Women will still face injustice even if abortion law introduced

The expert group report on abortion arose from a complaint to the European Court of Human Rights in 2005 by three women, alleging that restrictions on abortion in Ireland were in breach of their human rights.

One of the women was in acute distress. She lived in poverty and had four children already, all of whom were in care. She was attempting to reunite her family when she became pregnant accidentally. She felt she could not possibly cope with a fifth child, nor with the pregnancy. She could not get an abortion in Ireland, where, irrespective of her circumstances, she risked penal servitude for life. She went to Britain, where she had an abortion.

Another of the three women had been in treatment for cancer for three years and she too became pregnant unintentionally. Medical tests were contraindicated during the early stage of her pregnancy. She was unable to get clear medical advice and feared that her pregnancy would lead to a recurrence of her cancer. She, too, felt obliged to go to Britain for an abortion. The third case was less clear-cut.

The third and first cases were dismissed on technical grounds but on the case concerning the woman with cancer, it was found that the absence of clear guidelines in Ireland for when abortion was permissible was a breach of human rights. It was this ruling which led to the expert group report published yesterday.

Control

The prohibition of abortion essentially compels women to give their bodies for the sustenance of other human beings (yes innocent and very vulnerable human beings), independently of their wishes and needs, and independently even of whether they consented to becoming pregnant.

The most striking aspect of the report is the chronology of how male-dominated institutions or committees (parliaments, courts, expert groups) have devised ways to control women in the use of their bodies. The Westminster parliament, then exclusively male, passed the Offences Against the Persons Act in 1861 (151 years ago) making it an offence, punishable by penal servitude for life, to end a pregnancy. This Act remains in force in Ireland today and successive Irish parliaments have failed or refused to amend it.

In the Health (Family Planning) Act of 1979, the 1861 prohibition on abortion was reiterated. Then both Garret FitzGerald and Charlie Haughey opportunistically acceded to a lobby group to incorporate the legislative ban into the Constitution.

There followed cases in which the Supreme Court imposed bans, in 1986 and 1989, on providing information here on abortion services elsewhere, or information encouraging or facilitating abortion. Ireland got into a tangle at EU level in 1992, first by demanding a protocol to the Treaty on the European Union that nothing in EU law would interfere with the laws on abortion in Ireland. Then, a few months later, after the treaty had been agreed, it issued a meaningless declaration, stating essentially that the protocol didn’t really mean what it said.

The latter embarrassment arose from the X case, also in 1992, in which the Supreme Court found that abortion was permissible here where there was a substantial threat to the life of the mother arising from her pregnancy, including a threat of suicide. A second referendum in late 1992 defeated a proposed amendment which would have removed the threat of suicide as grounds for abortion but approved a right to information on abortion legally available elsewhere, and a right to travel for such an abortion.

The then Fianna Fáil government promised legislation to clarify when abortion was permissible but funked it. Instead, a constitutional review group was established: it reported in 1996, recommending legislation, but the then Fine Gael-Labour government funked it.

There was a Green Paper on abortion in 1999. All that came of that was an Oireachtas committee examination of options. That committee came up with a series of proposals, which led to the establishment of a ministerial subcommittee, which came to nothing. There was a third referendum on abortion in 2002, which again sought to remove the threat of suicide as grounds for abortion but that too was rejected by the electorate.

Legislation

The just published expert group (for once comprising a majority of women) report recommends more or less what was previously recommended and it is likely this time there will be legislation. But the fundamental injustice will persist.

Women in dire circumstances will continue to be threatened with legal consequences if they undergo a termination of their pregnancy here. And the seriously ill will be forced to travel abroad for an abortion if their pregnancy might interfere with life-saving treatment.

Incidentally, tragedies such as that of Savita Halappanavar will be likely to occur again. Because there was not a substantial threat to her life when she sought a termination of her pregnancy – even though the unborn baby had no chance of surviving – there were not, and will not be, legal grounds for such a termination.