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Ireland and abortion: the facts in 2014

TheJournal.ie takes a look at the current laws, constitutional rights, past legal challenges and the situation in other jurisdictions.

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Updated 23 August, 8.30am

IT IS HARD to strip away the emotion which pervades the debate about abortion, making it one of the most divisive issues in Ireland of the past 25 years.

The legalities surrounding abortion services were propelled into the spotlight in 1992 when the X Case was heard in both the High Court and the Supreme Court.

Usually not a country of protesters, Ireland saw thousands of people take to the streets divided into two camps – pro-life/anti-abortion and pro-choice.

The Supreme Court ruling eventually led to multiple constitutional referendums, numerous expert groups and further cases in the European Court of Human Rights.

Last year, the government of the day legislated for the 1992 Supreme Court ruling, a move avoided by all of its predecessors.

But far from putting the debate to bed, the Protection of Life During Pregnancy Act has kick-started the arguments again. Less than a year since its implementation, the new laws have been criticised by both pro-choice and pro-life groups.

The new uproar comes after a young, asylum-seeking woman who said she was raped and suicidal had her pregnancy terminated with a Caesarean section. The baby, born at just 25 weeks, is said to be doing well in hospital.

TheJournal.ie has been following the debate from all angles, featuring columns from both sides. However, the peculiarities of certain cases and various legal wranglings can confuse the matter and lead to much misinformation being spread. Here we aim to provide details of the legal aspects of abortion in Ireland in a dispassionate and factual manner.

The legal aspects

First off, abortion is illegal in Ireland.

The only exception is when there is a real and substantial risk to the life of the mother. This includes a risk arising from a threat of suicide, which was initially allowed for under legal precedent set by a 1992 Supreme Court ruling in what was widely known as the X Case. In 2013, the government legislated for this ruling with the Protection of Life During Pregnancy Act.

In the subsequent guidance for medical practitioners, hospital doctors are told to fulfill a number of requirements before certifying an abortion. In the case of a physical illness to the pregnant woman, two doctors must sign off on a termination, jointly certifying that there is a real and substantial risk of loss of her life and that this risk can only be averted by a termination of pregnancy.

They both also need to confirm that they have had, in good faith, “regard to the need to preserve unborn human life where practical”.

In the case where there is a risk to life because of suicidal intent, more requirements are necessitated by law.

Three doctors – two psychiatrists and an obstetrician – must examine the woman and jointly decide that there is a risk to her life that can only be averted by a termination of the pregnancy, having regard to the need to preserve unborn human life.

One of the psychiatrists is seen first. If he/she believes the woman’s condition “satisfies the requirement of the Act”, then she will see the second psychiatrist who must agree with the first if an obstetrician is to become involved.

The Health Service Executive said it can ensure this process happens in a “timely manner”.

It is illegal in Ireland to have an abortion in the case of lethal foetal abnormality. It is also illegal to carry out an abortion in cases of rape and incest.

Abortion information and travelling abroad

It is completely legal to provide information to people in Ireland about abortion services abroad. However, this is subject to strict conditions as set out in the 1995 Abortion Information Act. The Act does not permit just anyone to give information on abortion and lays down rules for those people or agencies who do provide it.

Names and addresses of abortion clinics abroad may be made available by doctors, specific agencies or individual counsellors. The rules apply to all providers of information but a distinction is made between information that is provided for the general public and information that is made available directly to a pregnant woman by a doctor or an advisory service.

It is also legal for women to travel abroad to avail of abortion services. A doctor in Ireland then has a duty to provide care, support and follow-up services for those women on their return.

However, it is illegal for a doctor or a one-to-one counsellor to encourage or advocate an abortion in individual cases. It is also unlawful for a doctor to make an appointment with a clinic on behalf of a pregnant woman.

Figures released by the Department of Health in the UK showed that more than 3,500 women gave Irish addresses when attending clinics in England and Wales to have terminations during 2010.

Referendums

On 7 October 1983, the Eighth Amendment of the Constitution was passed by the Irish electorate. It provided for the State’s acknowledgement of the right to life of the unborn with equal regard to the right to life of the mother.

It effectively brought in a constitutional ban on abortion ever being legalised in Ireland. It ensured that any changes to the legal status of abortions (for any reason) would have to be put to the people and could not simply be completed at Government level.

Ireland has never voted on whether abortion (on demand) should be introduced in the State.

Current arrangements around abortion services in Ireland stem not only from the Supreme Court ruling in the X Case but also from subsequent referendums.

Ireland has never voted on whether abortion (on demand) should be introduced in the State.

The electorate has voted on the right to travel, the right to information and whether or not to repeal the Supreme Court judgement in order to disqualify the risk of suicide as a grounds for an abortion.

On 25 November 1992, the Government put forward three possible amendments to the Constitution in the first abortion referendum after the X Case.

The people of Ireland voted to allow for the freedom to travel outside the State for an abortion. The amendment covering the right to obtain or make available information on abortion services abroad was also passed.

The third question on the ballot paper, the Twelfth Amendment, proposed to legislate for legal abortions. However, it said that the risk of suicide was not sufficient grounds to allow for such a legal abortion.

It shall be unlawful to terminate the life of an unborn unless such termination is necessary to save the life, as distinct from the health, of the mother where there is an illness or disorder of the mother giving rise to a real and substantial risk to her life, not being a risk of self-destruction.

This proposal, which would have seen the ruling in the X Case rolled back, was rejected by the electorate.

As a result, the status quo remained – that is, terminations are allowed where there is a real and substantial risk to the life of the mother, including the risk of suicide.

A similar amendment was put to the public again in 2002. Once more, it was rejected (this time marginally and the turnout at the polls was much smaller than in previous abortion referendums). If passed, the change to the Constitution would also have introduced new penalties of up to 12 years in prison for anyone who performed an unlawful abortion.

Legal cases taken

The landmark X Case came in 1992 after a 14-year-old girl became pregnant after being raped by a man known well to her family. The victim and her parents decided to travel to the UK to undergo an abortion.

The family informed the Gardaí of their plans and asked whether the foetus could be tested after it was aborted to provide proof of the paternity of the accused in the rape case. After being asked his advice on the matter, Attorney General Harry Whelehan obtained an interim injunction to stop the termination in order to protect the Constitution.

The High Court upheld the injunction but an appeal to the Supreme Court was successful and Miss X was granted leave to travel for a termination. The presiding judge deemed that the risk of life to the girl was not less than the danger to the right of life of the unborn.

Just five years later, a similar case arose when a 13-year-old girl, who became known as Miss C, became pregnant after being raped. She was taken into the care of the Eastern Health Board, and requested an abortion. The EHB was granted an order to allow for an abortion abroad but this was challenged by Miss C’s parents.

The High Court found that she was entitled to a lawful abortion here on the grounds that her life was at risk because she was suicidal and that risk would increase as her pregnancy advanced. Despite being legally granted an abortion in Ireland, the health board brought Miss C to the UK for the termination.

The case of D versus Ireland was heard in the European Court of Human Rights in September 2005 with Miss D claiming her human rights were violated because of the lack of abortion services here. Her baby had been diagnosed with foetal abnormalities so severe it could not live outside the womb.

The case was dismissed after the court ruled that the aggrieved individual had not brought an action before the Irish courts, thus failing to exhaust all domestic avenues open to her.

Oddly, the Irish State argued that if she had brought the case to the domestic courts, she may have been successful. There have been no test cases of this since.

The most recent legal challenge to Ireland’s abortion laws came in the A, B and C versus Ireland case at the European Court of Human Rights in 2010. Taking the case, three women said their rights had been violated because they were forced to travel abroad for terminations. The court found that Ireland had breached C’s constitutional right to a lawful abortion in Ireland.

C had a rare form of cancer and when she discovered she was pregnant she feared for her life as she believed the pregnancy increased the risk of her cancer returning. She argued that there was no effective procedure available in Ireland for assessing that risk – and therefore she nor her doctors could ascertain if she was entitled to a lawful abortion in Ireland.

International thoughts

The government were forced into action to legislate for the X Case following the judgement in the A, B & C versus Ireland case. The European Court of Human Rights had said the reality in Ireland is different to the legal theory.

It said it was concerned about the “effectiveness of the consultation procedure [between a woman and her doctor] as a means of establishing… qualification for a lawful abortion in Ireland”.

The Court noted that while the Constitutional provision (as interpreted by the Supreme Court in the X Case) allows for certain lawful abortions, the fact that it had never been legislated for (at that point) meant that “absolute prohibition” and “associated serious criminal offences” remain in force and contribute to the “lack of certainty” for a woman and her doctors.

Therefore, women who legally qualify for an abortion in Ireland often ended up travelling abroad to have the procedure.

Against this background of substantial uncertainty, the Court considers it evident that the criminal provisions of the 1861 Act would constitute a significant chilling factor for both women and doctors in the medical consultation process, regardless of whether or not prosecutions have in fact been pursued under that Act.
Both the third applicant and any doctor ran a risk of a serious criminal conviction and imprisonment in the event that a decision taken in medical consultation, that the woman was entitled to an abortion in Ireland given the risk to her life, was later found not to accord with Article 40.3.3 of the Constitution. Doctors also risked professional disciplinary proceedings and serious sanctions.

An expert group was set up in January 2012 to examine how best to deal with the court’s ruling. It issued its recommendations in November 2012, in the weeks following the death of Savita Halappanavar. The young woman’s death made headlines around the world after it was reported that she was denied an abortion as she miscarried and contracted an infection. She died of blood poisoning.

Since the 31-year-old dentist’s death, the United Nations has also been vocal on Ireland’s abortion services. Just last month, the human rights panel criticised the State for its highly restrictive laws.

Committee Chairman Nigel Rodley said that Ireland treats its women like vessels “and nothing more”.

The Savita Effect

The death of Savita Halappanavar and the beginning of the process to legislate for the X Case are often conflated but this may not be wholly accurate.

The government were being pressurised to clarify the Constitutional and legal positions because of the 1992 Supreme Court ruling and the ABC case.

Therefore, it was the learnings of the expert group that would be crucial.

Made up of medical experts, lawyers, and officials from the Department of Health, the group was tasked with setting out “options on how to implement the judgement” in the A, B, and C versus Ireland case.

It made no firm recommendations but gave options to the government, including to bring in new laws plus regulations for the medical community. The Justice Minister of the time, Alan Shatter, was explicit in the government’s view that there was “not an option” to omit a provision for suicide from the law.

So, what next?

This week there have been calls for the Eighth Amendment to be repealed. For this to happen, a Constitutional referendum would have to be held.

The current government is not keen to do this, especially after the battle it had last year when introducing the new laws, with coalition partner Fine Gael losing a number of members.

As is, there are a number of reviews and reports ongoing. Including continued assessments by the United Nations Human Rights Committee and an internal report into what happened in the most recent controversial abortion case.

A referendum seems unlikely unless the protests grow to a much larger level. This week saw hundreds of people take to streets, significant numbers but nothing near policy-influencing crowds.

Medical aspects

There are a number of different abortion procedures and the methods used generally depends on how long the woman has been pregnant.

Early medical abortions can be carried out in the first nine weeks of pregnancy. It involves taking two drugs – one which blocks the pregnancy hormone that is necessary for a successful pregnancy and another which breaks down the lining of the uterus. Essentially, they induce an early miscarriage.

A medical abortion works in a similar fashion as the same drugs (mifepristone and prostaglandin) are taken – just in a higher dosage. It is described by clinics as similar to having a late miscarriage as it is used for pregnancies in the nine to 20 week stage.

Suction abortions, or manual vacuum aspirations (MVA), are classified as surgical terminations. During the procedure, a small tube is inserted into the uterus to remove the pregnancy by suction. A local anaesthetic is used and MVAs can be undergone up to 10 weeks into pregnancy.

After 10 weeks and up to 15 weeks, women may undergo a vacuum aspiration. Instead of a manual suction technique, an electric pump is used.

A surgical dilatation and evacuation (D&E) abortion is the option usually used after 15 weeks. It is carried out under general anaesthetic as the pregnancy is removed through the cervix by a special forceps.

Complications that can – but rarely – arise from abortions include infection, excessive bleeding or damage to the cervix or uterus. According to statistics from the UK, up to 14 out of every 1,000 medical abortions fail to end the pregnancy and further treatment is required.

In the most recent case, the pregnancy was terminated by Caesarean section after the foetus became viable, which usually happens at between 24 and 26 weeks.

Other jurisdictions

Debates about abortion are not confined to Ireland. A US politician’s opinion on family planning matters is of major significance to voters – the 2012 Republican presidential nomination race was partly dominated by talks of scrapping funding to Plan Parenthood because it provides abortion services.

In Europe, abortion is legal in some guise in most countries. Malta is the current exception where it is completely banned under all circumstances.

Most European states allow for abortions only under certain conditions, such as when there is a risk to the mother’s health – be it mental or physical. There are also differing gestational limits in countries which offer on-demand abortions. In Belgium, Denmark and France there is a 12 week limit, while others, including Austria and the Netherlands, allow terminations up to 24 weeks.

Many countries loosen their restrictions in the case of rape, incest, teenage pregnancies (Finland offers abortions up to 20 weeks if the pregnant girl is younger than 17), where there is a risk to the physical or mental health of the patient or when there are foetal abnormalities.

Northern Ireland

Laws relating to abortion are not as restrictive in Northern Ireland as they are south of the border but they are not as loose as other parts of the UK.

The 1967 Abortion Act legalising terminations in England, Scotland and Wales was not extended to the six counties because Westminster left it up to Northern Ireland’s own parliament to decide. It never took up the issue and even when Direct Rule returned, the Act was never extended to include the province.

There have been some moves to close the gap in legislation but these have been shelved at various times in the past decades. Abortion is only legal in very exceptional circumstances but these include when there is a substantial risk to the long-term physical or mental health of the woman.

Although women who discover their babies are not compatible with life outside the womb may legally have an abortion in Northern Ireland, many travel to the mainland for terminations.

Women in Northern Ireland are not entitled to an abortion through the National Health Insurance scheme (the NHS).

Great Britain

Although women in England, Scotland and Wales can have an abortion up to 24 weeks of pregnancy about 90% are carried out before 13 weeks.

Terminations are provided for free through the NHS for citizens but private-run clinics charge around £500.

Those aged under 16 do not require parental consent to undergo a termination. The partner also has no legal rights in the decision and does not have to be told about the procedure. In fact, where partners have tried to prevent an abortion by legal action they have failed.

The Netherlands

Anecdotal evidence shows that Irish women have started to travel to the Netherlands for abortion services, as well as the UK. Abortion has been legal there since the 1970s and terminations are allowed up to 24 weeks. However, in practice most clinics set a limit of 22 weeks.

Legislation sets certain requirements about how a woman arrives at her decision to terminate. There are also laws which lay out conditions for the quality of care given by hospitals and clinics where the procedures are performed.

Despite access to abortion services being relatively free and easy, the Netherlands actually has one of the lowest abortion rates in the world, according to its Centre for Contraception, Sexuality and Abortion.

A version of this article was first published on 28 April 2012; it has been updated and republished on 23 August 2014. 

More: Ireland in the international headlines again after rape victim is denied abortion

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