Abortion Secrecy/Abortion Privacy

These are notes for a  response to Prof. Carol Sanger’s talk ‘Abortion Secrecy/Abortion Privacy’ given at UCC on June 6.  An earlier version of Prof. Sanger’s talk, given at Birmingham Law School, is available to watch here, and is well worth your time.

Abortion Secrecy

Secrecy is as much about what others would think if they knew, as about what you get up to when nobody can see. It is possible to think of secret agency in noble ways. In The Gift of Death, Derrida argued that the act done in secret can be the most profoundly ethical act – that which I must do and account for by myself, despite its conflict with my duties to others, without recourse to any public justification. Part of the work of organisations such as Speaking of I.M.E.LD.A. has been to make the secret abortion appear  as the subject of brave and unexpected speech, of anger, of demands for justice. In the prevailing Irish political discourse, however, the secret abortion is always something sad, tragic and furtive. Perhaps, there is a tendency to think of secret abortion as a liveable repetition of the secret pregnancies, and secret births of the recent past – the Anne Lovetts and the Joanne Hayes.

Carol Sanger uses the term ‘abortion secrecy’ to characterise the ways in which women conceal their decision-making and intentions around abortion from others around them. Secrecy, on Sanger’s account, refers primarily to individual agency. If my abortion is ‘private’ it is because I am able to control information about it; the facts are mine alone to reveal. I may choose to hide it, but I am not compelled to. By hiding or revealing information, I can define myself as I am known to and by others. By contrast, if my abortion is ‘secret’, it is because I am obliged to keep it hidden from others because its disclosure would expose me to some risk or catastrophe. It is not simply that I prefer not to reveal my secret, but that I will be hurt, or will hurt others, if I do. There is an element of duress, or need about it. This is true even if the effort to keep secret is careful, considered, and rational given the prevailing social circumstances.

Why keep an abortion secret?

It is clear that Irish women have plenty of reasons to keep abortions secret. In particular, except within the narrow constitutional limits, abortion within Ireland remains a crime, which attracts a maximum 14 year prison sentence. Although the law may not deter women from seeking abortions, it likely discourages women from disclosing that they have had abortions. Moreover, it is doubtful that the new Act heralds an entirely new era of social acceptance of the termination of pregnancy. We should not be quick to forget how long it took to ‘legislate for X’, how insistent the government was on legislating within the narrowest possible terms, and how much pressure was placed on Fine Gael to refuse to legislate at all,  (despite what the Bacchanalian atmosphere in the Dail chamber on the night the legislation passed might suggest). As the debates around the Protection of Life in Pregnancy Act  (in which doctors and law-makers alike were so careful to distinguish between medically necessary terminations of pregnancy and abortion; between deserving and undeserving women )amply demonstrated, abortion also attracts a broader public aura of wrongdoing, even where it is not directly criminalised.  And for all the public grief expressed about the death of Savita Halappanavar, we should not forget that for many on the right, the abortion she asked for cannot be called an abortion at all.

For Sanger, the burden of keeping a secret, and the threat of its becoming known to others, condition how women experience the abortion procedure, the decision-making process and the aftermath. We can understand that this burden affects women’s ability to avail of the rights available to them under Irish law – for instance, they may feel unable to assert themselves against decision-makers. We know that they may also feel unable to access appropriate aftercare, thus placing their health at risk.

Irish law and the woman seeking a termination: secrecy and privacy.

Working in broad brush-strokes, we might surmise that Irish abortion law does something to acknowledge the desire for secrecy. Thus, for instance, there are traces within Irish law of regard for a woman’s entitlement to shun publicity when she seeks a termination. For example, in Ireland, as in the United States, the case law on abortion anonymises the women who have challenged the constitutional position – A,B and C,  and D before the European Court of Human Rights; Miss C and Miss D before the High Court, and famously, Miss X before the Supreme Court. The names of these women are not part of the public record. Secrecy is the reason. In the High Court explained that ” the first defendant was a minor and as the distress from which she was suffering would have been immeasurably increased had her name become known”. It was the “urgent desire” of her family that the case be heard in camera. It is also worth noting that, now that the government has finally legislated for the constitutional right to an abortion, the Protection of Life in Pregnancy Act provides that the annual reports on abortions carried out within Ireland will not name the women involved. (There are, nevertheless, simple concerns about women’s right to control publicity around the decision to have the abortion once it is made. In August 2013 a termination of pregnancy at the National Maternity Hospital in Dublin – mistakenly understood to be the first under the legislation – was leaked to the press. Although terminations took place in Irish hospitals before the legislation was passed, it may be that post-legislative tensions will generate certain incentives to breach privacy.)

More broadly,  Irish law does little to relieve women of the obligation to share knowledge around, and influence on, their abortion decision in process. An Irish woman seeking an abortion is inevitably part of a large network of other actors, the size of which increases in proportion to her own vulnerability. Vulnerable women cannot have meaningful decisional privacy under the current regime – whether from officialdom or from  intimates. It is still the case that women in the care of the state who fall outside the ‘risk to life’ regime may find themselves compelled to go to court to exercise their right to travel. For example, women within the direct provision system require the co-operation of  several officials before they can travel. Poor women who need to travel, will also find themselves compelled to involve others in their decision, whether they like it or not, in order to raise the necessary funds for travel, accommodation and so on. A significant degree of economic and social independence is necessary to enact privacy within this regime. The law is designed only to regulate and impact the decision-making of the most vulnerable women. It invalidates the desire to end one’s pregnancy on one’s own terms.

There is also a sense in which an abortion remains the business and concern of a wider religious community. Women in Ireland may feel vulnerable to interference from uninvited religious third parties. In July 2013, concerns were raised over the pro-life organisations SPUC and Precious Life  funding a case designed to injunct a woman from travelling abroad to terminate a pregnancy. SPUC, in particular, has played a significant role as a public interest litigant in efforts to constrain women’s abortion rights in Ireland. (The woman’s boyfriend had been put in touch with these organisations by the Citizen’s Advice Bureau.)While abortions are not carried out, for example, at family planning clinics, pro-life organisations have protested outside and even occupied family planning offices, intimidating clients and threatening staff, and it is not difficult to imagine that these protests represent an indirect attempt to influence women’s decision-making. Women also remain vulnerable to the activities of rogue crisis pregnancy counselling services. The operation of the conscience clause within the new Act has also raised concerns – that doctors who object to termination may not comply with the legislative obligation to hand the woman’s care over to an alternative practitioner.

Dangerous Secrets?

Secrecy and privacy are not alternative legal concepts but are implicated in eachother’s operations in complex and troubling ways. Perhaps one of the best examples of this phenomenon in recent years was the debate on the ‘suicidal ideation’ provisions of the Protection of Life in Pregnancy Act. Even leaving aside questions about the ideological stance of psychiatrists made gatekeepers to abortion under the new legislation, concern has been expressed about the fact that a suicidal woman may have been examined by up to seven doctors – two more than are required in the case of physical risk to life – before the procedure is permitted under the Protection of Life in Pregnancy Act. The genesis of this procedure is instructive. In the Dail and in the Seanad, women entitled to access an abortion under this limb of the X judgment  were represented, in effect, as harbouring a secret, murderous desire (if not an intent), masked by the invocation of suicide. Both mental illness and abortion are still largely unspoken and heavily stigmatised experiences in Ireland. To the majority of those participating in the legislative process, the suicidal pregnant woman was a secret, perhaps even to her -presumptively incapable – self.  Accordingly, to legislate properly for her,  it was necessary to marshal panels of experts capable – presumably through some confessional technique – of divining the woman’s true intent. Failing that – and perhaps they must always fail –  the experts might evaluate and certify the risk of suicide. To borrow Sanger’s terms, it may be that what has happened here is that a terror of a particular kind of secrecy is seen to justify an erosion of decisional privacy. I say ‘particular kind’ of secrecy because this example also makes clear that secrecy invites different interpretations and performs different functions – Miss X and her parents were entitled to keep their identities secret, and that secrecy was necessary to the functioning of the abortion law. The secret ‘true’ intention of the ‘suicidal ideation’ debates is something altogether different – insubordinate, dangerous; a declaration of non-belonging, an attempt to circumvent the proper order or a refusal to be governed. A certain agency is possible even in the context of imposed secrecy, and that agency can trouble the state.

The politics of abortion secrecy in Ireland

In addition to its effect on individual women, Sanger argues that abortion secrecy has an important political ‘trickle up’ effect on the polity. If women cannot speak openly about their experiences of abortion – if citizens do not have ‘contact’ with women who they know have had abortions – the quality of public discussion about abortion is affected, and the possibility of informed political deliberation on the matter is compromised. The public is deprived of women’s testimony, which is one of the best guides we have to the experience of abortion. For Sanger, the impossibility of private disclosure disfigures public discourse.

Viewing this point slightly askance, we might say that certain kinds of public discourse around abortion depend on secrets and silencing. To borrow from Derrida, secrets – particularly inherited secrets – have kept women, as much as vice versa. Abortion in Ireland – transnational abortion – is best characterised as an ‘open secret’. Psychoanalytic theory teaches us that secrets from the past – whether or not they are officially disclosed – have a tendency to leak out and impinge upon the present; unbidden and uncontrollable. But most of the secrets which have governed women’s bodies have not been effectively repressed in this way. In Ireland, women’s bodies have often been indirectly regulated by open secret – by ‘everybody knew, but nobody said’. (The Nelsonian blindness of the open secret has, at the same time, of course, made all kinds of feminist organising possible). In The Epistemology of the Closet Eve Kosofsky Sedgwick suggested that an open secret is never really open. Its depths are only visible at all to insiders. Outsiders, by contrast, have the power to ignore it – they are protected in a sense, because the secret is never properly revealed.  The secret is communicated, but in a low stakes way – it doesn’t cause pain, or upset or confrontation. It is agentless – known without anybody telling.  Open secrets tend to mystify difference, to leave it unmarked or to erase its essence.  Accordingly, open secrets prevent the conflict, the political engagement and self-examination that facilitate change. The hyper-regulation of abortion in Ireland can co-exist with the right to travel, not because we believe that Irish women do not really have abortions, but precisely because their doing so is an open secret.

Increasingly, in Ireland, it seems that we place faith in the power of public testimonials to enable us to address the injustice done in the shade of open secrets. Three of the women who have litigated abortion cases- Miss C, Miss  D and D – have subsequently set aside that anonymity to discuss aspects of their experiences in the media. We know some of them by name, some ‘to see’, some by voice only. In recent years we have also heard from other women who have not come before the courts, notably the members of Termination for Medical Reasons Ireland . Two such women: Siobhan Whelan and Anne Mellett have brought petitions before the UNHRC. And of course, we know the names and stories of  some women who were denied access to abortion by members of the medical profession (left as gatekeepers to a constitutional right which they proved unequal to the task of interpreting); Savita Halappanavar and Michelle Harte. The  stories made public tend to turn around the core pressure points of Irish abortion law: the ‘constitutional’ abortion available where the mother’s life is at risk, and the types of abortions which many argue are the next logical extensions of the constitutional position: those intended to end a pregnancy which is the result of rape, and those intended to end a pregnancy where the foetus  bound to die in the womb or very soon after birth. However, we have tended not to hear the names and voices of women who have abortions for so-called ‘social’ reasons until very recently.  Exceptions include  Janet ni Shuilleabhain, who made her story public just this year via twitter, and the IFPA’s Abortion Journey compilation. Films and tv documentaries such as Like A Ship in the Night, 50,000 Secret Journeys (commissioned by RTE in 1994 but only shown for the first time in 2013), No More Shame (in which anonymous stories submitted online were read by actors) and The Moment of Truth they underscore that disclosure remains highly unusual in the Irish context, and that some secrets remain easier to share than others.

The disclosure of a secret to a mass audience – to an imagined unitary public entitled to know the truth – is a very peculiar kind of disclosure. The publicly disclosed secret is very quickly assimilated to prevailing politics. Disclosures are likely to be measured against prevailing public norms. Some women, more than others, will be considered deserving of an audience.Such moments are very different from that which Spivak calls ‘ethical singularity’ in which one person offers a secret they ‘desperately want to reveal’ to another person in a ‘relationship of singularity,  responsibility and accountability.’ To deal justly with secrets requires the possibility of one-on-one encounters. At present the bulk of those encounters are happening outside of Ireland – part of the day-to-day hospitable practice of organisations such as the Abortion Support Network. The great success of Irish abortion law has been to export the encounters – with medics, officials, organisers – which, if they could be replicated here, might make abortion secrecy unnecessary.

Abortion Secrecy/Abortion Privacy

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