Abortion law: what comes next?

The Protection of Life During Pregnancy Bill has passed through the Oireachtas, but the scope of the legislation is likely to be challenged


Abortion legislation is, just about, on the statute books. The Protection of Life During Pregnancy Bill has completed its tumultuous passage through the Oireachtas and President Michael D Higgins is consulting the Council of State about the Bill before considering sending it to the Supreme Court.

For the first time in the history of the State, the debate is no longer about whether abortion should be legal, but about the circumstances in which it should be. The legislation represents a defeat for the anti-abortion lobby, which had reached for every weapon in its arsenal over the past nine months to stop it.

It is, however, the most restrictive piece of abortion legislation in Europe. It will criminalise any woman, or girl, who procures an abortion outside the confines of the legislation, punishing her and anyone who assists her with up to 14 years in prison.

It will not allow for abortion where a woman is pregnant as a result of rape or incest or where she is carrying a foetus with a fatal abnormality. It differentiates between a physical and a mental threat to a woman’s life, and will compel her, if she is suicidal, to submit to assessment by up to six doctors. It will not protect her health where the pregnancy threatens it, even if it threatens lifelong injury.

And at no point may the woman exercise choice.

This legislation is unlikely to be the end of the matter. Speaking this week, Minister for Justice Alan Shatter described as a “great cruelty” the fact that women carrying foetuses with fatal abnormalities could not have an abortion here and as an “unacceptable cruelty” that women pregnant as a result of rape couldn’t. He pointed to the Constitution as the reason and suggested a future Government would have to put Article 40.3.3 to the people to consider its repeal.

Since 1983, Article 40.3.3 “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 30th anniversary of this, the Eighth Amendment to the Constitution, falls in the autumn – it was signed into law on October 7th, 1983, having been passed by a two to one majority in a referendum on September 7th 1983 – and plans are underway by numerous pro-choice groups for a campaign to get it repealed.

If experience tells us anything however, it is less the campaigning, mostly by women, that forces political movement on the abortion issue in this country; it is more the highly charged tragedies suffered by women. Arguably, without the account by Praveen Halappanavar, last November 14th, of the circumstances of the death of his wife, Savita, in Galway University Hospital a fortnight before, the new legislation would not have reached this stage.

And so it will almost certainly be that another woman’s private tragedy will have to be played out publicly before the “great cruelties” of this legislation will even begin to be addressed.

Although it is impossible to predict where or when such cases might come to light – the most recent story, published in this newspaper on Monday, concerned the death, in January 2012, of a woman in London following an abortion – people who work in the area of women’s health point to two areas from where the next case may could emerge.

Legally it is almost inevitable that a woman with a diagnosis of a fatal foetal abnormality will challenge the legislation in the courts. Medically, and more worryingly, it is thought to be but a matter of time before a woman attempting a home, or so-called back-room abortion, gets into serious difficulty.

Given the criminal sanctions she may face if prosecuted, where will she go for help?

Home-abortion kits containing the drugs Mifepristone and Misoprostol, can be purchased online for between €50 and €150; this is far cheaper than travelling to a clinic abroad. Taken under medical supervision, these drugs are perfectly safe but the woman, who could be very young, must be certain of her dates, she must take them correctly (several have to be taken at specific intervals) and she must be certain that what she is taking is what she is told she is taking.

She will then have to endure prolonged and sometimes extreme blood loss and a lot of pain as she “labours” to expel the pregnancy.

According to the Irish Medicines Board, since the beginning of the year 259 tablets have been seized by Customs, compared with 487 last year and 635 in 2011. However, thousands more are likely to be getting past Customs either because those selling them are changing the packaging regularly to avoid detection or because the women are having them sent to contacts in Northern Ireland.

Either way, the Irish Family Planning Association is seeing an increasing number of women calling in difficulty, having taken the drugs at home alone. In three cases earlier this year the abortions had not completed at home and required professional medical attention.

Alison Begas, the chief executive of the Well Woman Centres, is particularly worried about what could happen. “I have a great fear that some woman or girl will be at home, haemorrhaging badly too afraid to get help.”

She hopes the atmosphere has changed sufficiently over the past year so that a woman dealing with a crisis pregnancy would know public opinion was sympathetic to her, and that should she get into difficulty at home she should get help. But, she acknowledges, it would take just one conscientiously objecting midwife or obstetrician to report a woman to the authorities to set a prosecution in motion.

The three Dublin maternity hospitals when asked how they would respond to a woman presenting after a home abortion said their priority would be her welfare. Dr Sam Coulter Smith, master of the Rotunda, when asked whether the hospital would report such a woman to the authorities said: “No”. The law has yet to be tested on this.

The Terminations for Medical Reasons (TFMR) group, which campaigned for fatal foetal abnormalities to be included in the new legislation, believes achieving this will require that a pregnant woman challenges the State initially in the High Court.

A Dublin woman, Deirdre Conroy, took the State to the European Court of Human Rights in 2005 because she had had to travel to England for an abortion. After one of the twins she had been carrying died in utero, the surviving twin was diagnosed with a fatal abnormality. The State argued that the Irish courts were “unlikely” to interpret Article 40.3.3 “with remorseless logic particularly when the facts were exceptional” and that there was “at least a tenable” argument that an unborn with a fatal abnormality would not attract the protection of Article 40.3.3. She might have won had she gone to court in Ireland, said the State. The ECHR accepted the State’s contention so found against her.

James Burke of TMFR says the group is “totally disappointed we weren’t included in this legislation”. The group has a Facebook page and is being contacted “all this time” by people who’ve just had a diagnosis and just need some support.

“If any woman who contacts us and feels strong enough and wants to go to court to challenge this, we are ready to support her,” he says.

It is 21 years since the late Justice Niall McCarthy, in his ruling on the X case, excoriated the legislature for its failure to legislate on foot of the 1983 amendment.

“What are pregnant women to do?,” he demanded. “What are the parents of a pregnant girl underage to do? What are the medical profession to do? They have no guidelines save what may be gleaned from the judgements in this case. What additional considerations are there? Is the victim of rape, statutory or otherwise, or the victim of incest, finding herself pregnant, to be assessed in a manner different from others? The Amendment, born of public disquiet, historically divisive of our people, guaranteeing in its laws to respect and by its laws to defend the right to life of the unborn, remains bare of legislative direction.”

Some legislative direction there now is, but this law remains silent on rape, on incest and on fatal foetal abnormalities.

Over again to women. And to the courts.

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