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THE LEGALITIES SURROUNDING abortion services in Ireland were propelled into the spotlight in 1983 with a constitutional referendum and again in 1992 when the nation’s highest court ruled on the X Case.
In 2013, the debate rages on.
The Oireachtas Committee on Health and Children is gearing up for three full-day sessions, featuring both legal and medical experts, as well as pro-choice and anti-abortion organisations.
The group, chaired by Fine Gael TD Jerry Buttimer, has been asked to help the Government before it draws up legislation in line with its decision following the publication of the Expert Group report into the ABC versus Ireland judgement.
It is hard to strip away the emotion which pervades the debate, making it one of the most divisive issues in this country over the past 30 years.
Usually not a place for protesters, Dublin has seen thousands of people take to its streets for both pro-choice rallies and pro-life vigils; scenes reminiscent of those of 1992.
Over the past three decades, Ireland has seen numerous referendums, multiple expert groups and a plurality of court cases, making the debate anything but straightforward. The peculiarities of certain cases, various legal wrangling and the passion of two deeply-divided ‘sides’ can confuse the matter and lead to much misinformation being spread.
Last year, TheJournal.ie took a dispassionate look at the legal aspects, the referendums, cases taken and the expert group. Here, we update that information ahead of this morning’s first session in the Seanad chamber (see below for the schedule for Tuesday, Wednesday and Thursday’s hearings).
First off, abortion is illegal in Ireland. The Offences Against the Person Act of 1861 criminalised any woman – or anyone helping that woman – who “procured a miscarriage”. These laws remain on Ireland’s statute books.
The only exception is when there is a real and substantial risk to the life of the mother. This includes a risk arising from a threat of suicide, which is allowed for under current legal precedent because of the Supreme Court ruling in the X case.
In the Irish Medical Council’s guidance for medical practitioners, a doctor is told to undertake a full assessment of any risk of suicide in light of clinical research in the area. If a substantial risk to the life of the mother is found, an abortion can legally take place in Ireland.
If a complication arises where therapeutic intervention is required during pregnancy, doctors are legally allowed to proceed even if there is little hope of the baby surviving. The medical profession are duty bound to protect the life of the mother while making every effort to preserve the life of the baby.
It is illegal in Ireland to have an abortion in the case of lethal foetal abnormality. This issue was covered extensively last year as a group of women went to the Dáil to call for limited access to abortion services in Ireland for pregnant women who are told their babies are “incompatible with life outside the womb”.
Abortion information and travelling abroad
It is completely legal to provide information to people in Ireland about abortion services abroad. However, this is subject to strict conditions as set out in the 1995 Abortion Information Act. The Act does not permit just anyone to give information on abortion and lays down rules for those people or agencies who do provide it.
Names and addresses of abortion clinics abroad may be made available by doctors, specific agencies or individual counsellors. The rules apply to all providers of information but a distinction is made between information that is provided for the general public and information that is made available directly to a pregnant woman by a doctor or an advisory service.
It is also legal for women to travel abroad to avail of abortion services. A doctor in Ireland then has a duty to provide care, support and follow-up services for those women on their return.
However, it is illegal for a doctor or a one-to-one counsellor to encourage or advocate an abortion in individual cases. It is also unlawful for a doctor to make an appointment with a clinic on behalf of a pregnant woman.
Figures released by the Department of Health in the UK showed that 4,149 women gave Irish addresses when attending clinics to have terminations during 2011.
Referendums
On 7 October 1983, the Eighth Amendment of the Constitution was passed by the Irish electorate. It provided for the State’s acknowledgement of the right to life of the unborn with equal regard to the right to life of the mother. It effectively brought in a constitutional ban on abortion ever being legalised in Ireland. It ensured that any changes to the legal status of abortions (for any reason) would have to be put to the people and could not simply be completed at Government level.
Current arrangements around abortion services in Ireland stem not only from the Supreme Court ruling in the X Case but also from subsequent referendums.
Ireland has never voted on whether abortion (on demand) should be introduced in the State.
The electorate has voted on the right to travel, the right to information and whether or not to repeal the Supreme Court judgement in order to disqualify the risk of suicide as a grounds for an abortion.
On 25 November 1992, the Government put forward three possible amendments to the Constitution in the first abortion referendum after the X Case.
The people of Ireland voted to allow for the freedom to travel outside the State for an abortion. The amendment covering the right to obtain or make available information on abortion services abroad was also passed.
The third question on the ballot paper, the Twelfth Amendment, proposed to legislate for legal abortions. However, it said that the risk of suicide was not sufficient grounds to allow for such a legal abortion.
It shall be unlawful to terminate the life of an unborn unless such termination is necessary to save the life, as distinct from the health, of the mother where there is an illness or disorder of the mother giving rise to a real and substantial risk to her life, not being a risk of self-destruction.
This proposal, which would have seen the ruling in the X Case rolled back, was rejected by the electorate.
As a result, the status quo remained – that is, terminations are allowed where there is a real and substantial risk to the life of the mother, including the risk of suicide.
A similar amendment was put to the public again in 2002. Once more, it was rejected (this time marginally and the turnout at the polls was much smaller than in previous abortion referendums). If passed, the change to the constitution would also have introduced new penalties of up to 12 years in prison for anyone who performed an unlawful abortion.
Legal cases taken
The landmark X case came in 1992 after a 14-year-old girl fell pregnant after being raped by a man known well to her family. The victim and her parents decided to travel to the UK to undergo an abortion. The family informed the Gardaí of their plans and asked whether the foetus could be tested after it was aborted to provide proof of the paternity of the accused in the rape case. After being asked his advice on the matter, Attorney General Harry Whelehan obtained an interim injunction to stop the termination in order to protect the Constitution.
The High Court upheld the injunction but an appeal to the Supreme Court was successful and Miss X was granted leave to travel for a termination. The presiding judge deemed that the risk of life to the girl was not less than the danger to the right of life of the unborn.
Just five years later, a similar case arose when a 13-year-old girl, who became known as Miss C, became pregnant after being raped. She was taken into the care of the Eastern Health Board, and requested an abortion. The EHB was granted an order to allow for an abortion abroad but this was challenged by Miss C’s parents. The High Court found that she was entitled to a lawful abortion here on the grounds that her life was at risk because she was suicidal and that risk would increase as her pregnancy advanced. Despite being legally granted an abortion in Ireland, the health board brought Miss C to the UK for the termination.
The case of D versus Ireland was heard in the European Court of Human Rights in September 2005 with Miss D claiming her human rights were violated because of the lack of abortion services here. Her baby had been diagnosed with foetal abnormalities so severe it could not live outside the womb. The case was dismissed after the court ruled that the aggrieved individual had not brought an action before the Irish courts, thus failing to exhaust all domestic avenues open to her.
The most recent legal challenge to Ireland’s abortion laws came in the A, B and C versus Ireland case at the European Court of Human Rights in 2010. Taking the case, three women said their rights had been violated because they were forced to travel abroad for terminations. The court found that Ireland had breached C’s constitutional right to a lawful abortion in Ireland.
C had a rare form of cancer and when she discovered she was pregnant she feared for her life as she believed the pregnancy increased the risk of her cancer returning. She argued that there was no effective procedure available in Ireland for assessing that risk – and therefore she nor her doctors could ascertain if she was entitled to a lawful abortion in Ireland.
Although the current arrangements allow for legal abortions in very particular cases where the mother’s life is in danger (including from the risk of suicide), a large grey area emerges because of a lack of legislation in the area.
Giving its judgement in the A, B & C versus Ireland case, the European Court of Human Rights found that the reality in Ireland is different to the legal theory. It said it had concerns about the “effectiveness of the consultation procedure [between a woman and her doctor] as a means of establishing…qualification for a lawful abortion in Ireland”.
It said that while the constitutional provision (as interpreted by the Supreme Court in the X Case) allows for certain lawful abortions, the fact that they have never been legislated for means that “absolute prohibition” and “associated serious criminal offences” remain in force and contribute to the “lack of certainty” for a woman and her doctors.
Therefore, women who legally qualify for an abortion in Ireland often end up travelling abroad to have the procedure.
Against this background of substantial uncertainty, the Court considers it evident that the criminal provisions of the 1861 Act would constitute a significant chilling factor for both women and doctors in the medical consultation process, regardless of whether or not prosecutions have in fact been pursued under that Act.
Both the third applicant and any doctor ran a risk of a serious criminal conviction and imprisonment in the event that a decision taken in medical consultation, that the woman was entitled to an abortion in Ireland given the risk to her life, was later found not to accord with Article 40.3.3 of the Constitution. Doctors also risked professional disciplinary proceedings and serious sanctions.
An expert group was set up in January 2012 to examine how best to deal with the court’s ruling. It reported its recommendations, taking into account the constitutional, legal, medical and ethical considerations, last November.
The Government is now due to draft legislation and regulation. Which brings us up-to-date with what is happening at Leinster House today. The aim of the meetings over the next three days is to gather information which will be of assistance with the creation of public policy.
-All hearings to take place in the Seanad Chamber
Tuesday, 8 January
Session 1: 9.30am – 11.30am:
Session 2: 11.45am – 1.45pm
Session 3: 2.45pm to 4.45pm
Session 4: 5pm to 7pm
Wednesday, 9 January (legal hearings)
Session 1: 9.30am – 11.30am
Session 2: 11.45am – 1.45pm
Session 3: 2.45pm – 4.15pm
Thursday, 10 January
Session 1: 9.30am – 11.30am
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It is a typical situation in Ireland in which the roles of religion, morality and law are confused.
On the religious aspect, I am not quite sure why a more than 80 per cent Roman Catholic Dail needs to get enlightenment from the hierarchy of their own Church. Of course we should bear in mind that the RC is not interested in a dialogue. It’s presence is to enable it to dictate its dogma to its own followers. My preference is that the RC Church should do its dictating in Church, in the newspapers, in its letters to its flock and in all the fora where it has the opportunity so to do but not to do so in the Dail, which is supposed to be a civil legislature for all of the people. Ireland is not and should not be a vassal of The Vatican. I see no need for further religious doctrine classes for our legislators.
On morality, We are all well informed of the Judeo-Christian ethic but, in my respectful view, the morality of the vexed issue of termination of pregnancy is primarily, if not exclusively a matter for the moral conscience of each pregnant mother according to her individual conscience and circumstances. I vale a pregnant woman and indeed all women vastly more than a foetus. I do not permit religious dogma or a strange notion of morality blind me to the human worth of women. That said, I can see how an exclusively male, celibate and woman avoiding clergy might find it easier and more palatable to blind themselves to the worth of women.
On law, it is so dangerous and so inappropriate to use law, whether legislation or Constitutional provision as a normative method of prescribing religious or moral values. That is not the role of law. Law is a method of social regulation.
My position is that permitting Roman Catholicism to influence and even to dictate legislative policy is the hallmark of a theocracy. Just as the Roman Catholic inspired Article 40.3.3 had a pernicious effect, so also wil any legislation which is influenced and guided by any religion but, in this instance, by the predominant and excessively influential religion, Roman Catholicism. As a recovering Roman Catholic I know what the true values and ethical quality of my former religion are and I need no reminder. By its actions, I have known it.
Let us please be in our governance and laws a true civic Republic and let us leave Roman Catholicism or any other religion outside of the Dail.
Am I correct that the Pope has made yet another denunciation of the evils of abortion. What exactly do our legislators not understand about the position of the Roman Catholic Church? Why must the views and dictat of he Church be consulted? Do we not already know its immutable, judgmental and condemnatory position.
I say on this issue, keep religion out of law and keep law out of the practice of medicine.
I see nine religious groups on Thursday getting in ahead of three pro-choice groups. No comment on that needed, but I understood Atheist Ireland had been invited to make representations too? Is that schedule fully up to date?
Hi Robin,
Yes Atheist Ireland has been added to the lineup. Thursday morning session – have updated the piece. Thanks, Sinéad
Incidentally, I should say that the article above, explaining the reasons for the three days of hearings is a superb piece of clear, explanatory and informative journalism. My respect for the The Journal on its informative role on this debate and in providing a forum for timely exchange of views.
Thanks Peter, your comment is much appreciated!
The crux of the argument is that it is a complicated situation which isn’t true
The Supreme Court in AG v X was interpreting the Constitution and found that as the constitution stood, after the 1983 referendum, abortion could be allowed in certain circumstances. The people of Ireland have been given an opportunity to change this but haven’t. The ’92 referrendum confirms that the X Case is good Law and the wishes of the people should be respected.
I have a feeling that these meetings are merely to show work being done and nothing will happen. Also one of the legal experts is a No campaigner (had an article on this very paper a few weeks back), surely that would discount him.
I think the 2002 referendum would have provided a better solution to this issue. And that referendum only failed because of a split among the pro-life side which was over it taking a more expansive position on where the right to life should begin rather than just was the threat of suicide sufficient grounds for abortion.
I don’t think that the views of any religious denomination are relevant. They’re entitled to have a viewpoint but I don’t see why a secular legislature should need to consult them. Unless the law was affecting religious freedoms or directly impacts on their communities. E.g. It would be reasonable to consult Protestant groups if you were changing their was a plan to change the funding of Protestant schools or Islamic groups on issues affecting discrimination against Muslims in society. In fact, I strongly dislike that it is only religious groups that have been called to make a pro-life case. And how it results in anyone taking a pro-life position being labelled a theocrat regardless of their underlying reasons.
My position is that all the worst things in human history have happened because a certain type of human has been either demonised or dehumanised to the point where it became acceptable in the minds of many people to treat them badly. The extent of how badly they were treated depended on how vehemently a society considered them “lesser,” “not fully human” or had successfully demonised them. If you look at how racial minorities, women, people with disabilities, gay and bisexual people, religious minorities etc. have been treated by societies throughout history and even today you see that common pattern.
The unborn child is clearly a living organism, she/he satisfies the 7 characteristics of living things. They have their own distinct DNA and are a separate organism from the mother. Their species is human. Their DNA is obviously human. So under that basis, basic human rights should apply to them. And no law should take that most basic human right away. Unborn children have been subject to similar dehumanisation by many to the point where its considered acceptable to take their life away. And no law can justifying denying the most basic human right of all.
Obviously if the mother’s life is endangered by the pregnacy, whatever necessary medical intervention must be taken to protect her life most of all. Even when this sadly results in the death of the unborn child. Its a case of saving the life that can be saved. And I’d support any clarification of regulations to make clear that when their is a physical risk to the mothers, doctors would be required to do everything necessary to protect the mother. But their is no reliable way to assess suicidal ideation and it’s very easy to claim it. Plus the idea that an abortion would somehow cure a suicidal ideation as opposed to psychiatric intervention and counselling over a prolonged period is very misguided.
Over 4000 abortions in the UK in 2011 were from Irish women, that’s about 12 a day, didn’t think the number would be that big, out of curiosity roughy how many children are born in Ireland per year?
Roughly 80K.
this is a load of my b0ll1x!! Governments around the world get told what’s what with a lot of issues yet choose to go their own way to suit their agenda in the end!! It’s shocking to think something we voted for 20 years ago still hangs in the balance today and here we are wasting time watching this pointless distraction exercise!! We the people are to blame for this not being wrapped up long ago and we will be to blame as this runs on and on and on for far too long!!
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