IRISH
ABORTION REFERENDUM 2018 – IRISH FEMINISM'S FINAL FRONTIER
Barry
Gilheany (c)
“Pro-Life”
opposition to the proposal to remove the Eighth Amendment or Article
40.3.3 designed to, in perpetuity, to forestall any attempt to
introduce liberalising abortion legislation in the Republic of
Ireland, from the Irish Constitution have condemned it as an attack
on “national self-determination” and defends the anti-abortion
firewall of Article 40.3.3 as “based on a particular vision of the
common good, which places a high value on personal freedom, while
limiting the deliberate ending of innocent human life” 1
I aim in this piece to show that the Eighth Amendment does anything
but protect national self-determination, the dignity of women or even
unborn life. That in reality the removal of the Amendment and the
promised accompanying legislation permitting elective abortion in the
first trimester of pregnancy represents probably the final stage in
the maturation of the Republic of Ireland as a sovereign and liberal
democracy. Irony of ironies, the Republic could well end up with an
abortion law aligned to the norm in Western Europe and one that is
more liberal that that of the British Abortion Act of 1967 with its
two doctor stipulation and where abortion is still criminalised under
the 1861 Offences Against the Person Act (and certainly more liberal
than that in Northern Ireland to where the 1967 Act was never
extended and where abortion is a devolved matter for the moral
majorities of the two tribes there. Truly Home Rule is no “ The
longer
Rome Rule!)
The
proposed referendum this year (most likely at the end of May) to
remove from Constitution of the Republic of Ireland the Eighth
Amendment or Article 40.3.3 which bans abortion in the Republic and
to replace it with a promise to introduce to introduce effective
abortion-by-request in the first trimester (three month period)
legislation may well represent the final denouement in the Republic's
generation long political, legal and cultural conflict over abortion.
The
draft heads of a Referendum Bill were passed at the weekly cabinet
meeting on 20th
February 2018 and a draft bill will decided at last week's Cabinet
meeting where Minister of Health, Simon Harris, is presented a
policy paper which will seek to repeal the second Irish statute (the
first is the Offences Against the Person Act, 1861) dealing with
abortion – the Protection of Life During Pregnancy Act, 2013 and
replace it with new legislation.
The
legislation will provide for terminations “without specific
indications” (effectively abortion on demand) for up to 12 weeks or
the first trimester of pregnancy. The legislation will also enable
the provision of abortion pills in the first trimester in all medical
settings, although it will be a GP-led service. In addition it is
proposed that terminations will only be provided after 12 weeks where
there is a “serious threat” to the life, physical health and
mental health of the mother. In the case of the latter, the opinions
of three medical professionals must be sought; where both health and
life are at risk two must be consulted No gestational limits will be
applied in these cases of in that of fatal foetal abnormality2.
The
proposed new law will decriminalise women who procure abortions but
will impose criminal sanctions on medical professionals who carry out
abortions outside this legislative framework3
Thus
Article 40.3.3 or the Eighth Amendment is to be entirely removed and
replaced by a clause, the 36th
Amendment, which stipulates that the Oireachtas (the Irish
Parliament) may legislate to regulate termination of pregnancy.
To counter the spectres of the
abortion “industry” looking for prospective “customers” in
the manner of Big Tobacco seeking out new markets for its toxic
products amongst children in the developing world which the
pro-life/anti-choice conjures up as being behind the “pro-abortion”
lobby, I aim to show that the removal of the Eighth Amendment from
Bunreacht na hEireann and the proposed legislation to replace it can
represent a genuine Irish solution to a sui generis Irish problem. I
draw upon the works of the Irish feminist legal scholars Mairead
Enwright, Fiona de Londras from Birmingham Law School and Ruth
Fletcher from Keele University Centre for Law, Ethics and Society to
show how a model of abortion law change in the Republic of Ireland
can properly enshrine women's bodily integrity, agency and autonomy
while also accommodating societal interest in the value of unborn
life
The model for future abortion law
in Ireland developed by Enwright et al from Birmingham Law School
came out of their work as the group of legal experts for the
Commission for Repeal of the Eighth Amendment established by Labour
Women in late 2014 has been proposed by Labour Women. In addition to
this group of legal experts, this Commission also comprised a
political group, a medical group Its stated aim was to
… examine the best legal
and political strategies to accomplish:
- Repeal of Article 40.3.3 of the Constitution in its entirety
- The introduction of detailed legislation providing for the circumstances in which abortion may legally take place; the Access to Abortion Bill, 2015
It should be noted that the following
draft does not represent Labour Party policy whose Conference in
February 2015 passed a motion proposing more limited changes. This
model is designed with “women's lived experiences in mind”4
The proposed model is guided by four
principles:
First,
that such a law would regulate abortion in Ireland by primary
reference to the bodily integrity, welfare, agency, autonomy and
self-determination of the pregnant woman while still recognising a
public interest in preserving foetal life where possible and with the
consent of the pregnant woman. Such legislation would differentiate
in terms of time limit, for example, between abortions in differing
circumstances in which abortion is permissible. Five are proposed:
where there is a risk to health up to the end of the 12th
week of pregnancy; where there is a risk of severe or disabling
damage to health up to the end of the 24th
week of pregnancy; where there is a risk to life, including suicide,
no term limit. No term limits likewise in the cases of fatal foetal
abnormality and emergency. In addition key Guiding Principles are
inserted into the proposed law which would apply in the
interpretation and application of the law which would reframe
approach to abortion law5
These Guiding Principles would
- Guarantee access to abortion services in accordance with the provisions of the Act
- Protect the rights of the pregnant woman to;a. life;b. freedom from torture, cruel, inhuman and degrading treatment;c. bodily integrity and autonomy;self-determination, including the right to informed decision-making in relation to medical treatment;e. private and family life, including the right to privacyf. health, including the right of access to appropriate health-care in a safe and prompt fashion, and the right of access to healthcare information.
- Access to abortion services will not be hindered due to race, sex, religion, national or social origin, disability, HIV status, marital or family status, immigration status, sexual orientation, age or other social status.
- The maintenance of embryonic and foetal life is an important social function, which should be voluntary and consensual
In addition, the Bill would reinforce
the importance of consent to all medical treatment and decriminalise
abortion6
Second, in challenging the mainstream
consensus, this new Irish abortion law would not (I) provide for a
separate rape ground in order to obviate the requirement of any woman
to prove rape or to participate in any criminal law process; (ii)
would provide for a simple health ground applicable in early
pregnancy removing any requirement to prove severe or disabling
threat to health . It would also remove the “fatal foetal anomaly”
in current legislation. In simplifying health indications thus, the
group feel that they are reflecting current European and national
human rights law7.
Third, the proposed law seeks to
replace “pronatalist paternalism” in Irish medical practice with
a “welfare orientation” by which the pregnant woman is seen as
the patient and abortion as a medical practice and which would enable
medics to pursue the course of treatment they believe is suitable for
their primary patient (i.e. the pregnant woman) and facilitate a
genuinely equal doctor-patient relationship8.
Fourth,
the proposed law while ensuring that abortion is actually as widely
available as possible, respects the 'deeply held convictions of
members of the medical profession and of the general public'
regarding the status of the unborn. Medics refusing to participate
in abortion on the basis of a “good faith” objection would be
allowed to exercise such conscientious objection ( except when there
is an immediate risk to the life or severe and disabling damage to
the health to the woman) providing they inform and maker alternative
arrangements for the patient. However health-care institutions may
not invoke such objections and a duty would be placed on the Minister
of Health to ensure that maintenance of a “safe and timely”
service while accommodating conscientious objectors. The
proposed law would establish a Review Tribunal of mixed
representation of medics, practising lawyers and “other people”
which would hear objections to adverse decisions “within strict
deadlines” so that the pregnant woman can make representations.
Finally to ensure access to abortion services for women, the law
would prohibit harassing or intimidating behaviour” outside
premises where abortion services are provided and provide an
obligation to provide full information to women on their entitlements
under the Act9.
A possible model for
reconciling the women's right to bodily integrity is given by Ruth
Fletcher in evidence to the Oireachtas on the Protection of Life
during Pregnancy Bill, 2013. She argues that the “best ethical
argument for legal recognition of the 'unborn' from its earliest
stages is that it will, subject to assistance from the pregnant
woman, become a person in the future. Since the future personhood
argument does not apply to foetuses with lethal abnormalities, they
should be excluded from legal definitions of the 'unborn'10.
A second pillar of a
compelling state or societal interest in the protection of unborn
life which does not negate women's bodily integrity lies on the
potential
of the
embryo/foetus to become a person, not on actual
personhood. The moral status that derives from this potentiality
cannot be superior to the moral status
that derives from sentience; i.e. the actual capacity to feel pain or
pleasure nor can it equivocate to the higher moral status which
accompanies personhood and the capacities for reason, will and
communication. Based on this balancing of the values that accrue
from potential person and actual personhood, Fletcher makes the
following recommendations: that
the unborn should be defined so as to exclude those foetuses which
have lethal abnormalities and will not have a future independent life
and that the unborn should be defined to mean “the foetus following
the earliest moment at which sentience is possible 11.
Critiquing the narrow
margins of the 'risk to life' ground for abortion in the 2013
legislation because of the supposed requirement under Article 40.3.3
to treat the life of the pregnant woman as the same
as the
life of the embryo ; Fletcher argues for a full evaluation of the
pregnant woman's interests as well as those of the unborn. Foetuses
are the bearers of biological life and future persons, but this kind
of lifer cannot be equated with that of breathing, feeling and
comprehending women. Thus a legal test should be: “It
is an offence to carry out a medical procedure, in the course of
which or as a result of which unborn human life is ended, where there
is a real and substantial threat to the life of the woman, including
to her life interests in mental and bodily integrity” (Fletcher,
2013).
Fletcher defends
conscientious objection provisions subject to the conditions that
they must apply to individuals rather than organisations and only in
circumstances where alternative provision is readily available.
Conscientious objection is not an absolute interest as it is
constrained by the need to prevent harm to others, pregnant women in
this scenario, Finally, if conscientious objection to the provision
of abortion is legally acceptable then so is a 'conscientious
objection' to the sustenance of an embryo/foetus within one's body.
Where an informed conscience tells a woman that termination of her
pregnancy is the best moral resolution to dilemmas that have arisen
in the course of this pregnancy, then that conscience is entitled to
respect, recognition and legal accommodation12
Finally, criminalisation
of women who seek abortions does not achieve the constitutional aim
of protecting foetal life. It has failed to prevent the hundreds of
thousands of abortions that Irish women have sought outside Irish
jurisdiction since the insertion of Article 40.3.3 into the Irish
Constitution will not prevent any more. Criminalisation in
stigmatising those with unwanted pregnancies and disabling their
healthcare providers has worsened immeasurably the physical and
psychological experience of unwanted pregnancy. Rather than
criminalising women who seek abortion, Irish legislation could
vindicate unborn life by investing in pregnancy-related care and
research into miscarriage. Thus the legislature should either
repeal Sections 58 and 59 of the Offences Against the Person Act 1861
(what better assertion of Irish independence and sovereignty from
Victorian British rule!), without replacing it with a new offence.
Or if it is not willing to follow the path of decriminalisation, it
should at minimum define the offence to exclude attempts to cease a
pregnancy and reduce significantly the maximum 14 years incarceration
penalty as it punishes a decision which gives effect to the
legitimate moral choices of women and their healthcare providers13
Abortion law, as it
stands in the Irish Republic is, from the point of view of women, is
is very formulaic, totally medicalised and almost completely negates
women's health needs, decision-making capacities and lived
experiences. I have outlined the elements of a progressive abortion
law in Ireland (and indeed elsewhere) One that makes the woman, as a
rights bearer with agency, autonomy and bodily integrity, at the
centre of decision-making but also one that, while refuting
personhood arguments for foetal rights, also engages with the case
for a compelling societal interest in the value of foetal life based
on its potentiality.
.To those that believe
that unborn law is sacrosanct from the moment of conception, I say
that no one on the pro-choice side of abortion divides seeks (or
should seek) to criminalise the holding of such a viewpoint in the
manner that those of use who do not believe, based on similarly
sincerely held ethical convictions, that absolute personhood begins
at the moment of conceptions and that no one on the pro-choice seeks
to negate the personal autonomy of those with pro-life convictions
either in body or mind in the way that generations of Irish women,
North and South, and those who have dissented from dominant
anti-choice cultures North and South. Feminists and humanists are
not deaf to arguments about the value of unborn life. The question I
would put to those who wish to retain the Eighth Amendment is : how
would the privileging of unborn life in its purely biological sense
have prevented the endangerment of unborn life from a thalidomide
scandal or the effects of a Bhopal or Agent Orange? How does it
prevent the foetus from exposure to noxious substances like alcohol,
tobacco, hard drugs and workplace or other environmental poisons that
its mother may be ingesting These questions are particularly
compelling now that the Supreme Court has found that Article 40.3.3
has ruled that the only right that the right has is to be born; it
appears to have no rights to protection from the sorts of harm listed
above.
1Dr
Anne McCloskey “Republicanism, Sovereignty and The Right to Life
The Pensive Quill 13th
February 2018
3''
''
4Mairead
Enright, Vicky Conway, Fiona de Londras, Mary Donnelly, Ruth
Fletcher, Natalie McDonnell, Sheelagh McGuinness, Claire Murray,
Sinead Ring & Sorcha ui Chonnachtaigh Abortion Law Reform in
Ireland: A Model for Change Feminists@law Vol 5, No 1 pp.1-8
(2015)
5Enright
et al: p.5
6''
'' p.4
7''
'' p.4
8''
'' p.4
9''
'' p.5
10
Dr Ruth Fletcher Opening Statement to the Health Committee
on the General Scheme of the Protection of the Protection
of Life During Pregnancy Bill, 2013 pp.1-5
http://oirechtas.ie/parliament/media/committees/healthandchildren/Dr-Ruth
Fletcher, - Keele University.pdf
11Fletcher:
p.2
12Fletcher:
p.4
13Fletcher:
p.5
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