Banning or limiting access to abortion is about ‘judging and controlling women’, says US lawyer

Whether abortion is banned outright in a country, or access is restricted through time limits or “cooling-off” periods, it boils down to “judging and controlling women”, according to US attorney Julie Kay.

Her involvement in campaigns for abortion rights in Ireland and the US have convinced Kay that reproductive freedom is fragile and the best way to advance it is through a broad human rights campaign targeting gender, race and economic inequity.

“The human rights approach works in many ways because that fundamental decision whether or not to have a child is a human rights issue, what factors into that decision is can I support that child, do I have access to food security, housing security, education?”

Kay, who continues to advocate for reproductive rights in the US, was part of a legal team that challenged Ireland’s abortion laws in the A, B and C v Ireland case before the European Court of Human Rights (ECtHR), resulting in a 2010 judgment requiring Ireland to enact laws permitting abortion where the woman’s life was at risk.

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Her book, Controlling Women: What We Must Do Now To Save Reproductive Freedom, co-authored with fellow campaigner Kathryn Kolbert and published in 2021, accurately predicted the “ultraconservative” majority on the US Supreme Court would overturn the 1973 landmark Roe v Wade decision legalising abortion across United States. In the Dobbs v Jackson decision last June, the court overruled Roe, returning to individual states the power to regulate any aspect of abortion not protected by federal law.

Based on lessons learned from reproductive rights campaigns in Ireland, United States and elsewhere, Controlling Women argues vital reproductive freedoms “cannot be allowed to twist and turn on the vagaries of legal decisions or the whims of Supreme Court justices” or solely depend, as did Roe, on concepts of privacy. Instead, the authors set out a detailed blueprint for the formation of broad-based coalitions to use multiple strategies to advance gender equity alongside other human rights.

New York-based Kay, whose husband emigrated from Ireland with his parents as a child, spoke to The Irish Times during a recent family visit here.

That came as barrister Marie O’Shea was finalising her review of the abortion regime introduced in 2019 following repeal of the Eighth Amendment. Published this week, the review found abortion services in some counties were “untenable” and recommended sweeping changes, including ending the mandatory three-day waiting period to access termination medication.

According to Kay, there are some “real concerns” about access to abortion here and she describes the 12-week limitation period as “judgmental”. “The kind of model of the conscience clause and the waiting period and the baggage they carry with them, it’s still about controlling women.”

I don’t think you can separate gender inequality from race inequality from economic inequality

While “always careful as the American not to come in and say what Ireland needs”, there is strength in multi-issue coalitions, she believes. “When you look at things like global migration and the economic struggles and the housing shortages and those kinds of things, they are interrelated, particularly in capitalist societies with that shared language and shared sort of value system.

“It’s hard, look at the campaigns here for marriage equality and abortion rights, it takes time but there is strength in numbers and in having a world view. I don’t think you can separate gender inequality from race inequality from economic inequality.”

After coming here in 2000 with her husband for a time, Kay was hired by the Irish Family Planning Association (IFPA) as a legal researcher on a European-funded project examining gender rights and discrimination.

Ireland in 2000 was still very divided over the X case, concerning a teenage girl pregnant after rape whom the State sought to prevent travelling for an abortion. Despite a 1992 Supreme Court ruling allowing abortion when necessary to save a pregnant woman’s life, and the court urging the State to legislate to enable abortion in life-saving circumstances, no legislation had been advanced.

“I was really surprised by the whole set-up around abortion rights and access in Ireland,” says Kay. “On the one hand, there was a very cruel and unforgiving constitutional provision [the Eighth Amendment] but, on the other hand, people were facilitating the Irish solution to the Irish problem and helping women to travel.

“That was my introduction to how things function in Ireland sometimes, that there’s a real generosity of spirit and a real ‘get the job done’ attitude but don’t publicly talk about it.”

Having trained as an American lawyer to be “proactive” around abortion rights, she started looking at the ECtHR and “came up with the idea to bring a lawsuit because that is what we do in the United States”.

Working with activists, supportive lawyers and the IFPA, it was decided to have three women at the centre of the litigation to present different situations. Taking the case directly to the ECtHR was “to make the lawsuit feasible” given the “quite sobering” fees in the Irish courts.

The ECtHR found against A and B on the basis that Irish law prohibiting abortion except where there was a risk to the life of the mother did not violate article 8 of the European Convention on Human Rights. In the case of C, a cancer survivor whose doctors had refused to tell her whether carrying her pregnancy to term would present risk to her life or the foetus, it held her article 8 rights were violated because Ireland had not provided a mechanism by which she could determine whether she could legally obtain an abortion when she believed her life might be at risk.

“Litigation was a way for the ECtHR to solidly use a human rights framework, to say this is not some deep philosophical debate,” says Kay. “It is not about my religious views versus yours, it is about human rights and bodily autonomy and the ability to be able to make choices about whether, when and with who to have a family, or not and how to raise those children.”

When you hold a woman equal to a pregnancy, that is unworkable

The C ruling was “a pretty direct order” to Ireland to enact legislation creating access to life-saving abortion but none was in place when Savita Halappanavar died in hospital in late 2012 after her request for a life-saving abortion was denied. That led to widespread protests and the Protection of Life During Pregnancy Act was passed the following year.

In Ireland in 2000, it was clear, “as it is becoming very clear in the US today, that when you criminalise abortion it has added effects on a whole host of maternal healthcare, on miscarriage management such as Savita, on IVF, or even access to contraception. When you hold a woman equal to a pregnancy, that is unworkable.”

Kay, who began her legal career with the Centre for Reproductive Rights (CRR) in New York, regards litigation as an effective tool for promoting reproductive rights but stresses litigation alone is not enough. “It’s a tree falling in the forest or in the courtroom if you don’t have advocacy in partnership, if you’re not talking to the community.”

The overturning of Roe v Wade has been seized on by the anti-abortion lobby in the US but many women are determined to fight back, says Kay. “The reaction is outrage, ‘how can they do this to us, it isn’t fair’.”

Polls suggest 60-70 per cent of Americans support the Roe v Wade framework and that number has been growing since it was overturned, she notes. Travel to a US state which permits abortion, or less restricted abortion, is being put forward as the solution, “the American solution to the American problem”.

“What I bring back from Ireland is a deep knowledge of how difficult and harmful travel is and we’re seeing that same thing in the US now. The delay, the stigma, the gross inequality depending on resources, whether you’re a teenager, a low-income woman, a black woman, if you’re living in a rural area or have any kind of physical impairment of your mobility. As we’re looking for solutions, we really need to see this as a combination of race and gender and economic inequity issues.”

The case made by Controlling Women is that the way forward is to build a broad coalition to campaign for human rights, including reproductive freedom. The plan of action includes mass protest; pushing for rights referendums; litigation; organising voter registration; lobbying politicians and supporting those prepared to work on the human rights agenda.

I don’t know where Ireland would be if they had not decided three years ago that in three years to have the review because it is very easy to have these hollow rights

Securing a gender rights amendment to the US Constitution is a key element “so that no matter who comes into the Supreme Court and the federal courts, they are looking at being prescribed by the constitution to do away with gender discrimination”.

“We have to get away from the ‘it’s a baby, it’s not’, ‘it’s religious, it’s not’, ‘when does life begin’,” insists Kay. “We’re not going to ever figure that out and we don’t have to, it’s been a winning issue for a powerful few for a long time in the US, in Ireland and globally, it’s been a way of politicians giving something to single-issue voters who are religiously motivated or have traditional ideas of what gender is but that hasn’t represented the majority writ large. It certainly doesn’t meet people’s calculations in their own lives and the lives of their loved ones, we simply would not see the numbers we do if people really felt that way.

“I’m an optimist, it always takes longer than I think and there’s a lot of harm to a lot of people’s lives along the way, but I think people believe in human rights, they want them for themselves and for other people, and I’ve seen the progress here and how you pick up momentum once things start moving but I’ve also seen the apathy and the complacency. I don’t know where Ireland would be if they had not decided three years ago that in three years to have the review because it is very easy to have these hollow rights.

“We had that in the US, we all had this idea that Roe v Wade was fine and the reason I wanted to write this book was because it wasn’t fine, and it was getting worse. Sadly, it wasn’t hard to predict what would happen, going back to what about abortion is about, it’s about control.”