Ireland’s Battle for Abortion Rights

Ireland’s Battle for Abortion Rights

Last May, Ireland made history by becoming the first nation to legalize same-sex marriage by popular vote. Will abortion rights—the final stronghold of Catholic morality in the island nation—be next?

Dubliners march in memory of Savita Halappanavar, who died of a miscarriage after being denied an abortion, September 29, 2012 (William Murphy / StreetsofDublin.com)

On a sunny Saturday afternoon last May, thousands gathered in the main square in Dublin Castle and the surrounding streets and pubs awaiting the results of a vote that would determine if Ireland would legalize same-sex marriage. After months of tense public debate, campaigns, counter-campaigns, celebrity endorsements, emotional personal testimonies, and thousands of intimate discussions around kitchen tables across the country, observers within and outside Ireland held their breath for the final tally. When the results were announced, the nation erupted: Ireland had made history by becoming the first nation to legalize same-sex marriage by popular vote.

Although Ireland is today celebrated around the world as a beacon of inclusiveness, equality, and human rights, a serious challenge to this nation’s humanity remains: the Irish constitution continues to ban abortion except in cases when a pregnancy endangers a woman’s life. Will this final stronghold of Catholic morality in Ireland be the next battleground for change?

Twentieth-century Irish society was dominated by the Roman Catholic Church: the sale of contraception without restriction was only possible by 1992; homosexuality was criminalized until 1993, and divorce remained illegal until as late as 1996. The twenty-first century has transformed this island nation, bringing with it not only economic booms and busts, multinational corporations and tech giants, and inward migration by the Irish diaspora and foreigners alike, but also new challenges to the religious and conservative establishment that has long maintained a stranglehold on Irish culture and values. Ireland is changing: the win for marriage equality and the enactment of the Gender Recognition Act in 2015 (which allows trans* people to legally change their gender), are clear evidence of a cultural shift away from the dogma of the church. But one issue that strikes at the heart of Ireland’s Catholic morality remains—the right to abortion.

In the early 1980s, in response to liberalizing domestic contraception laws and Roe v. Wade in the United States, anti-choice campaigners in Ireland lobbied for constitutional protection of “the unborn.” After an ugly period of public debate, the Eighth Amendment to the Irish constitution was passed by referendum in 1983. Protecting the right to life of the fetus from the moment of implantation, the Eighth Amendment has meant an almost total ban on abortion. The thirty-plus years that followed have been marked by a litany of horrific cases where women in Ireland, their lives now equal to that of an unborn fetus, have been denied their bodily integrity, their health, their dignity, and in some cases, their lives.

Following Supreme Court cases, rulings by the European Court of Human Rights, and key pieces of legislation (the most significant being the 2013 Protection of Life During Pregnancy Act), abortion is presently legal in Ireland only in cases where there is a “real and substantial risk” to the life of the pregnant woman, including the risk of suicide (as determined by a panel of three to seven medical practitioners). An abortion outside of these circumstances leaves the patient or anyone who assists in the procedure subject to criminal prosecution with a prison sentence of up to fourteen years.

But women and girls whose health is threatened by pregnancy, who have been raped, or who are carrying a fetus with a fatal anomaly cannot have abortions in Ireland. This dangerous distinction between the threat to life and the threat to health coupled with the potential for criminal prosecution puts medical practitioners in a dangerous position: the decision to refrain from performing a “health-saving” termination may result in the irrevocable mistake of failing to perform a life-saving one.

Women are free, however, to travel abroad for abortions. This right to travel was only granted by the Irish Supreme Court in 1992, after the infamous X case, where a fourteen-year-old girl who was pregnant was prohibited from travelling to the United Kingdom for an abortion. X, who had been raped by a neighbor, was suicidal at the prospect of her unwanted pregnancy. After some legal wrangling, the Supreme Court ruled that because the pregnancy posed a “real and substantial” risk to her life, she was entitled to an abortion under Irish law. A series of referenda followed the X case, which resulted in two important gains: women were granted the right to travel abroad for abortion services, under any circumstances, and the right to access information about abortion services abroad within Ireland, even if this information can only legally be provided by select medical authorities and must be presented alongside alternatives such as adoption and parenting. Medical professionals in Ireland cannot make direct referrals to abortion services abroad. But by allowing women the right to travel for an abortion, the state essentially decided that it didn’t care whether women had an abortion or why, as long as it wasn’t in Ireland.

Going abroad for an abortion is primarily an option for the more privileged, who have the financial resources and are able—physically and legally—to travel outside of Ireland. On average around 4,000 women travel from Ireland each year to access abortion services in the United Kingdom. This number does not include those who travel to other European countries or choose not to list their real address. So the notion that the law is preventing abortions from taking place is farcical—Irish women are simply having them abroad. This also leaves the most marginalized and at-risk women—women who are poor, migrants, disabled or minors, unable to access what is often essential healthcare. These women and girls are then forced to have illegal abortions in Ireland, or to continue with unwanted pregnancies.

But the problem posed by the Eighth Amendment also extends beyond women who want or need their pregnancy terminated. It dramatically impacts maternity care and the control that women have even over pregnancies they do want. As fetal life takes priority over a woman’s health at all stages of pregnancy, these women lose their right to make decisions about their own health and, in fact, hand it over to medical professionals who will not treat them if it endangers the life of the fetus.

Recent cases have highlighted both the danger and the absurdity of Irish abortion policies. In 2012 Savita Halappanavar, a thirty-one-year-old Indian woman living in the west of Ireland, died from septicaemia while undergoing a miscarriage at seventeen weeks of pregnancy. Despite Halappanavar having made repeated earlier requests to terminate an already miscarrying fetus, she was told by her midwife that she would not be permitted an abortion as Ireland was a “Catholic country.”

In another case at the end of 2014, a pregnant mother of two who was fifteen weeks pregnant was hospitalized and died suddenly from severe brain trauma. After the woman was declared clinically dead, the hospital insisted on keeping her on life support, against the wishes of her family, as there were still signs of fetal life. Stories emerged of doctors bent over the constitution trying to interpret whether they would be breaking the law by allowing this woman to die. Her family legally challenged the hospital and after three weeks of excruciating legal and public debate, the high court ruled that life support could be turned off as the fetus’s chances of survival were minimal.

Thousands of people took to the streets in grief and anger as the details of Halappanavar’s death emerged, and both cases sparked national and international outrage. These disturbing stories marked the public consciousness in ways that will be difficult to forget—and they have also strengthened opposition to the Eighth Amendment.

 

The marriage equality referendum has undoubtedly helped pave the way for abortion reform. The battle for marriage equality was long and hard—it took over a decade of political advocacy and grassroots campaigning by LGBT rights groups like GLEN and Marriage Equality to place the issue squarely on the Irish political agenda. These groups have not only fought for legislative and policy changes such as decriminalizing homosexuality (1993) and legalizing same-sex civil partnerships (2010) but they also helped unify support among ordinary Irish people, unions, social justice organizations, and politicians, in the form of the “Yes Equality” campaign for same-sex marriage. They mobilized the Irish public to do their part by talking to their friends, family, and neighbours about what the issue meant to them. The campaign ultimately helped win a decisive vote on marriage equality: 62 percent of the country said “yes.”

The marriage equality referendum politicized an entire generation: 66,000 new voters registered in advance of the referendum (significant in a country with a total population of 4.8 million). Thousands of citizens, particularly young people, volunteered their evenings to canvass for marriage equality and as a result, have become politically engaged in other issues like housing rights, the Syrian refugee crisis, and broader issues of gender equality as well. Many of them are now shifting their focus to the Eighth Amendment as the next challenge.

Similarly, the battle against the Eighth Amendment has been fought by a variety of groups over the past thirty years, but the movement feels especially vibrant right now. No longer confined to feminist or women’s rights circles, the concerns of Eighth Amendment activists have gone mainstream. Leading lawyers, doctors, and midwives are now speaking out against the medically dangerous and clinically impractical abortion law. “The current position is unworkable for women and for health workers,” said Dr. Peadar O’Grady, a founding member of Doctors for Choice. “Legal restrictions on access to abortions increase the number, the delay, the cost, and the medical complications. Restricting access to abortion is counterproductive, dangerous, and immoral.” Joining calls for a repeal of the Eighth Amendment, former head of Ireland’s National Maternity Hospital Peter Boylan recently asked the question that captures some of the desperation that many women feel about Ireland’s abortion policy: “How close to death do you have to be?”

Groups like the Abortion Rights Campaign, the National Women’s Council of Ireland, the Irish Family Planning Association, and Terminations for Medical Reasons have also helped draw international attention to Ireland’s untenable abortion policies. Various UN human rights bodies, including the Human Rights Committee and the Committee on Economic, Social and Cultural Rights, have found Ireland’s abortion laws to be in clear violation of international human rights law and have recommended both a referendum on abortion as well as revising legislation to comply with international standards. Following Ireland’s examination by the UN Human Rights Committee in July 2014, committee chair Sir Nigel Rodley commented: “Life without quality of life is not something many of us have to choose between and to suggest that, regardless of the health consequences of a pregnancy, a person may be doomed to continue it at the risk of criminal penalty is difficult to understand. Even more so regarding rape when the person doesn’t even bear any responsibility and is by the law clearly treated as a vessel and nothing more.”

Articulating the right to abortion as a human rights issue has helped draw mainstream Irish human rights organizations such as the Irish Council for Civil Liberties and Amnesty International Ireland, which were pivotal in winning the marriage equality referendum, into the movement for abortion rights. Additionally, a number of high-profile Irish celebrities have “come out” in support of reform over the past six months, such as singer Sinead O’Connor and actor Cillian Murphy. Columnist Roisin Ingle and comedian Tara Flynn have publicly shared stories of their own abortions. Following his wife’s abortion, comedy director Graham Linehan collaborated with Amnesty International on a campaign for abortion rights last October. Abortion can simply no longer be ignored.

As Ireland gears up for a general election on February 26, the Eighth Amendment is quickly becoming a red-line issue, just as marriage equality was during the 2011 election. Reports from the election trail indicate that both the media and ordinary voters are questioning politicians about their views on abortion. Several political parties have now added a referendum on abortion to their manifestos, and individual politicians are openly changing their views. Most notably, the present minister for health Leo Varadkar, who previously only supported access to abortion in cases where there was a fatal fetal abnormality, recently came out in support of abortion access in cases where there is a serious risk to a woman’s health. Fine Gael, the party that currently holds the majority of seats in government and is leading polls, has not yet committed to a referendum if elected, but has promised to hold a “constitutional review” and a “citizens forum” on the issue within six months.

Assuming a referendum on abortion will eventually take place and increased abortion access will be accepted in Ireland, the big question is—how far will reforms go? The majority of politicians are focussing on an exceptions-based law, that is, maintaining some form of the Eighth Amendment in the constitution but allowing greater access to abortion in certain circumstances, such as fatal fetal anomaly or rape. The Labour Party (who have long promised to repeal the Eighth Amendment) proposed a potential “post-Eighth” policy last year, but even that focuses on extreme cases and exceptions. “The Labour policy is conservative by European standards, but is perceived as liberal here, which is worrying,” said Mairead Enright, a law professor at University of Kent and a member of Lawyers for Choice. “It refers to abortion access up to twelve weeks in cases of “real and substantial risk to health”—which is the language of the X-case, which is also worrying . . . it certainly doesn’t subscribe to the World Health Organisation standard, which encompasses social and sexual well-being, and less serious risks to physical and mental health.”

Law reform that focuses on exceptions and hard cases won’t bring Ireland in line with international standards. Nor will it help the rape victim who may still have to endure an onerous examination to prove she was raped in order to have an abortion, or the majority of women who continue to leave Ireland on a daily basis to access services abroad. Some may argue that slow, incremental change is the strategic way forward for now. But if we merely amend the Eighth Amendment to allow abortion in limited, exceptional cases, it may potentially be another thirty-plus years before a government is willing to take the law further. “Constitutionalization of abortion law is a terrible idea because it prevents law from evolving with society,” observed Enright. “It also has a significant chilling effect on women and doctors who feel the gravity of a constitutional ban because the constitution is the fundamental law of the land. . . . From a democratic perspective, we have a very active, serious pro-choice movement, arguing for ‘free, safe, and legal’ for at least a minimal period. It is worrying that no political party is engaging with this possibility—which is not an unrealistic demand, it is a European standard.”

This is one of the pivotal differences between the fight for the marriage referendum and a potential abortion referendum. The marriage referendum could be boiled down to a simple “yes” or “no.” But the abortion referendum has a variety of answers, a variety of options, and a variety of positions. Marriage equality was also a very different sell than abortion rights. Marriage equality was presented as means of allowing all members of society to celebrate their love equally. Those of us fighting for abortion rights believe we’re fighting for equality, as well as for our health and our lives. However, for the majority of adults—many of whom were weaned on The Silent Scream in secondary-school religion class—abortion continues to be a dirty word, one that conjures up inaccurate but powerful and horrific images, stories, and emotions. Anti-choice campaigners already have all the ammunition they need. Well-funded anti-choice and “pro-family” campaigns and organizations such as Family and Life, the Pro Life Campaign, and the Iona Institute deliberately evoke traditional Catholic and Christian values to stigmatize abortion. But the marriage equality victory offers the glimmer of hope that these aren’t the only values that will determine what the majority of the Irish electorate wants for their country’s future.

As anti-choice groups shift their focus to the growing movement for a referendum on the Eighth Amendment, it’s clear that abortion rights won’t be won without a fight. Anti-same-sex-marriage campaigners ran a vicious anti-referendum campaign, covering the country with posters sporting slogans like “children deserve a mother and a father,” “don’t redefine marriage,” and “she needs her mother for life, not just for nine months.” If these and past anti-choice campaigns (like Youth Defence’s controversial nationwide campaign built around the slogan “Abortion tears her life apart”) are any indication, an anti-abortion referendum campaign promises to be ugly. To complicate matters, Irish broadcasting rules mean that that all sides of a potential referendum debate must be given “equitable” space to express their opinions. During the marriage referendum, this often meant providing an unchallenged podium for bigots, who, although a minority, were given equal space to air their views. This is already happening again: in the emerging abortion debate, women’s deeply personal stories of abortion are being “balanced” by extremist anti-choice views.

Ireland needs to confront the reality of abortion—and accept that criminalizing it is not going to prevent it from happening. Prohibiting abortion is merely forcing our daughters, sisters, mothers, and untold numbers of women and girls abroad, away from their families and friends, away from the people and the doctors they know and trust. It is also putting our most vulnerable women, those who cannot travel, at risk. If abortion were free, safe, and legal in Ireland, the vast majority of abortions would take place in the first twelve weeks of pregnancy and could be administered simply by taking a pill in the safe and familiar surrounds of a local doctor’s office and a woman’s own home. Forcing women to travel for abortions simply delays the procedure, and makes it more stressful and dangerous for women.

As we look ahead toward the general election and the next four years of a new government, it is with both excitement and trepidation. An abortion referendum is an opportunity for our elected representatives—and the rest of us—to bring Ireland one giant step closer to deserving its reputation as a champion of human rights. We said “yes” to equality once. Can we say it again?


Sinead Corcoran is a reproductive rights activist in Ireland and works on policy and advocacy with the Abortion Rights Campaign.


Duggan | University of California Press Gardels