THE LEGALITIES SURROUNDING abortion services in Ireland were propelled into the spotlight in 1983 with a constitutional referendum and again in 1992 when the nation’s highest court ruled on the X Case.
In 2013, the debate rages on.
The Oireachtas Committee on Health and Children is gearing up for three full-day sessions, featuring both legal and medical experts, as well as pro-choice and anti-abortion organisations.
The group, chaired by Fine Gael TD Jerry Buttimer, has been asked to help the Government before it draws up legislation in line with its decision following the publication of the Expert Group report into the ABC versus Ireland judgement.
It is hard to strip away the emotion which pervades the debate, making it one of the most divisive issues in this country over the past 30 years.
Usually not a place for protesters, Dublin has seen thousands of people take to its streets for both pro-choice rallies and pro-life vigils; scenes reminiscent of those of 1992.
Over the past three decades, Ireland has seen numerous referendums, multiple expert groups and a plurality of court cases, making the debate anything but straightforward. The peculiarities of certain cases, various legal wrangling and the passion of two deeply-divided ‘sides’ can confuse the matter and lead to much misinformation being spread.
Last year, TheJournal.ie took a dispassionate look at the legal aspects, the referendums, cases taken and the expert group. Here, we update that information ahead of this morning’s first session in the Seanad chamber (see below for the schedule for Tuesday, Wednesday and Thursday’s hearings).
The legal aspects
First off, abortion is illegal in Ireland. The Offences Against the Person Act of 1861 criminalised any woman – or anyone helping that woman – who “procured a miscarriage”. These laws remain on Ireland’s statute books.
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 is allowed for under current legal precedent because of the Supreme Court ruling in the X case.
In the Irish Medical Council’s guidance for medical practitioners, a doctor is told to undertake a full assessment of any risk of suicide in light of clinical research in the area. If a substantial risk to the life of the mother is found, an abortion can legally take place in Ireland.
If a complication arises where therapeutic intervention is required during pregnancy, doctors are legally allowed to proceed even if there is little hope of the baby surviving. The medical profession are duty bound to protect the life of the mother while making every effort to preserve the life of the baby.
It is illegal in Ireland to have an abortion in the case of lethal foetal abnormality. This issue was covered extensively last year as a group of women went to the Dáil to call for limited access to abortion services in Ireland for pregnant women who are told their babies are “incompatible with life outside the womb”.
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 4,149 women gave Irish addresses when attending clinics to have terminations during 2011.
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.
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 fell 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.
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.
Grey areas and the expert group
Although the current arrangements allow for legal abortions in very particular cases where the mother’s life is in danger (including from the risk of suicide), a large grey area emerges because of a lack of legislation in the area.
Giving its judgement in the A, B & C versus Ireland case, the European Court of Human Rights found that the reality in Ireland is different to the legal theory. It said it had concerns 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”.
It said that while the constitutional provision (as interpreted by the Supreme Court in the X Case) allows for certain lawful abortions, the fact that they have never been legislated for means 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 end 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 reported its recommendations, taking into account the constitutional, legal, medical and ethical considerations, last November.
The Government is now due to draft legislation and regulation. Which brings us up-to-date with what is happening at Leinster House today. The aim of the meetings over the next three days is to gather information which will be of assistance with the creation of public policy.
The Oireachtas schedule
-All hearings to take place in the Seanad Chamber
Tuesday, 8 January
Session 1: 9.30am – 11.30am:
- Department of Health
- Irish Medical Council
Session 2: 11.45am – 1.45pm
- Dr Rhona Mahony, Master at the National Maternity Hospital
- Dr Sam Coulter Smyth, Master at the Rotunda Hospital
- Dr Mary McCaffrey, Kerry Hospital, Tralee
Session 3: 2.45pm to 4.45pm
- Dr Anthony McCarthy, College of Psychiatry Ireland
- Dr Joanne Fention, College of Psychiatry Ireland
- Dr John Sheehan, College of Psychiatry Ireland
- Professor Patricia Casey, Dept. of Adult Psychiatry, UCD & Mater Misercordiae University Hospital
- Professor Veronica O’Kane, Dept. of Psychiatry, Tallaght Hospital
Session 4: 5pm to 7pm
- Niall Behan, CEO of the Irish Family Planning Association
- The Institute of Obstetricians & Gynaecologists
- Maternal Death Inquiry Ireland
Wednesday, 9 January (legal hearings)
Session 1: 9.30am – 11.30am
- Jennifer Schweppe, University of Limerick
- Ciara Staunton, NUI Galway
- Dr Simon Mills, Law Library
Session 2: 11.45am – 1.45pm
- Bar Council of Ireland
- Irish Council of Civil Liberties
Session 3: 2.45pm – 4.15pm
- Professor William Binchy, Trinity College Dublin
- Hon. Judge Catherine McGuinness
Thursday, 10 January
Session 1: 9.30am – 11.30am
- Irish Catholic Bishops Conference
- Church of Ireland
- Presbyterian Church of Ireland
- Methodist Church of Ireland
- Islamic Cultural Centre of Ireland
- Atheist Ireland
- Caroline Simons and Dr Berry Kiely of the Pro-Life Campaign
- Dr Eoghan de Faoite and Dr Seán O’Domhnaill of Youth Defence
- Patrick Carr and David Manley of Family & Life
- Breda O’Brien of the Iona Institute
- Sinéad Ahern of Choice Ireland
- Orla O’Connor, National Women’s Council of Ireland
- Director of Action on X