Ireland's Abortion Law

Several people have asked me how our laws can directly contradict our own Supreme Court, which ruled that a pregnancy may be terminated when it threatens the woman’s life. How was this disconnect allowed to continue until somebody died? It’s not easy to explain, but I gave it my best shot.

It’s a constitutional impasse. The Supreme Court cannot force the introduction of a law, nor can it strike down existing legislation. It can only reject as unconstitutional bills referred to it by the President before signing. So the existing law – a blanket criminalization of abortion (for which the penalty is life imprisonment!) – stands, even if it is in conflict with the constitution.

The government has a clear duty to amend the law to reflect the Constitution – indeed, has had that clear duty for 20 years now – but legislature is meant to be the sovereign voice of the people so nothing has the power to force it to legislate, and neither major party wants to handle the political poison chalice of abortion. Even with the Catholic Church in general disrepute, religious observance at an all-time low, and polls showing strong support for abortion in some circumstances, framing the legislation would still spark huge ideological conflict in the conservative grassroots of both. And it takes a lot to shift the idea that abortion = killing BABIES, especially with religious right organizations able to wallpaper the country with pictures of cute foetuses at will. (They’re not short of funds, they have strong links with the religious right in the US.)

In 2010 however three women brought a case to the European Court Of Human Rights, which basically told the government that pretending a major women’s rights issue would just sort of somehow go away was not acceptable. And so it did what governments do – commissioned an inquiry to elect a commission to create a report, so weakening their identification with the eventual legislation, and of course delaying the fateful day a little longer.

A little too long for Savita Halappanavar.

The bitter irony for the religious right is that it’s the “Pro-life” amendment they campaigned for back in 1983, in the hope of keeping out a (then) rising tide of liberalism, that makes the antediluvian abortion law unconstitutional – because it describes an equal right to life for the woman¹. They didn’t want any woman’s right to be mentioned of course. They would probably have been happy with the innocent foetus having a prior right to existence over a necessarily sinful adult woman. Relatively sane legislators at least managed to insert this in the process of framing a constitutional amendment bill. But in a horrific case in 1992, the Supreme Court ruled that the suicidal feelings of a pregnant child rape victim constituted a threat to her life, so making that grounds for an abortion.

The religious right saw this as a potential – even deliberate – opening for abortion on demand. Now all a woman would need to do is say she felt a bit low and she’d get an abortion. So they actually campaigned to amend their amendment to explicitly discount suicide as a danger to the woman’s life.

Naturally the populace rejected this. We’ve heard about the judgement of Solomon.

When we rejected it, they tried to introduce it again. We rejected it again.

And you know what makes this all surreal and ridiculous? There is abortion available on demand in Ireland, and has been for decades. Not within Ireland, no. But a twenty minute plane ride away. You can go to Britain² or many other parts of the EU. I don’t claim this doesn’t put significant obstacles in the way, especially of poorer women, but thousands obtain terminations every year. Our bizarrely dated, draconian law prevents hardly any abortions at all.

Not that the religious right hasn’t tried to change this as well. When it was established that a woman in certain circumstances – i.e, she might die – was legally entitled to the abortion she couldn’t legally have here, they campaigned to prevent woman travelling abroad to have abortions, or obtaining information about abortion services in other countries. In a way it’s a shame they didn’t get their way. If women were being given ultrasound scans in the airports, if we had Internet filters to block sites that mention abortion, if adverts were cut out of papers and magazines, then their illiberal ideological madness would have been seen for what it was. We’d probably have abortion on demand here now. The ideological posturing survives because in reality it makes little difference.

Unless of course you are too sick to travel.

Sorry for that excursion through the history of nasty. We now reach the current situation, where things have been finessed with “guidelines” for medical practice – essentially, a life-saving medical procedure that inadvertently kills a foetus is not an abortion. Which seems all quite humane – until you have a situation like Savita Halappanavar’s, where terminating her pregnancy was not an operation necessary to save her life but merely one that would have reduced a hard-to-quantify risk to her life. Now I think a sane person would say that if the foetus cannot survive then there is zero conceptual, never mind moral, reason not to abort. Unfortunately the law as it stands was not created by any sane process.

But as luck would have it, the report I mentioned has just been completed and is about to be published – right into this storm of moral outrage. I am cautiously confident that things will change now.

²Or “the mother” as the amendment calls her, in some quite extraordinarily loaded language.
²Britain rather than the UK advisedly, as in a weird cross-border mirroring, abortion is also illegal in Northern Ireland. Presbyterians seem no more hot on women’s rights than Catholics.

Galway's Vigil for Savita

This evening I stood for an hour in Eyre Square Galway thinking of Savita Halappanavar, an Indian-born dentist who died in hospital here. While investigations are ongoing, it appears that she was refused the termination of an already miscarried pregnancy, a procedure that might have saved her life. There seems little room for doubt that this was an avoidable tragedy caused by our wholly inadequate laws.

This is the hospital I go to when I get sick. Where my mother gets regular check-ups. Where my father was pronounced dead. It is the hospital attached to the University where I study science now, where I once took courses in women’s rights. I’ve always had confidence in it and its staff. But they made decisions here that were not based on medicine, but on a certain doctrinal viewpoint. That is wrong.

If they made an immoral choice though, they made it under the threat of an immoral law. Or we should say an immoral absence of law, thanks to one political leadership after another running scared from its duty to enact legislation clarifying this issue, and despite a Supreme Court judgement that found a blanket ban on abortion unconstitutional twenty years ago.

So what is the legal position on medical abortion in Ireland? Frankly your guess is as good as mine. According to the Constitution:

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.

This seems to suggest that there are circumstances in which a pregnancy can be terminated in order to save a woman’s life, and in practice this can happen. An ectopic pregnancy – the condition where the embryo implants and begins to develop outside the uterus – will be removed without compunction. It would be monstrous to give an embryo which could never survive the same rights as the woman it would inevitably kill.

And yet Savita’s foetus had no hope of survival and the threat to her life, while not certain, was severe. Why was a non-viable pregnancy allowed to cause her unimaginable distress leading almost certainly to her death – were they hoping a miracle would somehow save its life?

No. They did not terminate the pregnancy because they didn’t consider they had the right to. The foetus was a person with an inviolable right to life, so the fact that it was going to die was not morally relevant; you can’t kill people just because they’re going to die soon anyway. Only in circumstances where it was absolutely certain that the continuation of the pregnancy would lead to the woman’s death could they have moved to end it, and outside clear-cut cases like ectopic pregnancy such certainty is of course rare.

So they went instead with the moral – but wholly fictitious – certainty that the foetus was a human being with a right to life that must be respected, and Savita Halappanavar died.

The idea that human life begins at conception is not a scientific fact. Nor is it ancient knowledge – conception was only understood fairly recently. It is a doctrine. We might as easily consider human life to begin with the first breath. (Indeed that used to be the belief.) We might consider that it begins at some point between conception and birth, even that it begins before conception in some spiritual realm. But a foetus is not a baby any more than the separate sperm and ovum is, and to treat it like one is just a doctrinal fantasy. Enforcing that fantasy on real people can only lead to tragedy.