Government must act on reality of crisis pregnancy

Mon, Feb 6, 2012, 00:00

OPINION:Twenty years after the infamous X case convulsed Irish society, the need for legislation on the issue of abortion is as critical as ever, writes IVANA BACIK

TODAY MARKS the 20th anniversary of the “X case”. On February 6th, 1992, a court order was granted to prevent a 14-year-old rape victim from travelling to England for an abortion. The order was based on Article 40.3.3 of the Constitution – the 1983 amendment which equates the right to life of the “unborn” with that of the “mother”.

In granting the order, Judge Costello accepted the young girl in the case, X, was suicidal, but in a judgment devoid of compassion, he said the risk she would kill herself was not sufficient to override the right to life of “the unborn”.

This decision was a direct consequence of the extraordinary elevation of the right to life of the undefined “unborn” in 1983. But abortion was banned in Ireland long before the constitutional amendment. It is a criminal offence under 1861 legislation, carrying a maximum penalty of life imprisonment.

This ban was not enough for militant anti-abortion groups such as the Society for the Protection of the Unborn Child (Spuc). Throughout the 1980s, they used the constitutional amendment in the courts to close down women’s counselling centres on the basis that providing information on abortion breached the rights of the unborn.

Students’ unions were the next targets. As president of Trinity College Students’ Union in 1989, I and others gave phone numbers of English clinics to women who had crisis pregnancies who contacted us, often in great distress. For this we were taken to court and threatened with prison by Spuc.

A few years after these abortion information cases, the X case halted the momentum behind Spuc and their allies. It marked a turning-point in public opinion by exposing the human story behind the abstract legal, moral and theological arguments that had dominated public discourse on abortion for years. For the first time, the case forced people all over Ireland to confront their own abstract morality with the direct question: “What if this were my daughter?”

For most people, there was no doubt about the answer, along with popular outrage that any young girl in X’s position could be forced to continue with an unwanted pregnancy against her own wishes and those of her parents. My own Catholic grandmother was among the many thousands who took to the streets in protest at Judge Costello’s order.

As public anger mounted, the Supreme Court reversed the decision in early March 1992. The majority of the court decided that because X was suicidal, the continuance of the pregnancy posed a “real and substantial risk” to her life, and that her right to life should prevail. X was able to go to England, although she could legally have had an abortion in Ireland under the Supreme Court test.

The test also meant a woman whose pregnancy was not life-threatening could be prevented from travelling abroad for abortion. To deal with this outcome, three further constitutional amendments were put forward in November 1992. One allowed freedom of information and enabled us students, finally, to win our case. The second allowed the right to travel.

A third referendum sought to overturn the X case outcome by ruling out suicide risk as a ground for abortion, but was defeated. In 2002, a cowardly government caved in again to pressure from anti-abortion groups and held another referendum to rule out suicide risk. Again, thankfully, this was defeated.

Throughout this time, and despite five constitutional referendums, women have continued to travel in their thousands for abortion. In 2010, a total of 4,402 women made the journey – an average of 12 every day. Since abortion was legalised in England in 1967, more than 100,000 Irish women have had abortions abroad.

For all of us, this figure includes our sisters, mothers, daughters, friends and colleagues. The pregnancies threatened the health of some of these, or were not viable. Other females were victims of rape or sexual abuse. Many more have simply been unable to cope with pregnancy due to individual circumstances. Yet, Irish law denies abortion to women in all these cases – and no government until now has made any attempt to meet their health needs.

Action is finally being taken. In December 2010, the European Court of Human Rights gave judgment in a case supported by the Irish Family Planning Association and taken by three women against Ireland (the ABC case). The court ruled that Irish law breached the rights of C, a cancer patient whose pregnancy posed a serious risk to her health. The programme for government of February 2011 committed to the establishment of an expert group to recommend how best to address the ABC judgment. This group, chaired by Judge Seán Ryan, is due to report this June.

Some anti-choice campaigners have used the establishment of the expert group as an opportunity to question the X case judgment, and to argue against the introduction of legislation. However, any objective reading of the European Court judgment must acknowledge that legislation is necessary to clarify the law for women such as “C” by providing for the circumstances in which life-saving abortion may be performed.

Legislation would provide essential clarity for doctors, although the Irish Medical Council guide to professional conduct already gives appropriate guidance in line with the X case. It recommends doctors undertake a full assessment of suicide risk in light of clinical research, and that termination of pregnancy may be required in rare cases to protect a mother’s life where the baby cannot survive. Legislation for the X case test would also have clear public support. Not only have the people voted twice in referendums to uphold suicide risk as a ground for abortion – but recent opinion polls show that increasing numbers are in favour of legalising abortion, even on grounds other than risk to life.

In 2010, 60 per cent of those polled supported legalisation. The disproportionate influence of the anti-abortion campaign has clearly waned. Once the expert group has reported, this Government must act swiftly to confront the reality of crisis pregnancy in Ireland and legislate. Twenty years after the X case, we can wait no longer.

Ivana Bacik is a Labour Party Senator representing TCD graduates

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