PCF pro choice forumFor those with a specialist interest in abortion issues
Information Resource Library Opinion, Comment & Reviews Publications Psychological issues
pro choice forum   Search
Abortion and disability
Ante Natal diagnosis
Abortion law
Ireland and abortion
Reproductive technologies
Ethical issues
Contraception
What is PCF?  
Useful linksSubscribe  
Information Resource Library
Ireland and abortion
   
 

Legal Issues for Pro-Choice Opinion - Abortion in Ireland

On 25 November 2001, Pro-Choice Forum held a day of discussion at Queen's University Belfast, entitled 'Legal Issues for Pro Choice Opinion'. There were two main aims for the day; first to provide a forum for pro-choice opinion formers, from a range of cultural contexts, to discuss key issues about abortion law, and second, to disseminate main aspects of the day's discussion through printed and on-line media. There were three sessions held during the day, the first on strengths and weaknesses of different forms of abortion law; the second on abortion in Ireland; and the third on abortion and disability. A summary of the second session is below. To read a summary of the first discussion click here, and to read a summary of the third, click here.

Abortion in Ireland

This session opened with updates from Audrey Simpson, director of fpaNI, about developments with the Judicial Review of medical practices relating to abortion and the provision of abortion services in Northern Ireland, and from legal consultant Julie F. Kay, about the upcoming referendum in the Irish Republic. A discussion paper from Dr Eileen Fegan and Rachel Rebouche, of Queen's University Belfast Law School, followed about abortion in a Bill of Rights for Northern Ireland.

Abortion in Northern Ireland
Dr Audrey Simpson, director fpaNI

In May 2001 fpaNI took the historic step of initiating legal action against the Department of Health, Social Services and Public Safety (DHSSPS). fpaNI asked the Courts to advise the Department that it has a statutory duty to ensure that all women in Northern Ireland have equal access to reproductive healthcare services. The organisation believes that the absence of departmental guidance and lack of clarity and confusion around Northern Ireland's abortion law can result in unequal access to reproductive healthcare services.

In a landmark ruling made on 13 June 2001, fpaNI won the right to the first Judicial Review of medical practices relating to abortion and the provision of abortion services in Northern Ireland. On granting permission for leave Mr Justice Kerr commented, 'It is arguable that the Department has failed to satisfy its statutory obligation by not issuing guidelines with regard to termination of pregnancy services in Northern Ireland'. The hearing is set for March 21 and 22.

fpaNI believes that the absence of guidelines also creates myths around the issue of abortion in Northern Ireland. For example those who do not support a woman's right to choose often strongly declare that they are committed to ensuring that abortion remains illegal in Northern Ireland. This is a myth! The reality is that abortions are performed in Northern Ireland. Statistics from DHSSPS reveal that in 1999, 71 medical and eight unspecified abortions were performed in Northern Ireland. It is generally assumed that these were performed on the grounds of fetal abnormality. DHSSPS states that abortions performed in Northern Ireland comply with the law as set by the courts in three legal rulings. However, these rulings involved individuals of diminished mental competence or age, not fetal abnormality. Consequently, it can be argued that abortion is lawful in Northern Ireland where there is a probable risk of an adverse effect to the physical or mental health; physical or mental well being; or to the life of the pregnant woman. The definition of these circumstances is so nebulous that it leads to the medical profession having to take the ultimate decision about the lawfulness of abortion. This is unfair to both the medical profession and the woman.

For women the lack of clarity around the law means that every day many women cannot access an abortion in their own country and are forced to travel to England and pay for a private abortion. Despite being UK citizens they are not entitled to an NHS abortion. However the absence of official guidelines also has further potential negative consequences for women's health. For example frequently women with an unplanned pregnancy who come to fpaNI for counselling are unsure of the exact stage of pregnancy. This information is crucial because

  • it determines the medical procedure used and the cost of the operation;
  • it ensures that the woman is within the legal time limit and therefore is not refused a termination when she arrives at a clinic in England;
  • importantly, it is part of the decision-making process. At times, women who discover that they are further into the pregnancy than they believed decide not to proceed with the operation.

Some of these women choose not to involve their GP so fpaNI has to arrange a hospital scan but access to this healthcare service depends upon where the women live.

fpaNI recently contacted the eight major hospitals that provide this service. Four are committed to providing an excellent service and have written protocols in place to make this a reality. One will 'quietly' provide the service but does not want written protocols. One very reluctantly agreed and also refused to have written protocols. Two simply refused.

It is also significant to note that official statistics reveal that in 1999 42 per cent of women resident in England and Wales accessed abortion services in the first nine weeks of pregnancy compared to only 32 per cent of women from Northern Ireland. Medical professionals accept that early access to abortion reduces potential risks to the woman's physical health and personal well being.

The delay in accessing services is probably due to the fact that many women have difficulty in raising the money to cover the costs of travelling to England and for the operation. However lack of knowledge as to who can help them access abortion services can also be a contributory factor and this includes lack of knowledge amongst GPs.

There is also a myth that there is no political support for women to exercise their right to choose in Northern Ireland. In February 1984 the now defunct Assembly debated the issue. Only one member opposed the motion 'That this Assembly opposes the extension of the Abortion Act 1967 or any like legislation to Northern Ireland'. In June 2000 members of the new Northern Ireland Assembly debated a similar motion. In contrast to 1984 several representatives from major political parties voiced a much more understanding attitude towards the issue.

fpaNI hopes that the Courts will agree that by not issuing guidelines women in Northern Ireland are being denied equal access to reproductive health care services, services which by right should be theirs.

Abortion Law and Politics in Ireland
Julie F. Kay, legal consultant with the Irish Family Planning Association (IFPA) as part of a partnership project with Women's Link Worldwide.

Despite evidence of growing support for legalised abortion in Ireland, the Government is now proposing a referendum to add a constitutional amendment further restricting access to abortion. This proposal is almost identical to the one Irish voters rejected nearly a decade ago. The Government's willingness to re-run the same proposal, while trumpeting this as a novel approach, reminded one IFPA board member of the film Groundhog Day in which actor Bill Murray is doomed to wake up each morning only to re-live the previous day. This never-ending cycle of proposed restrictions on what is already one of the most forbidding abortion regimes has frustrated pro-choice activists and confused much of the general public. The history of the abortion debate in Ireland continues as one with constant tension between a rigidly anti-abortion Constitution and the vivid reality of women's experience of travelling abroad for abortion services.

Abortion is illegal in Ireland except where necessary because continuation of pregnancy poses a real and substantial risk to pregnant woman's life. This law is founded in a combination of constitutional and legislative provisions. Paramount to the ban on abortion is a constitutional amendment, Article 40 s.3, ss.3, enacted in 1983 that provides an equal right to life to the unborn and to the pregnant woman. In addition, a criminal provision, the Offences Against the Person Act of 1861 sections 58 and 59 criminalises 'procurement of miscarriage', and a woman may be punished by life imprisonment, while anyone who assists her risks being imprisoned for up to five years.

The abortion controversy exploded in Ireland in 1992 around the Irish Supreme Court decision Attorney General v. X, [1992] 1 I.R. 1. For almost a generation, neighboring England had acted as a safety valve to the Irish state of affairs by providing safe, legal abortion for thousands of Irish women each year. The extreme circumstances at issue in the landmark X case threw this 'Irish solution to an Irish problem' into turmoil.

X was the pseudonym the Court gave a 14-year-old girl, pregnant as a result of rape, allegedly by the father of her school friend. To obtain an abortion X travelled to England accompanied by her parents. Concerned about prosecuting the rapist, the girl's father had contacted the Irish police before leaving, to enquire whether a fetal tissue sample should be preserved as DNA evidence. The Attorney General in response sought to protect the fetus by promptly obtaining a High Court order prohibiting the girl from seeking an abortion or otherwise travelling outside the country for nine months. The family returned to Ireland with a suicidal and still-pregnant X.

Ultimately the Irish Supreme Court determined that the girl's risk of suicide was such that she should be permitted abortion in Ireland. In the Court's interpretation of the constitutional clause, that held the life of the fetus and that of the pregnant woman in 'due regard', abortion was to be allowed where continuation of pregnancy posed a 'real and substantial risk' to the pregnant woman's life. The risk to the woman's life could be from suicide or other physical health risks resulting from the pregnancy.

In practice abortion remains largely unavailable in all situations because the law defining the circumstances under which a doctor may perform a life-saving abortion is so ambiguous. (There has been some documented evidence of doctors performing abortions to save lives in individual cases). The availability of legal abortion in England has prevented widespread development of an illegal abortion industry. However the hardship experienced by at least 7000 women each year who travel to England for abortions cannot be dismissed. Furthermore, at a cost of approximately 1000 Euros, travelling abroad for an abortion is simply not an option for many women who instead may attempt to self-abort or be forced to continue an unwanted pregnancy.

In addition to banning the practice of abortion, Ireland has severe restrictions on the provision of abortion information. While a 1992 constitutional provision allowed restrictions on abortion information, the resulting Regulation of Information Act significantly limited public distribution of abortion information and advertising of abortion services. The law focuses so strongly on preventing the 'advocacy or promotion' of abortion that it fails to address the problem (quite prevalent in urban areas of Ireland) of anti-abortion groups establishing counselling services which provide inflammatory information designed to discourage or delay access to abortion. Under the law a woman may receive non-directive pregnancy counselling, may have her medical records forwarded, or receive other assistance short of an actual 'referral' for an abortion. The law's provisions regulating information, however, are so ambiguous that they have chilled the provision of abortion information and limited doctors' assistance to patients.

Large public demonstrations supporting abortion rights at the time of the X case and the growing visibility of the pro-choice movement have debunked the myth of a monolithic Irish anti-abortion opinion. Through a popular referendum in 1992, in reaction to the X case, voters chose to allow women the right to travel to obtain abortion services legally outside of Ireland. A constitutional amendment now limits the State's ability to interfere with a woman travelling for an abortion and prevents the type of court order issued in the X case. Voters also granted women a limited right to receive information on abortion - putting an end to years of censorship of any book or magazine that had mentioned abortion but allowing the type of restrictions discussed above. Significantly, voters rejected a proposal that would have excluded suicide risk as a ground for life-saving abortion.

The past two decades have inflamed the abortion debate in Ireland and radically liberalised individual opinions. In 2001, a nationwide poll conducted by Lansdowne Market Research for the pro-choice group Abortion Reform, showed that almost two-thirds of those surveyed believed that abortion should be permitted in some circumstances. Yet the political landscape remains fixed.

The Government recently proposed holding a referendum in early 2002 to amend the Constitution yet again. This proposed amendment, the Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill 2001, would incorporate legislation to criminalise abortion performed when the woman's life was at risk from suicide. In essence, this legislation would overturn the Supreme Court ruling in the X case, by eliminating suicide as a ground for legal abortion within Ireland. The proposal denigrates the value of women's lives and puts the most vulnerable women at a greater risk. The professional opinions of psychiatrists are disregarded, as legal abortion in Ireland is not an option even when a consultant psychiatrist finds this the best course for a patient. This regressive legislation contains numerous procedural and substantive flaws; nonetheless the Government has tried to streamline its passage and stifle debate (a detailed analysis and critique of the bill is provided in the appendix at the end of this document. Click here to move to the appendix).

The Government's proposal unrealistically assumes that travel to England for an abortion is easily available for all women, regardless of the woman's income or health. Thus, opponents of abortion continue to rely upon the hypocrisy of exporting thousands of Irish women in need of abortion services each year, forcing women to go abroad for treatment even if they are suicidal, pregnant as a result of rape or incest, have a severe illness that does not constitute a life-threatening condition, or a fetus with severe abnormalities.

Despite a decade of socio-cultural and economic advances that have brought Ireland in step with its more progressive European Union partners, Ireland's abortion laws remain the most uncompromising in the European Union. After extensive study and endless debate the Irish Government has chosen to ignore the increasing demands for a more humane, liberalised abortion law. Given this persistent reluctance by the government and the domestic courts to recognise women's reproductive rights, even in cases of extreme hardship, an international forum may provide the necessary avenue for gaining recognition of women's reproductive rights as human rights.

Abortion in a Bill of Rights for Northern Ireland
Dr Eileen Fegan and Rachel Rebouche, Law School, Queen's University Belfast

The comments so far have reflected upon the pursuit of reproductive rights in both Northern Ireland and the Republic of Ireland. In the Republic, the referendum threatens to make even more restrictive the law governing reproductive freedom by prohibiting abortion even upon the threat of suicide. In the North fpaNI's leave for judicial review is an attempt to clarify the practice governing abortion, since there is little consistency in the application of the 1861 Offences Against the Persons Act, and the exceptions to that Act, as determined by subsequent case law.

We would like to reflect upon certain recurrent themes in the discussion of reproductive rights and the topic of abortion. In particular we will consider how the tension between rights for women and, as defined by anti-choice/ pro-life groups, the right to life for the so-called 'unborn' present some interesting (and formidable) dilemmas in securing more liberal laws governing abortion. We will reflect upon the ability of pro-life groups to dominate the public discussion of abortion in the campaign for 'rights of the unborn' and what this means for a pro-choice community looking to secure better rights for women in making decisions about reproduction. Is there a 'vast majority', as politicians and pro-life activists claim, that would support the rights of the unborn, and who would advocate a fetal right to life at the expense of women's agency? Much time, as seen in discussion of a Bill of Rights for Northern Ireland, has been devoted to asserting and reacting to the claim that a right to reproductive health is a 'back door' to abortion, whereas minimal time has been spent discussing what 'rights of the unborn' is a back door for, namely 'back street abortion', costly (financial, but also mentally and physically) travel to England, and poor reproductive health care. And how has this (implicitly and explicitly) shaped the discourse of those who would advocate for more legal freedom in making reproductive choices? Has the pro-choice voice been neutralised as a reaction to the moral and (certainly coercive) tactics of its opposition?

Our aim is to explore the language that mediates law and experience in the context of Northern Ireland. We will not suggest practical solutions but pose questions in the hope of teasing out a more cohesive pro-choice strategy. We will focus first on the implications of the current fpaNI challenge and then consider the issues and dialogue regarding reproductive health care in the current process of writing a Bill of Rights for Northern Ireland.

Context Is Everything

There is a context within which the discussion and events about abortion in Ireland should be situated and understood. The decision to challenge Northern Ireland abortion law through the courts, beginning earlier this year, mirrors the successful use of legal strategies (litigation) in other jurisdictions. In USA and Canada prohibitive abortion laws were struck down through contesting their application in specific cases.

Roe v Wade in the USA and the Morgentaler decision in Canada took place, however, within contexts framed by constitutional guarantees of privacy (the US Constitution) and liberty and security of the person (the S7 Canadian Charter), neither of which is familiar (yet) in Northern Irish legal or social culture. (The impact of the Human Rights Act 1998, and specifically section 8 - the right to private and family life - is yet to be felt since it has been in force for only one year). Whereas the North American courts' liberalisation of abortion laws was facilitated by the widespread social acceptance of entrenched rights of citizens, for example to freedom of expression and association, these concepts are contested in Northern Ireland on a daily basis - as any news reel shows!

Yet fpaNI's challenge is important in raising social awareness of the anomaly and lack of clarity of our abortion law, and exposes what MLA David Ervine calls the 'a la carte' approach of many declared unionists to the law of the Union itself. Our interest in it is to expose a lot more - the mismatch between law, legal discourse and judicial practice in Northern Ireland.

The legal basis for fpaNI's case

The judicial review application is legally and morally neutral in appearance. It challenges the law at the level of procedure and practice. Clarity and certainty are images which every legal system depends upon for respect and obedience. These ideas, though often intangible, are central to legal discourse, supporting the legal system through the appearance of coherence. The fpaNI case is not an attack upon the content of the common law regulation of abortion in Northern Ireland. Rather it asserts the legal administrative obligation on the Minister for Health for Northern Ireland to ensure adequate guidance on the availability of a legal medical service. It is also important to recognise that the fpaNI challenge implicitly forces the courts to clarify when terminations actually are legal in Northern Ireland - and where might they look for guidance but to the 1967 Act? It therefore has the potential to usher in or further the case for extension of Act to Northern Ireland, although this is not its specific aim.

A Question Of Strategy

fpaNI (and the rest of those working in the area in Northern Ireland) have long been aware of the strategic necessity of constructing abortion as only a matter of women's health. Those who are pro-choice have learnt to work with the situation as it is - if our Assembly debate on abortion in 2000 reflects anything it is that the very word 'abortion' can create more problems than pro-choice campaigners are currently in a position to address. So out of strategic necessity we have a developed an avoidance of the 'A word' and a preference for the term 'reproductive decisions', as well as the usage of 'health' over the language of 'rights'.

While this strategy has much to recommend it at this current juncture, before rights consciousness has pervaded Northern Irish society, it is our concern here to unravel from a theoretical perspective, the meaning and possible consequences of this strategy for future debates, and for regulation, provision and support for abortion services.

Implications of our Discourse - how we choose to speak about abortion
Feminist socio-legal academics have analysed the wider and long-term implications of legal strategies aimed at improving the position of women and have found that substantive gains made through reform are often negated by legal discourse itself.

This has brought feminist attention to the issue of discourse - of both legal discourse and challenges to it. A focus on discourse, the language (and other ways) in which law defines itself, brings attention to the normative bases of law and also to the language needed to reshape legal norms. While fpaNI's challenge may indeed succeed in getting the law (and a very conservative judiciary) to face facts about the legal indefensibility, on a procedural level at least, of a separate and uncertain form of abortion regulation for Northern Ireland the pro-choice community must prepare itself for challenges beyond that.

The anti-choice lobby has already gained access to the judicial review hearing despite the moral neutrality of the legal argument. Four anti-abortion groups, SPUC, LIFE, CARE and Precious Life, have been given permission to join in the legal action as interested parties. On what grounds? Abortion is already legal in Northern Ireland and fpaNI only wants the court to order the Department of Health to publish guidelines on when that is. Lord Brennan QC, applying for SPUC to be allowed into the case, said the effect of new guidelines would be to widen the scope of abortion services in Northern Ireland. He said he was particularly concerned about the right to life aspect of the Human Rights Act (although the ECHR on which it is based never included a fetal right to life) and added: 'This issue is of such wide importance it should not just be left to the department of health and the bishops'. Lord Brennan said abortion was a matter of the greatest importance within Northern Ireland and it was appropriate that the court should hear from all the main interested parties. It was accepted without question that anti-abortion groups were legitimate such 'interested parties'. That these groups are involved in this unquestioning manner is really significant in terms of pro-choice discourse.

While we avoid constructing abortion as anything other than a health care matter, the anti-choice lobby have already succeeded in the legal forum, without a basis in law, in defining the issue as a moral one, to which the judiciary will most likely respond in similar terms. This leaves pro-choice advocates, who have yet to argue a normative position in this hearing, excluded despite the fact that fpaNI initiated the challenge and are supported by existing legal rules on both abortion and government's administrative obligation.

In Northern Ireland emotion and moralism appear stronger than law when it comes to abortion. Our argument is that while of course pro-choice groups need to work with what we have, we would argue that what we have is the default moralistic 'pro-life' position, which always seems to have the upper hand regardless of other factors including law and statistics. (When anti-choice campaigners protested at the publication of the recent study The Other Irish Journey at Stormont, what exactly were they protesting at? The statistics? Their publication? The fact that women's experiences were finally being acknowledged within the hallowed halls of government?)

Without a clear and strong pro-choice moral position which puts women needing to terminate pregnancies centre stage, anti-choice opinion can frame the terms of the social debate and the judicial decision, despite the inconsistencies and gaps in their arguments left by the questions they refuse to answer, for example should the state with force of law force a woman to continue a pregnancy against her will or when her health is in danger? We need to engage in this debate morally because a fundamental issue of morality is at stake - the denial of women's agency as equal human beings.

Silence and Censure
Where is the moral argument for women's agency in the abortion debate in Northern Ireland? It seems almost entirely absent. Is this because of fear? If so, fear of what? It is sometimes argued that there is a fear of political and legal backlash, of losing what we already have, that being the 1939 common law exception to the illegality of abortion. Alternatively, the idea is put forward that there is fear of falling through referendum into the same unenviable position as the Republic of Ireland. However, it is arguable that pro-choice advocates' worst fears are in fact realised already. We are in a position where we in cannot speak positively about abortion availability or even argue openly or honestly about our views.

We know feminists, political representatives, or pro-choice advocates cannot speak for all women. There are many women in the anti-choice movement. But that not all women want or acknowledge their or others' agency does not make silence on this question the best default position from a human rights point of view. That the majority do not support a woman's right to choose is equally irrelevant (and we are not sure that this is the case since open disclosure of pro-choice views is, as we ourselves have demonstrated by our strategic choices, so extremely problematic in Northern Ireland - especially in rural and those communities dominated by the political conflict). Human rights evolved to defend vulnerable minorities from the tyranny of the majority - women needing to terminate pregnancies arguably deserve even greater protection from human rights bodies and legislation in such a society. We must defend a bottom-line position of respect for women's agency from a human rights perspective.

This is a theme we will now address through discussing the drafting of a Bill of Rights relevant to the particular circumstances of Northern Ireland, most pertinent being the longstanding tendency to obscure and minimise human rights concerns which do not fall neatly within the labels Catholic, Protestant, Unionist or Nationalist.

Abortion and a Bill of Rights

We need to discover (or rediscover as the case may be) the moral imperative of agency in reproductive decisions, and the human rights of women, which are at stake when debating reproductive policies. The Northern Ireland Human Rights Commission has as part of its remit to draft rights supplementary to the ECHR. Reproductive freedom and abortion is very relevant to that remit, not only in the abstract but also in practice in Northern Ireland.

Northern Ireland finds itself in a precarious position in considering the legal status of abortion, governed by the 1861 Offences Against the Persons Act and the subsequent case law developed in Bourne and Stungo, which allows termination in instances where a woman is a 'mental or physical wreck'. As the fpaNI challenge asserts the law, however, is not consistently interpreted liberally nor is it easily comprehensible to those who would employ it. When interpreted liberally, the law meets the bare requirements to be acceptable under the European Convention on Human Rights, and thus under the counterpart in UK domestic law, the 1998 Human Rights Act. The predecessor of the Northern Ireland Human Rights Commission (NIHRC), the Standing Advisory Committee on Human Rights (SACHR), reported in 1994 that abortion law in Northern Ireland may violate Article 8 (Right to Family and Private Life) within the European Convention because the law was applied variably and inconsistently (see 'Abortion Law in Northern Ireland: The Twilight Zone' 18th Annual Report to SACHR (1993);'Abortion Law on Remand' 19th Annual Report of SACHR, 1994). The problems of the particular laws governing reproductive rights in Northern Ireland have not gone unnoticed internationally. In their response to the UK's 1999 report to the Committee on the Elimination of Discrimination Against Women (CEDAW), CEDAW expressed concern over the restrictiveness of Northern Ireland law, urging 'the Government to initiate a process of public consultation in Northern Ireland on reform of the abortion law'. The process of dealing with the deficiencies in law can also be looked at in terms of the current drafting of a Bill of Rights for Northern Ireland.

Reproductive freedom and the Bill of Rights
The issue is best looked at in the context of a Bill of Rights for Northern Ireland. Unlike Canada or the US, the idea of entrenched rights is somewhat unfamiliar to Northern Ireland. Indeed, in the UK it was only in 1998 that the ECHR was passed. The process of writing a Bill of Rights is fascinating. Launched in March 2000, the Commission undertook the duty to write rights additional to the ECHR. It consulted very broadly, receiving submissions from many organisations and individuals, held numerous events to tease out what the gaps in the European Convention were. This culminated in the launch of a consultation document in September 2000, with 19 different chapters, detailing rights which could be supplementary to the ECHR. One such right is Women's rights, which includes equality between men and women, reproductive healthcare, freedom from violence, and participation in public life. Discussion of these issues is spread through the document, and the language used is drawn from existing international documents.

The reproductive health clause reads:

Everyone has the right to have equal and free access to sexual and reproductive health care and to information and education relating to sexual and reproductive matters at all levels, free of coercion, discrimination and violence.

This has attracted a firestorm of controversy, but interestingly, the debate has not focused simply on what is in the clause. The reproductive health clause has caused opposition on two fronts; first the claim by anti-choice groups that it is a loophole to introduce the 1967 Act, which the Commission has spent much time protesting, and second that the clause precludes the right to life for the unborn, supported by 'a vast majority' and particular to the 'ethos' of Northern Ireland.

What is interesting about these claims is that if we are moving in discussion of abortion, from the terrain of morality to that of health, one has to ask how these claims fit into the discussion. The Commission has been very forthright in stating that abortion is not going to be dealt with as a matter for the Constitution or for a Bill of Rights, but will be dealt with by elected officials legislating on the matter. Despite this reality, there is a continual reassertion that the reproductive health clause is a 'back door' for abortion (of course, there is very little discussion of what a fetal 'right to life' may be a back door for!)

As a consequence, we need to consider what is being left out of the discussion. There is a whole raft of issues that are not being addressed, because of a preoccupation with 'back doors'. Issues such as access to contraception, including emergency pill, sex education, treatment for sexually transmitted diseases and ante-natal care, as well as problems with forced caesareans, inadequate resources for maternity wards and poor access to IVF treatment, are those which rightly fall under the rubric of reproductive health rights. But the abortion issue has been of such force and controversy that many of these issues have been left unaddressed. By focusing on what the health clause does not mean, in terms of legalising abortion, there has been a failure to elucidate the scope or meaning of 'reproductive health'.

Part of the problem may be that women's rights are rarely addressed in a substantive fashion.
It is troubling that the same standards for substantive equality, as seen in the Bill of Rights chapter on equality rights and as asserted as a premise of women's rights, is not argued in the same substantive fashion in regard to reproductive health. Arguably, the Bill of Rights is an appropriate medium to address the reproductive choices of Northern Irish women, but this issue is simply not being taken seriously at present.

The current system deprives women of their ability to make decisions most appropriate to their experiences or within the context of their lives, impairing their equality before and under the law. Reproductive rights entail a programmatic response, such as creating and funding clinics, training doctors, preparing sex education curriculum, and providing state assistance for reproductive services. The issue teases out the strength of substantive equality, as reproductive issues must be considered in not only an individual standard of choice wherein there exists no ready comparator, but also in the larger social meaning and impact of forced pregnancy and poor reproductive health care, services and information on women as a group.

As fpaNI's challenge asserts, the provision of reproductive rights is extremely tenuous, most likely making consideration of reproductive health in the larger health agenda invisible. The efforts of those promoting 'rights of the unborn' ignore the centrality of women's experience in the issue and seek to make the provision of reproductive health genderless. Instead the question of the 'rights of the unborn' has dominated the debate. There is a feeling that any discussion about reproductive rights is about denying rights to the 'unborn'. But at the same time, there is no real interrogation of what would be the precedent for such rights

In fact there is a clear international precedent against the 'right to life' for a fetus. An entrenched right to life for a fetus, as seen in the legal dilemmas of the Republic, is on shaky ground with no clear international precedent to support it. If included, legal personhood and a 'right to life' as protected under Article 2 of the European Convention could be theoretically conferred upon a fetus at the moment of conception. A brief review of European case law reveals, however, that courts are unwilling to confer the non-derogable right to life on a fetus would inevitably impact the well being of the mother. In Paton v UK (1980) 19 D. & R. 244, for example, the Court held that an absolute right to life could not feasibly be established because it would prohibit any legal abortion. Such a restriction would ultimately clash with the rights of women seeking terminations. The court expanded upon this reasoning in H v Norway (1992) 73 D. & R. 155, upholding a law that allowed women to access abortion for social, as well as health reasons.

Nonetheless, discussion of the 'rights' of the unborn have taken centre stage in the Bill of Rights process, as a right particular to the ethos and circumstances of Northern Ireland. The tactics of anti-abortion supporters and activists, and a loss of public support are real, and certainly threatening. Indeed the response from the Northern Ireland Assembly, over a June 2000 debate to prohibit future motions to extend the 1967 Act to Northern Ireland, reveal that this is one of the few issues that reflects intense cross-party opposition.

What is even stranger is that the same groups and individuals who would dismiss human rights and the Bill of Rights as an attempt to create and enforce a new 'secular religion' are more than ready to argue in the language of 'rights'. It seems odd that 'pro-lifers' could so effectively employ a rights scheme (in this instance for fetuses) in a jurisdiction that operates without a constitutional framework and has only employed a language of 'rights' in talking about legal freedoms since 1998. In public training events and consultations, the strange separation of the phrase 'rights of the unborn' and the term 'abortion' is noticeable. Certainly talking about rights means talking about limitations and balancing rights, a task those advocating a 'right to life' for the unborn are unwilling to do. There seems to be no reflection of the other implications of conferring personhood on a fetus (for example, criminalizing certain forms of pre-natal behaviour) and no need to even mention the would-be mother in the debate. Perhaps part of the problem is the absence of a similarly organised and funded pro-choice lobby, equipped to raise these issues, and advocate on behalf of women's human rights.

There are a number of implications for the larger pursuit of women's rights raised by the issue of reproductive health. The reaction to the issue of reproductive health not only reflects the moral difficulties many have with abortion, but some of the assumptions about women, that are the very source of their continuing disempowerment. The Bill of Rights, especially in its equality and anti-discrimination aspirations, aims to protect individuals from the uneven application of all laws and from the existence of specific laws, that are uneven in their effects upon differently situated individuals. Rights, which impact upon reproduction, must recognise this disparity.

Conclusion

Uncomfortable as it may be we need to acknowledge that a neutral strategy emphasising health, as exemplified by fpaNI's challenge, has already in some ways been 'trumped' by anti-choice groups. At present there is no positive right to reproductive control in Bill of Rights. There is a clear avoidance of idea that women should have rights over their bodies which suggests an avoidance of the broader idea that women are independent and responsible moral agents equally deserving of protection of their dignity by law. While this idea is not a familiar idea one in British society, as seen in its long absence from human rights and legal discourse, it may be that we should consider it the obligation of feminist and pro-choice activists to promote this idea, and therefore to not only or always pose the issue as one of health.

Appendix

ALLIANCE FOR A NO VOTE

ANALYSIS OF THE TWENTY-FIFTH
AMENDMENT OF THE CONSTITUTION BILL (as amended)

by Ivana Bacik, Abortion Reform
20th December 2001

The Twenty-Fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001, as passed through both Houses of the Oireachtas, is legally flawed for a number of reasons, both procedural and substantive, in Irish law and under European and international provisions. This paper analyses the Bill and summarises its flaws, as follows.

I THE MECHANISM OF THE AMENDMENT

I.I The Amendment
The Bill (the Twenty-Fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001) has two sections and two Schedules. Sections 1 and 2 amend Article 46 of the Constitution by inserting the text set out in the First Schedule into a new subsection, Article 46.6.

The proposed Article 46.6 contained in the First Schedule to the Act itself consists of four subsections (46.6.1 - 46.6.4):

(a) Article 46.6.1 is a further constitutional amendment, providing that Article 40.3 shall be amended to include a new Article 40.3.4 and 40.3.5. The effect of these two subsections on the existing Article 40.3.3 will be examined below. Within the text of both 40.3.4 and 40.3.5 is a reference to the Protection of Human Life in Pregnancy Act, 2002. The text of this Act is set out in the Second Schedule to the Twenty-Fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001.

(b) Article 46.6.2 is a self-eliminating clause, providing that if the legislation set out in the Second Schedule is enacted by the Oireachtas, 'this section' (i.e. the whole of the proposed new Article 46.6) will be omitted from every official text of the Constitution, but will continue to have the force of law nonetheless.

(c) Article 46.6.3 provides that if the legislation in the Second Schedule is not enacted within 180 days of the insertion of Article 46.6 into the Constitution, Article 46.6 will cease to have effect.

(d) Finally, Article 46.6.4 provides that the provisions of Article 26 and 27 of the Constitution (relating to reference of Bills to the Supreme Court and to the People) shall not apply to the Second Schedule legislation.

I.2 Why the Government's Proposed Mechanism to Change the Law is Unconstitutional
The Twenty-Fifth Amendment Bill therefore consists of a constitutional amendment within a constitutional amendment, containing a piece of legislation which itself is to be enshrined within the Constitution. This is an unprecedented format for amending the Constitution. It breaches Article 46.4 of the Constitution. Article 46.4 provides that: 'A Bill containing a proposal or proposals for the amendment of this Constitution shall not contain any other proposal.' Yet the Government's proposal contains two separate and distinct amendments to the Constitution, together with a new type of 'constitutionally-enshrined legislation'. In order to carry out this procedure in a manner compatible with the Constitution, Article 46.4 should have been amended first in a separate referendum. Since it has not been, the manner of introduction of the proposal itself amounts to an unconstitutional process.

I.3 Nature of the Second Schedule
This matter was raised by the Labour Party in a question to the Taoiseach, and in the Taoiseach's reply in the Dáil he conceded that the Second Schedule is not a constitutional amendment and does have legal effect. Since it is a 'proposal', but not a 'proposal for the amendment of this Constitution', its inclusion in the proposal to amend the Constitution is clearly contrary to Article 46.4. The Taoiseach also conceded that the 'Good Friday' Agreement is not a precedent for this process. This is an unprecedented and unconstitutional procedure for amending the Constitution and for introducing legislation.


I.4 Breach of Separation of Powers
The proposal contained in the Twenty-Fifth Amendment Bill may also be unconstitutional because it offends the principle of separation of powers, by usurping the legislative function of the Oireachtas. The provisions set out in the Second Schedule under the heading 'An Act to Protect Human Life in Pregnancy, to repeal sections 58 and 59 of the Offences Against the Person Act, 1861, and to provide for related matters', apparently are to be known as the Protection of Human Life in Pregnancy Act, 2002. Yet this Act itself will not go through the legislative process as a stand-alone piece of legislation. It can only be considered by the Oireachtas in its present form as the 'provisions set out in the Second Schedule' to another piece of legislation, the Twenty-Fifth Amendment Bill. Once that Bill has been passed by the Oireachtas, the twenty-fifth amendment is to be put to the people. If it is passed, the contents of the Second Schedule will become a binding template for the Oireachtas. They can either enact the Second Schedule as the Protection of Human Life in Pregnancy Act, 2002, or not enact it, but they cannot amend or alter it in any way. If after 180 days they have not enacted the provisions of the Second Schedule, the twenty-fifth amendment itself ceases to have effect. Thus, the proposal ties the hands of the Oireachtas. It may breach the provisions of Article 15.2.1 of the Constitution: 'The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas,' by usurping the exclusive function of the Oireachtas.

I.5 Delay in Enactment of Legislation
The provisions of the proposed Article 46.6.3, that if the Second Schedule legislation is not enacted within 180 days of the insertion of Article 46.6 into the Constitution, Article 46.6 will cease to have effect, itself offend the principles enshrined in Articles 46 and 47 of the Constitution (relating to the Referendum process). It is not envisaged in either Article, or anywhere else in the Constitution, that a proposal to amend the Constitution, once duly passed by the people in a Referendum, should thereafter be capable of effective veto by the legislature. Again this
amounts to the provision of an unconstitutional function for the Oireachtas, since it gives the legislature a previously unknown power of veto over the Referendum process.

I.6 Legislation with 'Super-Constitutional' Status
Further, Article 46.6.4 rules out the possibility of any reference of the Second Schedule legislation to the Supreme Court by the President under Article 26, or any reference of the legislation to the people under Article 27. Again, this is contrary to the established constitutional legislative process, whereby all legislation (with three exceptions) is subject to this Presidential power. The exclusion of the Article 26 and 27 powers of reference from the legislative process in the case of the Protection of Human Life in Pregnancy Act, 2002 amounts to giving this legislation an unprecedented super-constitutional status.

II THE GOVERNMENT'S PROPOSALS TO CHANGE THE CONSTITUTION

II.1 The Proposal
The proposed new Article 46.6.1, contained in the First Schedule to the Bill, provides that Article 40.3 shall be amended to include a new Article 40.3.4 and 40.3.5. Each of these new provisions is considered in turn below.

II.2 Article 40.3.4 provides that 'In particular, the life of the unborn in the womb shall be protected in accordance with the provisions of the Protection of Human Life in Pregnancy Act, 2002.' It is difficult to assess the compatibility of this provision with the existing Article 40.3.3. Article 40.3.3 provides that 'The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.' The Article proceeds to make certain guarantees relating to travel and information, inserted in November 1992.

II.3 Why the Proposal is Flawed
The first difficulty relates to how far the new subsections actually overrule the X case (AG v. X [1992] 1 IR 1; the authoritative ruling giving priority to the mother's right to life where that is in conflict with the right to life of the unborn). Clearly, where the Protection of Human Life in Pregnancy Act, 2002, does not apply, then the X case remains the law. Thus, since section 1(1) of the Act provides that 'abortion' means the 'intentional destruction by any means of unborn human life after implantation in the womb of a woman', the X case remains the law in relation to unborn life prior to implantation (presumably, after conception). Article 40.3.4 offers no protection to the life of the unborn prior to implantation, or indeed outside the womb of a woman (for example, in the case of an ectopic pregnancy, where the foetus develops in the fallopian tubes, or very rarely, in the abdomen or cervix).

II.4 The Words 'In Particular' - Ambiguous Meaning
The words 'In particular' at the start of Article 40.3.4 are particularly difficult to interpret. Do they mean that the unborn can continue to have protection beyond that offered in the Act, or do they limit the protection of the unborn to that offered in the Act? These words imply that 40.3.4 may be incompatible with the existing 40.3.3.

II.5 Incompatibility with Article 40.3.3 as No Consideration of 'Equal Right to Life of Mother'
Finally, in relation to Article 40.3.4, it may also be incompatible with Article 40.3.3, for the reason that it makes no reference to the 'equal right to life of the mother'. Nor is any reference made in the Protection of Human Life in Pregnancy Act, 2002 to the right to life of the mother. Yet Article 40.3.3 clearly provides that the State must have due regard to the mother's life. Limiting the right to life of the mother, by ruling out suicide as a ground on which her right to life may take priority over that of the unborn, appears fundamentally incompatible with the protection for her right to life under Article 40.3.3. It is thus very likely that, even if passed, Article 40.3.4 will give rise to significant litigation issues, as it is difficult to see how this inconsistency between 40.3.3 and 40.3.4 can be overcome, given the wording of the Protection of Human Life in Pregnancy Act, 2002.

II.6 The Act would only be Capable of Amendment by means of Referendum
Article 40.3.5 provides that Article 46.2 and Article 47.1, 47.3 and 47.4 shall apply to any Bill purporting to amend the Protection of Human Life in Pregnancy Act, 2002. This means that the new Act will not be capable of amendment except by way of legislation that must be put to the people in a Referendum. Again, this amounts to the creation of super-constitutional legislation. It ties the hands of the Oireachtas in a hitherto unprecedented manner, usurps the legislative function of the Oireachtas. It means that if the Protection of Human Life in Pregnancy Act, 2002 becomes law, then even the most minor amendment (for example, to alter the criminal penalty provided for in the Act) must be put to the people by way of Referendum.

III THE GOVERNMENT'S PROPOSED LEGISLATION: Protection of Human Life in Pregnancy Act, 2002

III.1 Introduction
The process whereby the Government intends to introduce the Second Schedule legislation, the proposed Protection of Human Life in Pregnancy Act, 2002, appears deeply flawed procedurally, as outlined above. But other difficulties with the substance of the Act as contained in the Second Schedule also arise and are considered below.

III.2 Definitions in Section 1
The proposed Act consists of seven sections. Section 1(1) defines 'abortion' (as above) and section 1(2) provides for the exception to that definition; that abortion 'does not include the carrying out of a medical procedure by a medical practitioner at an approved place in the course of which or as a result of which unborn human life is ended where that procedure is, in the reasonable opinion of the practitioner, necessary to prevent a real and substantial risk of loss of the woman's life other than by self-destruction.' Section 1(3) offers definitions of 'approved place' ('a place in the State approved for the time being by order as being suitable for the purposes of this section'), 'medical practitioner' (a person 'permitted for the time being by law to practise as a registered medical practitioner in the State'), 'woman' and 'reasonable opinion' ('a reasonable opinion formed in good faith which has regard to the need to preserve unborn human life where practicable').

III.3 Sections 2 - 7 of the Proposed Act
Section 2 creates a new criminal offence of the carrying out or effecting of an abortion, with a maximum penalty of twelve years. Section 3 allows for conscientious objection to the carrying out of a medical procedure under section 1 of the Act; section 4 preserves freedoms to obtain and provide information, and to travel to another state for the purpose of an abortion. Section 5 provides for Ministerial powers to make orders relating to the provisions of the Act. Section 6 repeals the existing criminal offence of abortion under sections 58 and 59 of the Offences Against the Person Act, 1861. Section 7 provides for the title of the Act, and states that it shall not come into operation until at least two months after its passing.

IV SECTION 1: DEFINITION OF 'ABORTION'

IV.1 Problems with the Definition
As already noted, there are problems with interpreting this definition in the light of the existing Article 40.3.3, and the obligation it imposes upon the State to protect the equal right to life of the mother. The words 'In particular' used at the start of the proposed Article 40.3.4 may operate as a 'saving clause', to preserve other, pre-existing, protections for the unborn right to life. But if so, then they must also operate as a 'saving clause' to preserve other protections for the right to life of the mother. This is because the definition of a legal abortion in section 1(2) of the proposed Act operates as a restriction on the right to life of the mother. There is no reference to her right to life in Articles 40.3.4 or 40.3.5, or in the legislation. But if the words 'In particular' have the effect of preserving certain pre-existing elements of the right to life of the unborn, then they must equally operate to preserve pre-existing protections for the right to life of the mother - otherwise they would be incompatible with Article 40.3.3. Indeed, it may be argued that Articles 40.3.4 and 40.3.5 are in themselves incompatible with Article 40.3.3, since they give no recognition to the right to life of the mother expressly declared to be equal to that of the unborn in the existing Article.

IV.2 Problems with 'After Implantation' Definition
The provisions of the proposed Act apply only to unborn human life 'after implantation in the womb of a woman'. As noted earlier, this excludes application to unborn life post-conception but pre-implantation, and also excludes application to unborn life that has developed outside the uterus, for example in the fallopian tubes of the woman. The reason given for this exclusion was to protect the legality of the morning-after-pill and the IUD contraceptive method, both of which may operate after conception. However, it would be dangerous to rely on the assurance that the legality of these contraceptive methods is thereby protected, since there is nothing in the proposal that offers any protection to either method of contraception. They are excluded from the ambit of the legislation but may not be protected by it. The words 'In particular' in Article 40.3.4 may be used in future to allow a legal challenge by an anti-contraceptive group on the basis that other pre-existing elements of the right to life of the unborn have been preserved. Thus, unborn right to life post-conception might arguably be protected under Article 40.3.3, notwithstanding the limited application of Article 40.3.4 to unborn life post-implantation. This argument would of course again have the effect of raising the issue of the compatibility of the new provisions with the existing Article 40.3.3.

IV.3 Problems With Test for Lawful Termination
The test set out in section 1(2) as to when a termination of pregnancy may legally be carried out may also be incompatible with Article 40.3.3 and the test established in the X case. In Finlay CJ's judgment in that case, setting out the accepted test whereby the rights to life of mother and unborn might be interpreted, he said that 'if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible, having regard to the true interpretation of Article 40.3.3 of the Constitution' (at p. 60 of the judgment). Yet, the test provided in section 1(2) provides that a lawful abortion may only be carried out where 'necessary to prevent a real and substantial risk of loss of the woman's life other than by self-destruction.' The test specifies that the risk must be 'loss of the woman's life' as opposed to 'risk to the life'; this appears to restrict further the already restrictive test in the X case. The test set out in section 1(2) also assumes a certain clarity in the calculation of physical risk of loss of a woman's life, which may not always be present in the reality of medical practice. Such a restrictive test may not be suitable in practice for doctors who will face potentially serious criminal action if they miscalculate. The legislation leaves little room for discretion in this regard.

IV.4 Problems with Defining 'Approved Place'
Under section 1(2), an abortion may only be carried out at an 'approved place'. Section 1(3), when read in conjunction with section 5, gives a designated Minister the power to authorise 'approved places'. Clearly, if the Minister (whichever one it may be) does not designate any approved place, or only designates a limited number of places, the constitutional right to life of the pregnant woman in any given life-threatening situation is at risk. This would amount to an unconstitutional limitation on the right to life of the woman.

In response to concerns raised regarding section 5 as originally drafted, a new sub-section 3 was inserted providing that the 'Government shall ensure that such orders are made from time to time as are necessary to enable this Act to have full force and effect.' The Government thus recognised that a future Government, unconcerned with the protection of women's lives, could restrict the number of approved places so as to render it impossible in practice for a woman to avail of a procedure 'necessary to prevent a real and substantial risk of loss of the woman's life other than by self-destruction', in the words of section 1(2).

The net effect of the new sub-section would appear to be to give the courts powers to issue orders of mandamus directing a recalcitrant Government to make orders approving sufficient places to protect women's lives - a novel proposition, giving the judiciary new powers of control over the executive. Section 5(3) would thus appear to constitute yet another example of the tendency of elected politicians to refuse to take responsibility for the protection of women's lives, thus rendering it necessary for the courts to fulfil this function yet again. It is unclear how, in practice, such a complex procedure would operate in a situation where a woman urgently needed a termination in order to save her life while a recalcitrant Government was in power.

This problem is further exacerbated by the provisions of section 5(5), on the procedure for making orders under the Act. Section 5, as originally drafted, provided that orders made under its provisions were to be laid before the Houses of the Oireachtas who could annul them 'without prejudice to the validity of anything previously done thereunder.' Section 5(5) as contained in the Bill passed by both Houses of the Oireachtas provides that an order proposed to be made under section 5 shall be laid in draft before each House and shall not be made unless and until both Houses pass resolutions approving the terms of the draft order. This procedure, while desirable in terms of democratic control of the executive by the legislature, could cause real problems where, for example, unforeseen circumstances necessitated the urgent making of an order approving a place for the purposes of the Act, particularly if the Oireachtas was on vacation.

IV.5 'Reasonable Opinion' - Problems
Under section 1(3), the definition of 'reasonable opinion' provides expressly for the medical practitioner to have regard to the need to preserve unborn human life, but there is no provision for the necessary regard to be had to the need to preserve the right to life of the mother. Again, this is incompatible with the duty imposed upon the State under Article 40.3.3 to have due regard to the equal right to life of the mother.

V SECTIONS 2 & 6: CRIMINAL LAW ASPECTS

V.1 New Criminal Offence of Abortion
Section 6 of the proposed legislation repeals the old criminal offence of abortion (intentional and unlawful procurement of a miscarriage) provided under sections 58 and 59 of the Offences Against the Person Act 1861. A new criminal offence of abortion is created under section 2. This proposed new offence will eliminate the defence presently available to a woman who aborts herself or anyone else who helps her under section 58 and 59 of the OAPA 1861. That defence, established in the decision in R v. Bourne [1939] 1 KB 687, was that an abortion was not to be considered unlawful if the continuation of the pregnancy would have rendered the woman a 'mental and physical wreck'. It will no longer be available under the new criminal provision, since the word 'unlawful' currently used to qualify the type of abortion that is criminal will be removed. Indeed, the offence is drafted far more restrictively than the offences in sections 58 and 59.

The new offence is indictable only, that is, it can only be tried before a judge and jury. The penalty provided for is less than the present maximum of life imprisonment (twelve years will be the maximum under this proposal) but it will be far easier under section 2 to convict the woman herself or anyone who helps her in seeking an abortion here. Further, since it is contained in this 'super-constitutional' legislation, the offence of abortion will now be given constitutional status (alongside the offence of treason for example), and it will not be capable of amendment by the legislature.

V.2 Omissions from New Criminal Provisions
Despite the creation of this restrictive new criminal offence to cover any doctor who performs an abortion that falls outside the definition in section 1(2), no offence is provided for if a doctor refuses to carry out procedures necessary to save a woman's life, and the woman dies. Indeed, such a doctor is expressly protected by section 3 of the Act, which makes no provision for emergency procedures necessary to save a woman's life. The omission of an emergency clause, and the failure to create any criminal offence where the woman's right to life is not vindicated, amounts to a breach of the woman's right to life and again may not be compatible with the equal right to life of the mother guaranteed in Article 40.3.3.

VI SECTION 3: CONSCIENTIOUS OBJECTION

VI.1 No Provision for Emergencies
There is no provision for emergency procedures to be carried out where necessary to save a woman's life, where the woman cannot be brought to an 'approved place'. Nor is there any obligation on any doctor to carry out life-saving procedures under section 3 (the 'conscience clause'). This is clearly in breach of international medical guidelines which always insist that provision for emergency situations must accompany any 'conscience clause' of the type provided in section 3 of the proposed legislation. For example, the Guiding Principles of the Commonwealth Medical Association provide a model 'emergency clause'. Yet no such clause is provided here, and this again may amount to a breach of the woman's right to life.

VII SECTION 4: FREEDOM TO TRAVEL

VII.1 No Right to Travel Provided
Although section 4 confirms the freedoms to travel and to information already inserted into Article 40.3.3 in the November 1992 Referendums, it does not provide any right to travel, nor give any state agency or body any enabling power to assist a woman in travelling abroad. The absence of any such enabling power means that where a pregnant woman or girl is unable to travel abroad unassisted, she has no right to assistance and so cannot exercise her freedom to travel. That means that even if she is suicidal, she will not be able to travel abroad.

In the 'C' case, a Health Board was given permission by the Court to take a young pregnant girl in their care out of the jurisdiction for an abortion, only because she was suicidal and the continuation of the pregnancy was deemed to constitute a threat to her life. If the threat of suicide is ruled out as a ground on which abortion may lawfully be performed, then such a decision would no longer be possible. Under the Government proposal, a girl or woman in the position of 'C' would be forced to remain in this jurisdiction, with terrible potential consequences for her health and indeed life. This amounts to the most significant practical restriction on the right to life of women. In order to understand the implications of the proposed legislation for travel, it is worth examining the judgment of the High Court in the 'C' case.

VII.2 The 'C' Case
In the 'C' Case (A & B v. Eastern Health Board, Judge Mary Fahy, C and the Attorney General [1998] 1 IR 4), a 13-year-old girl who had become pregnant as a result of rape had been placed in the care of the Health Board. The Health Board sought permission from the District Court to take C abroad for an abortion, and that was how the case was initiated. The Health Board asked the Court to exercise its power under section 17(4) of the Child Care Act, 1991 to make a direction permitting her to be brought abroad for a termination of her pregnancy. The District Court heard the evidence of two psychiatrists who had examined the girl. In his testimony, Dr. Gerry Byrne told the District Court of the girl's suicidal thoughts arising from her pregnancy, and expressed his clinical judgement that if she did not have her pregnancy terminated, she would act on them. He said she faced a very significant risk to her life. The District Court duly made the order permitting the Health Board to bring C to England for a termination, but this order was challenged by C's parents before the High Court.

VII.3 The High Court Judgment in the 'C' Case
In his High Court judgment striking down their challenge, Judge Geogheghan reviewed the freedom of travel guarantee in Article 40.3.3, and held that this did not give some new substantial right, but rather 'was intended to prevent injunctions against travel or having an abortion abroad.' He said 'The amended Constitution does not now confer a right to abortion outside of Ireland. It merely prevents injunctions against travelling for that purpose.' Thus, he said, under the travel amendment, a Court could not make an order authorising travel to another jurisdiction for an abortion that was not lawful under the Irish Constitution. This interpretation of the travel guarantee he held to be in conformity with the view of the Supreme Court in the Article 26 Reference relating to the Information (Termination of Pregnancies) Bill, 1995 case. The only reason why he allowed the District Court order enabling the Health Board to bring C abroad for a termination was because she was suicidal. According to the psychiatric evidence, the continuation of her pregnancy posed a threat to her life, that could only be avoided by the termination of her pregnancy. But he said that he would not have permitted such an order had she not been suicidal; if the abortion would not have been lawful in this jurisdiction. So the basis for the 'C' case decision was the ruling in the 'X' case in relation to the threat of suicide.

VII.4 Implications of the Government's Proposal for 'C' Case Situations
If this Government proposal is passed, and suicide is ruled out as a threat to life of a pregnant woman, then the basis for the 'C' case decision is removed and a young woman or girl in C's position would not be able to receive assistance to travel abroad. This problem will also apply to asylum seekers, and to any woman who needs assistance or permission to travel (prisoners, children in care, or wards of court); in other words, the most vulnerable categories of pregnant women.

VII.5 Ruling Out of Suicide Risk
The ruling out of suicide as a risk to life makes an artificial separation between mental and physical health that does not conform to existing medical practice. The argument that women may fake threats of suicide overlooks the fact that there always ways of safeguarding the manner in which a doctor's or psychiatrist's discretion is exercised for example by providing that the risk be assessed by two practitioners or psychiatrists.

There are cases, admittedly very rare cases, where termination is the appropriate treatment for a woman who is pregnant and suicidal. Such cases occurred in 1992, and again in 1997. Similar cases have also occurred in Northern Ireland involving pregnant women in state care for whom termination of pregnancy was deemed the appropriate treatment due to genuine suicidal intent; in each case, three medical professionals, psychiatrists or obstetricians, gave evidence as to the existence of the risk to the woman (see Chapter 8 of Kingston & Whelan with Bacik, Abortion and the Law. Dublin: Round Hall, 1997, for further discussion of these cases).

VIII SECTION 5: MINISTERIAL POWER

VIII.1 Power to the Executive
Section 5 gives extensive power to the Executive, allowing the Government to authorise a member of Government to make orders relating to any of the delegated powers provided for under the Act. Some of those powers will in fact critically affect the substantive operation of the Act and would be more properly the function of the legislature. This is another example of the potential breach of the separation of powers doctrine through this proposal.

IX SECTION 7: DATE OF COMING INTO EFFECT

IX.1 Two Months Minimum Delay Before Implementation
Section 7(2) of the proposed legislation states that the legislation shall come into effect not earlier than two months after its passing. There is no indication as to what the effect of Article 40.3.4 is in the interim. Indeed, no clear answer has been given as to the effect of the Second Schedule generally; particularly if the Twenty-Fifth Amendment Bill is passed, what is its status during the 180 day period when the Oireachtas can either pass it in full or veto it?

IX.2 Problems with Separation of Powers Doctrine
Section 7(2) also provides that the order bringing the Act into effect can only be signed by the Taoiseach, and again this provokes a question about separation of powers, since it gives extensive and potentially unconstitutional power to the Taoiseach to assert an effective veto over bringing into effect legislation which has been passed by the people in Referendum. Again this is unprecedented and no guidance is given as to the status of the legislation in the intervening period.

X EFFECT OF THE MAASTRICHT PROTOCOL

X.1 Possible EU Challenge to Proposed New Articles 40.3.4 & 40.3.5
The Protocol to the Maastricht Treaty applies explicitly to exclude EU law from the 'application in Ireland of Article 40.3.3 of the Constitution of Ireland'. The Solemn Declaration of 1 May 1992 was later inserted to expressly exclude from the ambit of the Protocol the freedoms to travel and to information. Thus, the Protocol applies only to the issue of abortion itself as affected by Article 40.3.3. This exclusion clearly would not cover the new provisions in Article 40.3.4 and 40.3.5. This means that subsections 4 and 5 could be challenged under EU law.

X.2 Effect of Decision in SPUC v. Grogan Case
In SPUC v. Grogan, European Court of Justice, October 1991, the European Court of Justice held that medical termination of pregnancy constituted a service within the meaning of the Treaty of Rome where 'performed in accordance with the law of the State in which it is carried out.' The Court in that case ruled that it had no jurisdiction since there was no commercial link between the activities of the information providers in Ireland (the students' unions against whom the case had been taken), and the providers of terminations in England (the abortion clinics). But the judgment leaves open the possibility that EC law may be invoked in future, in a challenge to the provisions in Article 40.3.4 and 40.3.5, for example. Such a challenge would not be excluded by the Maastricht Treaty Protocol since it applies only to Article 40.3.3.

XI INTERNATIONAL LAW - POSSIBLE IMPLICATIONS

XI.1 Relevant International Law Instruments Protecting the Woman's Right to Life
The right to life of women and men is protected by international legal instruments, including the United Nations Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the European Convention of Human Rights.

By ruling out suicide, the international law protection for women's right to life is undermined. Under this proposal, the equal right to life of the woman becomes inferior, and the right of the foetus or unborn becomes superior. Where a pregnant woman is suicidal but denied abortion, in a situation where that abortion is deemed necessary treatment for her suicidal condition, her right to life is not protected.

XI.2 International Prohibitions on Torture and Inhuman or Degrading Treatment
These international instruments also prohibit torture and inhuman or degrading treatment or punishment. If a woman is denied abortion on the grounds that she is suicidal, and is therefore forced to carry her pregnancy to term under constant and ongoing risk of suicide, this could be held to amount to a breach of her right to freedom from 'inhuman or degrading treatment' under international law.

XI.3 Other Relevant International Instruments
Such a ban could also be contrary to the right to health care protected by the Universal Declaration, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Elimination of All Forms of Discrimination Against Women, particularly because of the extra burden imposed upon women who are unable to travel abroad, or in respect of women who have encountered such difficulties in travelling abroad that they have had later abortions. To deny a pregnant minor, such as X or C, an abortion, could also be contrary to the UN Convention on the Rights of the Child.

XII THE CONTEXT

Finally, it is worth noting that 6,500 Irish women had abortions in England last year, a figure likely to rise to 7,000 this year. They had terminations under the Abortion Act 1967 for different reasons as provided for under that legislation, such as risk to health, rape etc. This referendum is irrelevant to them and will do nothing to assist any of them. But by ruling out suicide as a ground of risk to life, it will potentially endanger the lives of the most vulnerable women, in the same position as C, who are pregnant, suicidal and unable to travel abroad unaided.

For this reason, as well as for the significant legal flaws, both substantive and procedural, that it contains, the Government's proposed legislation should be opposed.

 
Return to top


">
 
Send
Contact us
Information Resource LibraryOpinion, Comment & ReviewsEvents DiaryPsychological Issues
Home © PCF copyright