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
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.