Fintan O'Toole: Ireland's abortion regime is too cruel even for Trump

Eighth Amendment law about locking up women and doctors really is step too far

Is there no line Donald Trump would not cross? Actually, there is one. It's not incinerating an entire country, as he threatened to do to North Korea, or incinerating the entire planet by undermining the Paris accord on climate change. It's not smearing an entire nation, as he did by calling Mexicans rapists. It's not cosying up to neo-Nazis by claiming that there are some "very fine people" among them. It's not even republishing to his 40 million Twitter followers anti-Islamic propaganda videos from a British neo-Nazi group. Trump has crossed all of these lines and so many more and never felt that he had gone too far and ought to retreat.

Yet even Trump did acknowledge one step beyond acceptability. What position could possibly be so extreme, so indefensible, that the arch-provocateur had to disavow it? It was support for Ireland’s current abortion regime and in particular for the idea that women should be punished for having abortions. Our current laws are too excessive, too cruel, too irrational even for Donald Trump. And we are not talking about laws that are some freakish holdover from the dark past. What even Trump could not stand over is what our parliament laid down in 2013 – acting on the imperatives of the Eighth Amendment to the Constitution.

Danger of the question

On March 30th, 2016, Trump, then a candidate in the Republican primaries, held a town hall-style meeting in Green Bay, Wisconsin. The host, Chris Matthews, asked him about his position on abortion and whether women who had abortions should be punished by law. Trump sensed the danger of the question and made valiant efforts to avoid it. But Matthews eventually pinned him down:

Matthews: Do you believe in punishment for abortion, yes or no as a principle?


Trump: The answer is that there has to be some form of punishment.

Matthews: For the woman.

Trump: Yeah, there has to be some form.

Matthews: Ten cents? Ten years? What?

Trump: I don’t know. That I don’t know. That I don’t know.

Matthews: Why not?

Trump: I don’t know.

Matthews: You take positions on everything else.

Trump: Because I don’t want to – I frankly, I do take positions on everything else. It’s a very complicated position.

It's worth noting that Trump didn't go very far across the line. He didn't say, for example, what the Protection of Life During Pregnancy Act passed by the Oireachtas in 2013 says: that a woman who has an abortion, or any doctor who assists her, or any member or officer of an organisation that helps her is liable on conviction to a prison sentence of 14 years. (In Northern Ireland, the potential sentence is life imprisonment.) He merely suggested "some form of punishment".

But even so, Trump recognised that this position was indefensible. Within hours, he issued a recantation: “The doctor or any other person performing this illegal act upon a woman would be held legally responsible, not the woman.” In May, he went further, telling the New York Times magazine: “I didn’t mean punishment for women like prison. I’m saying women punish themselves. I didn’t want people to think in terms of ‘prison’ punishment. And because of that I walked it back.”

Heavy punishment

Even after Trump effectively acknowledged that imprisoning women for having abortions is beyond the Pale, the Dáil voted overwhelmingly to keep this threat in Irish law. In March, Bríd Smith proposed a Private Members' Bill to replace the 14-year sentence with a token €1 fine. Speaking for the Government, Simon Harris said that this must be rejected because the advice of the Attorney General is that the Eighth Amendment demands a heavy punishment: "If the State is to fulfil its obligations under article 40.3.3, this prohibition must be backed up by an effective sanction that reflects the seriousness of the offence."

And so, on March 9th in the Year of our Lord 2017, 80 TDs voted to retain the sanction of 14 years in prison for a woman who takes two pills to end her pregnancy. Thirteen of them were women. And in a sense they were right. This is indeed the logic of the Eighth Amendment and its supporters: if abortion really is murder, why should women not be punished and punished most severely?

Yes, the Irish regime threatens women and their doctors with penalties more severe than those generally imposed on child rapists. But why should anyone be embarrassed about this if they believe what they purport to believe? Just because it is a position too fanatical and too crude for Donald Trump, why should they shy away from the legal imperatives of the amendment they levered into the Constitution in 1983? If abortion is murder, prosecute and punish it as such.

But if you don’t want to do that, it is surely because your decent human instincts are telling you that you’re on the wrong track. It is, after all, entirely possible to be utterly opposed to abortion for moral and religious reasons and at the same to think that it is not an area for the criminal law, still less for the Constitution. If it’s too extreme for Trump, it’s too extreme for Ireland.