Ireland and abortion
Law and Politics Today
By Ellie Lee, Tony O'Brien and Audrey Simpson
What follows is a transcript of the launch of the recently
published collection of essays, Abortion Law and Politics
Today (Macmillan Press, 1998). The launch was held at
Blackwells bookshop, Broad Street Oxford on 13 October 1998.
Ellie Lee, editor of Abortion Law and Politics Today,
was in conversation with two contributors to the book, Tony
O'Brien, Chief Executive of the Irish Family Planning Association
and Audrey Simpson, Director of the Northern Ireland Family
EL: Could you both begin by summarising the law in the North
and the Republic of Ireland, and say what implications this
has for women seeking abortion.
AS: Essentially, abortion in Northern Ireland is governed
by the 1861 Offences Against the Person Act. This was brought
in before partition, and still governs both parts of Ireland.
The act states that anybody who is found performing or assisting
in an abortion is guilty of a felony, and can be sentenced
to penal servitude for life. There was also another act passed
in 1945, but that tends to focus on abortion after the 28th
week of pregnancy. This means there is some confusion about
whether it is illegal to have an abortion after 28 weeks,
but legal before.
The 1861 Act was challenged in 1938 by a gynaecologist based
in London called Dr Alex Bourne, who performed an abortion
on a young woman who had been raped. He was in some ways praised
for doing that, and what is known as the Bourne Ruling became
a loop-hole in the law, introducing ambiguity in relation
to the prohibition given by the 1861 legislation. The 1967
Abortion Act was brought in to clarify what it was legal for
doctors to do, but when it was brought in, the act included
the statement 'This Act does not apply to Northern Ireland'.
I have asked campaigners for abortion law reform such as Dilys
Cossey, who were active at the time, why that happened. It
seems it was much easier to get the act passed by excluding
Northern Ireland, and so this was done for pragmatic reasons,
on this basis that at a later date it would be passed for
Northern Ireland. Of course this has not happened, and we
are left with ambiguity.
In Northern Ireland, there are some abortions done called
therapeutic abortions. For the first time ever, some statistics
were released, which said that there were just over 1700 done
in the year, but within the statistics, spontaneous abortions
or miscarriages were included. The other three categorisations
are terribly obscure, and it does not seem possible to get
information from a gynaecologist, civil servant or any one
else to clarify the categorisations. It seems however that
the vast majority are performed for fetal abnormality, some
to save the woman's life, and some where the woman has a learning
difficulty. These last kind quite often end up in court and
the judge has to rule whether the woman is permitted to have
The question this raises is how can there be therapeutic abortions
under the legislation that is in place? The answer in my view
is that they cannot be done, and therefore these are illegal
abortions, since they are not done to save the life of the
woman. This demonstrates the ambiguity of the situation in
Northern Ireland. The Standing Advisory Commission on Human
Rights, which is a British body set up to ensure Northern
Ireland's laws conform to European legislation, has investigated
for example strip searching and also the law on abortion.
It found that Northern Ireland's abortion law could not withstand
a challenge at Strasbourg before the European Court of Human
Rights. That is to say, the law is inconsistent, ambiguous
and leaves women in the position where they have to travel
to England to get an abortion. Despite being a UK citizen,
a woman from Northern Ireland has to pay for her abortion,
and travel to get it.
EL: What are the number of women who have to do that?
AS: We have a very small population in Northern Ireland of
about one and a half million. It is conservatively estimated
that about 2000 women a year travel to England for abortion,
which is quite alot when you consider the number of women
of reproductive age in the population. The estimate is conservative
is because the figures are based on women going to private
abortion clinics who give their addresses in Northern Ireland.
Of course there are many women who do not do so, because they
are terrified that others may find out they have travelled
to England for an abortion. I recently had a 'phone call from
the Progressive Unionist Party, and the women I spoke to admitted
she had transported 13 women to England for abortion, and
not one of them gave their real address.
EL: What are the different positions of the political parties
AS: Officially or unofficially! Sinn Fein have released a
statement saying they support the right of a woman to choose
an abortion, but not that it should be available in Northern
Ireland, which therefore avoids the issue. Generally, no matter
where the party is on the political spectrum, they do not
want abortion to be available in Northern Ireland.
During the first Peace Process, there was a terrible fear
among politicians that this would bring abortion to Northern
Ireland. You would think it would be the last issue in their
minds, but in fact there was a cross-party delegation of politicians
totally opposed to each others views, who had a joint delegation
to John Major. I believe the content of what they said was
to warn the British Government against doing anything to liberalise
the abortion law in Northern Ireland. This was the position
of the Secretary of State for Northern Ireland at the time
the SACHR report I mentioned previously was released. The
law has only been debated once in Northern Ireland. There
was only one politician who admitted that all politicians
in Northern Ireland are men, who have no idea what it is like
to be a woman faced with an unwanted pregnancy. He was shouted
down by the rest. Another said that Adolf Hitler had more
charity in him than abortionists.
EL: Why do politicians look at abortion that way? Are they
responding to public opinion? Are they like some British politicians
who are not anti-abortion, but do not want to be associated
with what they see as a controversial issue?
AS: I think they are anti-abortion themselves. My organisation,
the FamilyPlanning Association, does alot of advocacy work
about abortion, yet not a
Single MP has ever contacted me to ask what the situation
is like for women. If they are not finding out about the stance
of pro-choice organisations, how can they possibly have an
idea bout what public opinion is? There have been three surveys
done which have shown that the majority of people in Northern
Ireland favour provision of abortion in Northern Ireland.
Politicians are ignoring that, and also ignoring the women
travelling to go and have an abortion. I think it comes back
to their own personal viewpoint. It is also only now that
women are beginning to creep into politics in Northern Ireland.
Women are very active on a community level in Northern Ireland,
as a result of the Troubles. It does worry me, because as
the situation changes, prisoners are released, men go back
to their communities, I am not sure that women will be accepted
as activists, An d there may be a struggle over whether women
should be pushed back into the home.
EL: Tony, could you now explain the situation in the Republic.
TO'B: As Audrey has said, the Republic starts from the same
base line, with The Offences Against the Person Act, that
rules out abortion altogether in the Republic of Ireland.
In 1983, fearful that Ireland might follow Britain down the
route of legal abortion, a constitutional referendum was called
that inserted into the Irish Constitution what was called
the Pro-Life Amendment. This effectively conferred equal rights
upon the fetus. The state was obligated to defend and vindicate
the right to life of the unborn, with only due regard to the
equal right to life of the mother. This amendment was really
designed to ensure no politician could ever change the 1861
Act and bring in 1967 Act style legislation.
I want to put Irish abortion policy in a wider context, that
of the sexual health and sexual politics debate in Ireland.
Until 1973 it was a legal requirement that any civil servant
who was a woman getting married gave up her job. This was
only dispensed with when Ireland joined the then European
Community. Until 1979, so-called artificial contraception
was outlawed in Ireland. It was not possible to gain a license
to manufacture or sell contraception. The pill of course was
widely prescribed for 'other purposes' leading to very high
rates of menstrual irregularity! That is the context in which
the 1983 referendum was debated. The debate was very fierce
and confrontational, centring upon the idea that Ireland must
not follow Britain down the path of 'murdering babies'.
What followed from that was something that I think nobody
expected. The constitutional provision was used to do a number
of things: to close down counselling services giving information
about abortion or pregnancy counselling; to censor imported
magazines that might have adverts in them for British abortion
clinics; to bring about injunctions against student unions
that might be giving information about abortion. There were
a whole series of measures that went way beyond simply preventing
abortion from being legalised in Ireland.
After 1967, Ireland had had a level of backstreet abortion,
although it was difficult to say how many. Mainly, Ireland
simply exported abortion to Britain. From 1983 onwards, every
avenue of assistance through which women could travel to get
abortion was systematically closed down. The most effective
means of getting information quite literally became the taxi
driver at the other end of the boat-train from Holyhead.
In 1992, something very dramatic then happened. There was
an earth-shattering case in Irish terms where a 14 year old
girl, pregnant as a result of rape, determined with her parents
that she should terminate that pregnancy and travel to England
for that purpose. Before doing so, her parents asked the Irish
police if a fetal tissue sample would suffice as DNA evidence
against her rapist. As a result of that, the Attorney General
of Ireland sought an injunction restraining her and her family
from leaving the country, or if they had being able to return,
so that she could not proceed with her termination of pregnancy.
That was something that nobody had contemplated when the pro-life
amendment was put into the constitution.
The Supreme Court ultimately overturned the High Court injunction,
and the consequence of that was that Irish people could no
longer abstract abortion as something that happened somewhere
else. The result was a new amendment in the Constitution,
so that the 1983 amendment could no longer restrict the right
to travel, or restrict access to information.
In 1997, according to official British statistics, which are
likely to be wrong for exactly the same reasons that Audrey
stated for the Northern Ireland, there were about 3336 women
from the Irish Republic who had abortions in England and Wales
last year. At the end of last year, because politicians had
refused to take action on the central issue of access to abortion
in Ireland, another girl who was this time 13 and also raped
found herself at the centre of court proceedings about whether
or not she could have an abortion. This time she was given
permission, but for the vast majority of women it means an
expensive, lonely journey to England. The consequences of
having such a case are in any case dire, with the details
splashed across the papers, so much so that most people could
probably tell you who the girl at the centre of the case in
1997 is. It was reported recently that the father of the girl
in the 1992 case had hanged himself.
Officially in Ireland we don't have any abortion. A pregnancy
that is conceived in Ireland and agonised over in Ireland,
and the decision to terminate made in Ireland apparently isn't
an Irish abortion, because it is terminated in England.
EL: Your organisation, the IFPA has recently made a submission
to an Inter-Departmental Working Group on abortion in Ireland.
Why has the Government set this up, and could you say whether
that represents a positive development?
TO'B: After the case in 1992, one of things the Irish Government
tried to do was to reverse the judgement in that case, called
the 'X' Case. The Supreme Court judgement in that case effectively
meant that where there was a real and substantial risk to
the life of the woman as a result of pregnancy, which in that
case did include a risk of 'self-destruction' or suicide,
then a right to abortion existed. This was not a right to
travel, but a right to abortion. The Government choose to
respond to that by asking people to reverse the Supreme Court
decision, by putting down an amendment that would effectively
remove the category of suicidal thoughts or 'self-destruction'
as a ground for abortion in Ireland. They were defeated by
65 per cent in the referendum. They had made in clear in advance
that if defeated, they would bring in legislation that would
resolve the inconsistency between the 1861 Act and the Constitution,
the latter supposedly taking precedence and creating a right
to abortion in certain circumstances. They refused to do that
and introduce legislation on information and make it easy
to get counselling. No firm proposals were put down, which
was the 'C' case came to light . The response to this case
was to set up the Inter-Departmental Working Group, which
called for submissions, and should publish proposals, which
we are currently awaiting.
EL: Is there any other way of pushing things forward?
TO'B: Public opinion is the central determinant. Public Opinion
has changed very dramatically in the last five years. In the
Irish Times, there was a report about a independent poll of
a very large, representative sample of the public in the aftermath
of the 'C' case, in which they asked people about circumstances
in which they might or might not support the availability
of abortion facilities in abortion. Only 18 per cent were
prepared to say there were no circumstances in which they
could envisage supporting the provision of abortion facilities.
67 per cent supported the provision of facilities where necessary
to save the life of the pregnant woman. The proportion tailed
off to about 24 per cent for facilities where abortion was
wanted for any reason. This has shown how much things have
changed. People are increasingly aware that, using ONS 1996
statistics, one in ten of all Irish conceptions ends in an
abortion in England. In women under 25, that rises to 21.5
per cent. It is the function of organisations like my own
to ensure that those facts cannot be ignored, and that something
is done about the fact that Irish people, as opposed to Irish
politicians feel the need for change. I think that despite
the unwillingness of Irish politicians at the moment to put
proposals forward, that will sooner or later have to respond
to that change in public opinion.
EL: Audrey, in England, pro-choice organisations are keen
to highlight the problems facing women from Northern Ireland.
To what degree would you perceive there to be a way of mobilising
people in Northern Ireland itself to bring about change?
AS: It is interesting listening to Tony speak about the fact
that there are some discussions taking place at the Government
level in the Republic about what to do, whereas in Northern
Ireland that simply isn't happening. Northern Ireland is supposed
to be more progressive than the Republic, but they at least
have the Inter-Departmental Working Group. Also in the Republic
they have a relationships and sexuality education programme
in place and in Northern Ireland we have not even looked at
this since 1987.
So there seems to be more movement in the Republic than the
North, which makes me wonder why that is happening. I went
to a conference in Amsterdam, and listened to a gynaecologist
from an African country talking about how abortion is illegal
in his country. He said he spoke at alot events to bring to
light the reality of the situation in his country. He was
prepared to speak about abortion, but we can't get anyone
- not a GP, a gynaecologist, a nurse, even a care assistant.
We can't get anyone from the medical profession to talk about
what is wrong with the situation in Northern Ireland. When
I look at what is happening in the Republic, I think that
Northern Ireland isn't even a Third World country. It's a
Fourth World country.
There seems to be an extraordinary fear about abortion. It
is interesting with the start of the Assembly that anti-choice
groups seem to have a belief that once the Assembly comes
into place we will get abortion in Northern Ireland. I don't
know why they think this, since I think it could be even worse,
and we may get an even more restrictive law. We could find
ourselves with a law like the Republic. Anti-choice groups
have started to do some really vicious picketing, for example
at the Brook Clinic. This opening in 1992, but they are still
picketing it, on the basis that they think Brook does abortion
referrals. In fact Brook doesn't do this - they give out the
FPA number, and we do the referrals.
Regardless, they stand outside the clinic, they call the doctors
and staff by name and call them murderers. They are very active,
but we cannot gain the same level of activity on the pro-choice
side. I think this is because it is much easier to motivate
people against something. People seem to do less when they
are for it. Unless we get a case like the ones Tony has talked
about, then I don't think much will happen.