by and large, mirror the joint submission of the Abortion Rights Campaign, the IFPA, Doctors for Choice, Lawyers for Choice and Termination for Medical Reasons, Ireland. The Government’s response ignored all of these questions. It simply asserted the legitimacy of the constitutional position as striking a ‘balance’ between the right to life of the mother and that of the unborn. The assertion is that Irish abortion law is the product of some sort of delicate evolutionary process which cannot be rushed. It is, to paraphrase the Minister, a nuanced and proportionate response to a profound moral question. Mary Jackson, the Principal of the Department of Health asserted that Irish abortion law is compatible with the ICCPR (even though it does not permit abortion in the cases of rape, incest or fatal foetal abnormality) because the convention must be read as a whole, and Ireland is complying with Article 25 ICCPR  (the right to vote and participate in elections….) by giving effect to the ‘will of the people’. Make of that what you will.
  • Christine Chanet raised the issue of the investigation of the Magdalene Laundries. She notes the narrow remit of the McAleese report and questions the degree to which it was independent of the State. The twist in the question is very telling: “Why is the state so reluctant to find out what happened in the laundries?” The Minister almost omitted to answer this question, but insisted again that the Magdalenes  report and scheme were on solid ground. UNCAT have already pressed this issue with the last government, and it isn’t going to go away.
  • Professor Shany also raised the issue of the symphysiotomy redress scheme. This was an especially useful question because he did not simply ask an open ended question about what the State proposed to do for survivors. He acknowledged the redress scheme, and asked what the State now proposed to do, given that the majority of survivors had refused to co-operate with it and had criticised its failure to produce accountability.  The tenor of Professor Shany’s question is important because it may suggest that survivors should be allowed to participate properly in designating the remedies they receive for human rights abuses. This is a refreshing perspective, because it directly contrasts with the government’s paternalism in respect of members of S.O.S. The government offered no response yesterday, but has promised to address ‘additional issues’ at tomorrow’s session. If we read this question together with Madame Chanet’s question on the Magdalenes, and Prof. Shany’s later question on proposals to investigate the Mother and Baby homes, it may be that the Committee is about to take a firm  stance on the state’s obligations to repair historical injuries, and on the right to an effective remedy.

*I am tagging along with Survivors of Symphysiotomy, and I am a member of the newly-formed Lawyers for Choice (@lawyers4choice). The delegation is led by the ICCL. The University of Kent have funded my trip. However, this is a personal reflection, and all errors, opinions and omissions are my own.

You can watch  tomorrow’s session live at http://www.treatybodywebcast.org/ from 9am. A number of people are live-tweeting from Geneva and elsewhere using the hashtag #ICCPR. Look out in particular for @Doctors4Choice, @SoS_Ireland, @ICCLtweet and @smullallylaw ( Prof. Siobhan Mullally of UCC Law and the IHRC). I’ll be tweeting at @maireadenright.

Ireland before the UNHRC.

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.