Fintan O’Toole: Is a woman who has an abortion as depraved as a child rapist?

Last week, in the Central Criminal Court, a 66-year-old man was sentenced to 14 years in prison. He had inflicted a "catalogue of horror" on his son, from the age of six, including multiple rapes and confining the little boy in a closed wooden box. It was a literally unspeakable set of crimes – the boy wrote in his heartbreakingly eloquent statement that "Words have not even been invented yet for what my dad has done to me."

In his submission, the father’s defence counsel pointed out that the effective life sentence of 14 years proposed for his client is reserved for only the most exceptional cases “involving particular violence or depravity”.

Except it isn’t. The Protection of Life During Pregnancy Act, passed by our parliament as recently as 2013, states that “It shall be an offence to intentionally destroy unborn human life. A person who is guilty of an offence under this section shall be liable on indictment to a fine or imprisonment for a term not exceeding 14 years, or both.”

This applies to a woman who buys abortion pills online, to a doctor who helps her, to a friend who collects the pills when they're posted to an address in Northern Ireland. And any "person who was a director, manager, secretary or other officer" of an organisation, voluntary or professional, who is guilty of "consent or connivance" in any of this is equally liable to up to 14 years in prison. By law – and law passed just three years ago – taking an abortion pill or helping a pregnant woman get a pill is just as depraved as repeatedly raping a six-year-old child.

Toxic amendment

And this is one of the reasons why the Eighth Amendment to the Constitution is so toxic. Aside from everything else, it undermines respect for the law. Beyond a tiny circle of fanatics, there is no one who sees a moral equivalence between crimes of extreme "violence or depravity" like child rape and the termination of a pregnancy in its early stages. And precisely because this equivalence is so grotesque, we have a nod-and-wink law. In defending the potential 14-year sentence for having an abortion when the 2013 bill was being debated, the responsible minister, James Reilly, said: "There is no intention under this section that a woman would be sentenced to 14 years in prison, but it is there in the law."

It was as open as that: we are about to pass a law but sure don’t be fretting yourselves – it’s not going to be enforced at all at all. Leprechaun lawmaking at its finest.

To calibrate just how much of a show we are making of ourselves, consider something that is scarcely discernible: Donald Trump’s threshold of embarrassment. In March, Trump said in a TV interview that since he is now in favour of a ban on abortion, “there has to be some form of punishment” for women who break the ban. It is worth noting that the most extreme hypothetical punishment put to him by the interviewer was 10 years in prison – a substantially lesser sentence than the one actually written into Irish law. Trump replied that he did not know what the punishment would be.

Nevertheless his remarks were regarded as a disastrous gaffe – even by the anti-abortion movement he was trying to suck up to. The extreme religious conservative Ted Cruz denounced Trump's statement: "Of course we shouldn't be talking about punishing women."  The sense that he had made an idiot of himself was so universal that Trump quickly retracted his statement.

Punitive proposition

But a punitive proposition too unhinged even for Donald Trump is enshrined in our laws. A notion that goes too far for the fanatical anti-abortion movement in the US is on our statute books. A view that seems beyond the pale even to the egregious Ted Cruz is one that our police and courts are supposed to act on. Out there in the far distance, beyond the most outrageous blowhard's most outlandish conception of acceptable speech is section 22 of the Protection of Life During Pregnancy Act of 2013. The majesty of Irish law is a Donald Trump gaffe.

And to be fair to those who framed and voted for this law, they did so on the basis of advice from the attorney general that a provision for a punishment of this kind is mandatory under the Eighth Amendment. It’s the amendment that pushes our laws into a position so far-fetched that it becomes a mockery of itself, so grotesque that it collapses into absurdity.

As The Irish Times reported yesterday, more than 5,600 women in Ireland tried to buy abortion pills online over a five-year period from one Dutch-based supplier alone. If you believe each of those women and the friends who helped them or any organisation that colluded with or consented to their decision is as morally depraved and therefore as worthy of extreme punishment as a child rapist or a murderer, then support the Eighth Amendment. If not, then apply the Trump test – if a proposition is too much for the worst bigots and loudmouths to defend, get it to hell out of our constitution.