‘FLOODGATE ARGUMENTS’ ABOUND in the current debate about abortion legislation in Ireland. In our research, we have found that many of these arguments serve only to distort the current debate because they suggest long-term implications of abortion legislation that are simply precluded by the clear and unambiguous wording of the Constitution.
As well as that, these arguments have a tendency to use information from other countries in a selective and sometimes disingenuous manner. In fact, when the existing constitutional regime is taken into proper account, many of the ‘risks’ of abortion legislation are clearly mitigated. This calls into question the weight, if any, that these kinds of arguments ought to be given.
Claim 1: Abortion cannot be limited by legislation
It is often claimed that legislation allowing for abortion cannot effectively limit abortion to specific circumstances. The anti-choice parliamentarians who recently travelled to the United States are reported onTheJournal.ie this morning to have made this same argument by reference to California, Britain, France, Chile and New Zealand. However, these examples are entirely inapposite to Ireland.
Article 40.3.3 of the constitution contains an express statement of equal constitutional protection for a pregnant woman and the unborn. This means not only that abortion can be limited by legislation, but that in fact it must be if it is to avoid unconstitutionality. The only abortion that is clearly permitted by the Constitution is one where three requirements are fulfilled: (i) there is a real and substantial risk to the life of the pregnant woman; (ii) on the balance of probabilities that risk can be averted only through termination of the pregnancy; and (iii) the foetus is not viable nor on the cusp of viability. If the foetus is viable, the appropriate intervention under Article 40.3.3 is early delivery.
Even if the Irish judiciary were to be ‘activist’ in interpreting the Constitution, two important points remain for noting: first, Article 40.3.3 simply cannot be interpreted in a manner that allows for abortion ‘on demand’; and second, if the Supreme Court interprets the constitution in a manner considered to be contrary to its intention the government of the day can propose a referendum for the People to endorse or reject that interpretation.
Claim 2: Rates of abortion increase dramatically when legislation is introduced
In the absence of constitutional change, legislation can only permit abortion where the limited constitutional test is satisfied. Thus, even if abortion rates in Ireland were to increase, the increase could only be modest and will comprise only women who fall into these limited circumstances. The constitutional restraints are such, therefore, that claims of a substantial increase in abortion undertaken in Ireland are mere assertions divorced from legal realities.
Claim 3: Medical certification does not work
The British Abortion Act 1967 is often used to argue that requiring certification by more than one doctor does not work. Under the Abortion Act 1967, apart from in an emergency, two doctors must agree in good faith that one of the four grounds for abortion under the Act applies. Here, the second doctor reviews the case to ensure the accuracy of the first doctor’s conclusion, a step which is routinely taken in a GP practice’
It is correct to say that concerns have been raised about doctors using ‘pre-stamped’ forms to approve of abortions. However, where this practice has been uncovered in Britain, there have been threats of criminal sanctions and steps have been taken to ensure compliance with the law. In addition, this version of events is only part of the story; in reality the two-doctor rule also has the effect of giving doctors the capacity to refuse abortions including, in some cases, on the basis of a pregnant woman’s ‘actual or reasonably foreseeable environment’ (s.1(2))—a wide ground that allows for non-medical matters to be taken into account in deciding whether an abortion is permitted. As well as this, there is evidence of doctors in Britain telling women to take a few weeks to “think about it” before they discuss abortion refusal, or to ask patients to read the Bible (L Riley and A Furedi, ‘Autonomy and the UK’s Law on Abortion: Current Problems and Future Prospects’, in S Scatler et al (eds), Regulating Autonomy: Sex, Reproduction and Family (Oxford: Hart, 2009)).
The picture in Britain is thus significantly more complex than is often represented in the Irish debate.
Further to that, it is important to remember that the standard for accessing abortion in Ireland is so materially different—and so much more onerous—than that in Britain that it is almost certainly the case that any abortion decisions to be taken will be made in the context of hospital care, where averting procedures (and, indeed, ethics committees) may well be more difficult than is the case in general practices. The Abortion Act 1967 thus does not provide any useable argument against abortion legislation in Ireland.
Claim 4: A change in culture will occur
A final claim – one made by the anti-choice Parliamentarians reported in TheJournal.ie this morning – is that introducing abortion legislation will lead to a change in culture in which abortion becomes more acceptable. Although this is a floodgate argument inasmuch as it is intended to distract decision-makers from the task at hand (giving effect to the current constitutional provision), it is one that may well be true given that, as abortion becomes legally available in Ireland, claims for more availability might be made. However, this does not mean it provides a basis for refusing to legislate because, even if there were such a cultural change, this could not result in a legal change without a constitutional amendment, which in turn can only be achieved by means of a referendum of the People.
Fiona de Londras is a professor of law & co-director of the Human Rights Centre at Durham Law School. She tweets at @efdel. Laura Graham is a lecturer in law & co-director of Gender and Law at Durham at Durham Law School. She tweets at @lauragraham86
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