Submission of the Dublin Abortion Rights Group to the All Party Oireachtas Committee on the Constitution.


November 1999

Contents

1. INTRODUCTION - The Green Paper

The Dublin Abortion Rights Group were the organisers of the massive march in Dublin in February 1992 when the courts attempted to intern 'X', a 14-year-old rape victim, in order to prevent her travelling to England to get an abortion. Then we were the 'Dublin Abortion Information Campaign' as we were struggling against the ban on abortion information.

The Dublin Abortion Rights Group welcomes the comprehensive discussion on all possible legal options as outlined in the Green Paper on Abortion. In addition we regard it as positive that some sections of the Green Paper, for example Chapter 5.64, addresses the need for a nation-wide network of non-directional pregnancy counselling services, which should be free and available on request. We also support the seven points put forward in Chapter 6.55 regarding the wider availability of contraception and allied advice services and we feel that these would be of great benefit to women in Ireland.

The current Irish abortion statistics indicate that there is a need for abortion among Irish women. At present, for many Irish women this need is addressed through the relative ease of travel to Britain, and the provision of abortion by reputable clinics in Britain. However, for the most vulnerable women in our society; the young, the poor, the unwell, or those with disabilities, it is simply not enough that abortion is available in Britain. For those who are unable to travel, but who need to obtain abortions, Irish society at present offers no remedy. The DARG believes that abortion facilities should be available in Ireland.

Central to the policy of the DARG is the view that abortion should be seen primarily as a medical issue; an issue of women's health; not a moral, ethical, religious or legal issue. Further, the DARG believe that all women should have access to abortion on an equal basis. We do not want to see a two-tier system, such as exists at present, where those who cannot afford to travel are denied the access to abortion which the better-off have. Thus, the DARG recommends that abortion should be made available through the health system, as accessible to medical card holders as it would be to private patients.

In the following pages the DARG puts forward our response to the various legal options outlines in Chapter 7 of the Green Paper.

 

2. DARG Commentary on Green Paper Options

Chapter 7.16

OPTION I

Absolute Constitutional Ban in Abortion

The DARG welcomes the broad range of discussion in the Green Paper regarding the medical implications an 'absolute ban' on abortion would have on the treatment of pregnant women. A public discussion citing the large number of medical conditions and complications which seriously endanger the lives or health of pregnant women, as outlined in Chapter One and in Chapter 7(1)19 of the Green Paper, is long overdue.

The Green Paper also refers to the 'doctrine of double effect' and the claim by anti-abortion groups that some terminations are not abortions because they are 'indirect' rather than 'direct' abortions. This philosophical reasoning has been allowed to dominate the 'moral' and, more importantly, the medical debate on abortion in Ireland. Both 'direct' and 'indirect' abortions result in the destruction of the foetus and as such are pregnancy terminations. Under existing medical practise direct abortions already take place in Ireland and the introduction of an 'absolute ban' would overturn such existing medical practise and endanger the lives of women.

The argument that so called 'indirect' abortions are not really abortions is a theological concept exclusive to the Catholic church and is not the view any other world religion. Such sectarian principles based on the opinion of one religion should not be included in either the constitution or legislation of a modern European state. In an increasingly secular and multi-cultural Ireland the beliefs of religious and cultural groups other than Catholics must be recognised, as well as the rights of people who do not adhere to any religion.

It is intolerable that vital medical decisions regarding the life or death of adult women should be made on such narrow religious and philosophic grounds, and even worse that such theories should form the basis of medical practise or be incorporated into the constitution of the Irish State.

In this regard DARG welcomes the discussion, in 7.22-7.23, outlining the reservations of the 1992 government and the Constitution Review Group in relation to enshrining concepts such as 'direct' and 'indirect' abortion into the Constitution.

The DARG totally rejects the examples of wordings for 'absolute bans' given in Chapter 5.75. To introduce any such wordings to the Constitution would have extremely serious and most likely fatal implications for women who would be denied therapeutic abortion as part of medical treatment.

The intention behind the 1983 constitutional amendment, in the eyes of it's supporters, was to introduce an 'absolute ban' on abortion in all circumstances. This was the perceived meaning of article 40.3.3 until the Supreme Court judgment in the X case. The passage of any new amendment to 'ban abortion in all circumstances', - in the unlikely event of it being possible to formulate a wording for such a clause - would also fall to the courts to interpret. In the event of another court decision adverse to the beliefs of the anti-choice campaigners we would see yet another Greek chorus demanding further referenda. This situation cannot be allowed continue in an never ending cycle of political and public discord on abortion.

The option of an absolute ban on abortion should be rejected by the Committee because of the implications it would have on medical treatments available to women with life or health threatening conditions. Neither should public policy surrounding the issue of abortion and maternal health be left in the hands of 'ethical guide-lines' of a Medical Council which is not answerable to the people or to the legislature.

DARG welcomes the introduction of a European dimension to the discussion on the State's obligations regarding the European Convention on Human Rights, as outlined in Chapter 7.27.

OPTION II

Amendment to the Constitution so as to restrict the application of the X case ruling.

This option is nothing more than an attempt to negate the decision of the Supreme Court in the X case by removing the risk of self destruction as a grounds for abortion.

This is the same option which was put to referendum on November 1992 and was defeated. Both the pro-choice and anti-choice lobbies opposed this option and the proposal was defeated. We see no point in the re-running of such a vote.

In 1992 proposals to implement the Supreme Court decision in the X case had been drawn up by the Minster for Health which, it was claimed, would be introduced in the event of this clause being defeated. Once the referendum was rejected no legislation was introduced, a decision which the DARG regards as a gross dereliction of duty on behalf of the government.

The discussion on this option in the Green Paper does not touch on any of the complex psychological issues surrounding threats of self destruction, or actual suicide, in pregnancy. The issue of psychological as well as physical health of women must be addressed in the context of pregnancy and suicide. We feel that the issue of suicide and pregnancy is treated in a very cursory manner in Chapter 1.25-1.27.

The court decisions permitting abortion for both 'X' and 'C' were made on the basis of danger of suicide. There is no guarantee that other such cases will not emerge. The introduction of an amendment prohibiting abortion in cases of threatened suicide could quite conceivably result in the death of a woman by her own hand.

OPTION III

Retention of the Status Quo

This option is one which seeks to evade the issue of the provision of legal abortion in Ireland. It is an option which fails to make any coherent arguments in it's own favour. The whole discussion (7.38-7.41) outlines nothing but disadvantages and uncertainty regarding this approach.

The proposal to retain the status quo might possibly have some point if there was any certainty as to what the status quo actually is. At present abortion could be interpreted as both legal and illegal in Ireland. The DARG interpretation is that abortion is legal, but unavailable, notwithstanding a legal interpretation of article 40.3.3 which states that it is legal and therefore should be available in limited circumstances, i.e. threat to life including the risk of suicide.

The retention of the status quo would have some merit if provisions were put in place to actually implement the law as it stands, i.e. make provision for abortions to take place in Ireland on the basis of the X case.

In the event of Option 7 (III) being approved the issue of abortion will continue to come before the courts to be decided on a case by case basis. The distressing circumstances of the individual women seeking abortions in cases of rape, incest, etc. will continue to disrupt Irish society. This is to the benefit of no one and provides no solution to the abortion debate in Ireland.

DARG rejects this option as it does not make any provision for abortion to be available in Ireland, even on the very limited basis of the X case.

The most cogent argument against the retention of the status quo was made by Mr Justice Niall McCarthy in 1992 when he stated in relation to the X case:

'The failure by the legislature to enact the appropriate legislation is no longer unfortunate, it is inexcusable. What are pregnant women to do? What are the parents of a pregnant girl underage to do? What are the medical profession to do? They have no guidance, save what can be gleaned from the judgments in this case.'

OPTION IV

Retention of the Status Quo with legislative restatement of the prohibition on abortion.

Many of the arguments we have made in relation to Option 3 are also relevant to Option 4.

In fact this would be a worse approach in that it would create an even greater degree of political and legal confusion. A legal situation would be put in place whereby legislation would be in contradiction with a more liberal constitutional interpretation. Any such stance would therefore be constitutionally suspect.

We fail to see why it is necessary to introduce another, and more restrictive, version of the 1861 Offences Against the Person Act, especially since Ireland does not have a problem with illegal 'backstreet' abortion.

The arguments for Option 4, in 7.43, seem to be an attempt to ban abortion but still allow it in the circumstances of risk to life, but not health, of the woman. So such a new law would not prohibit abortion, in fact it would just create further legal obstacles to be overcome by women and medical practitioners attempting to exercise the woman's constitutional rights. Why not merely introduce legislation stating when abortion is permitted, even if on an extremely restricted basis?

The DARG would also be concerned that the proposals in 7.44-7.45 would create a medical and legal minefield for anyone attempting to obtain an abortion on the grounds outlined. There is no indication of legal protection for doctors carrying out such an abortion, merely the danger that s/he would be open to criminal prosecution for actions carried out in good faith and in the best interests of their patient. We also completely fail to comprehend how any assessment of suicide risk can be made without reference to 'psychological or psychiatric grounds', seeing as these are the only grounds on which the threat of suicide can be determined.

DARG very much suspects that Option 4 is yet another attempt to create 'an Irish solution to an Irish problem'.

OPTION V

Legislation to regulate abortion in the circumstances defined by the X case

The DARG would be in favour of this option, as a minimum provision, since it would provide for some degree of legal abortion in Ireland, in the circumstances of the X case, for women who need it. If this proposal is favoured by the Committee the DARG would also call for the repeal of the 1861 Offences Against the Person Act and the decriminalisation of abortion. This would not necessitate a constitutional referendum.

We would argue that the introduction of legislation to implement the X case judgment would be a positive and progressive development. Such an approach also has the advantage of avoiding yet another divisive and unproductive national 'debate' on the abortion issue.

We would reject the point made in 7.50, that this option could be tied to the 'Retention of the Status Quo with legislative restatement of the prohibition on abortion'. Again we fail to see what the benefit of this approach would be. What is the point of prohibiting something only to permit it? If this is an attempt to fudge the issue of abortion it will fool nobody and only lead to more prolonged litigation and political turmoil. The honest approach would be to introduce legislation stating that: "Termination of pregnancy is legal and can be carried out in Ireland in the following circumstances....".

The DARG would oppose any attempt to use the term 'regulate' in this option in the sense of 'restrict'. The legislation should be aimed at implementing legislatively the X case test, namely that termination should be permitted in cases where the life of a pregnant woman was at risk, including the risk of suicide

This legislation would have to include specific clauses to cover where in the State abortions could be obtained and make provision for doctors to be available who would carry out the operations

OPTION VI

A reversion to the situation as it pertained prior to 1983

The DARG supports the position that article 40.3.3 be removed from the constitution, which could only be done by referendum.

The bodily integrity, health, lives and dignity of women in Ireland can never be guaranteed so long as the life of a pregnant woman is equated in the constitution with that of the foetus she is carrying.

The wording of 1983 amendment was bound to cause future problems as it insisted, in theory, on an absolute parity between the lives of an adult woman and a newly fertilised ovum. The X case represented a conflict between the two rights to life. The Supreme Court decision was totally in accord with the role of that court as the interpreter of the constitution. The claim made by anti-abortion groups that the Supreme Court in the X case acted contrary to the spirit of the 1983 amendment is legally meaningless.

The DARG's policy supporting the deletion of article 40.3.3 is based on an analysis of the negative effects which have flowed from the passage of the Eighth Amendment in 1983.

The anti-choice movement built on their victory in 1983 by using the constitution as a battering ram against organisations they politically opposed and to restrict access to contraception. We feel that is is necessary to outline in detail some of the consequences of the Eight amendment:

The Eighth Amendment, from it's introduction to the constitution, has been used to attack the rights of women in Ireland, and a number of fundamental freedoms applying to the population in general.

These were

(1) Attacks on the right to distribute and receive information.

(2) Attacks on the right to health care and personal privacy.

(3) Attacks on the right to freedom of expression and movement.

Consequences of the 1983 amendment

The intention of the 1983 amendment - in the eyes of it's supporters - was to introduce an absolute ban on abortion into the constitution with the aim of preventing the legislature from repealing the 1861 Offences Against the Person Act, or the courts from liberalising abortion on the grounds of personal privacy.

Once the 1983 amendment was inserted into the constitution the anti-abortion campaigners who supported it moved on to further restrict the civil and legal rights of Irish women. These activities included:

The victory of the anti-abortion groups in inserting article 40.3.3 into the constitution in 1983 emboldened them to extend their campaign against women's right to reproductive control of their bodies and lives.

The lack of any legislation clarifying the legal meaning of article 40.3.3 meant that anti abortion groups adopted a strategy of defining and expanding it's application through the courts. There is no reason to believe that another anti-abortion constitutional amendment would not be exploited in this way by anti-abortion groups, leading to further political and legal turmoil.

The DARG supports the option 7 (VI) for a reversion to the pre-1983 position. We would also endorse the point in 7.63 concerning the recommendation from the Constitutional Review Group that doctors be given legal protection for appropriate medical interventions not provided for in the 1861 Act.

We would also support the suggestion in 7.64 that the rights to travel and information be preserved in the constitution, given the attacks these rights have been subjected to prior to being explicitly provided in the constitution, and also given that a number of anti-choice groups, as stated in 5.80, continue to oppose the right of Irish women to abortion information.

OPTION VII

Permitting Abortion on grounds beyond those specified in the X Case.

The DARG ultimately favours this option as the one best suited to the needs Irish women and the reality of Irish abortion.

The DARG would favour the introduction of termination facilities in Ireland providing for abortion on all of grounds outlined in Chapter 7, points viii 7(a), 7(b), 7(c), 7(d) and 7(e). However we feel that the situation could only really be clarified and simplified by the adoption of option 7(e) - Abortion on Request.

European Abortion Laws

7 (a) - Risk to Physical/Mental Health of Mother

7 (b) - Abortion for Women Pregnant as a result of Rape or Incest

7 (c) - Congenital Malformation

7 (d) - Abortion for Economic or Social Reason

7 (e) - Abortion on Request.

In the relation to 7 (a) - (e) the DARG welcomes the very wide ranging discussion on these circumstances in Chapter 4 and the international perspective provided in Appendix 3. We would refer Committee members to the table outlining abortion grounds in all EU states [Appendix 3, page 152-153] This table graphically illustrates how out of step Ireland is in relation to other Western European countries. All EU States permit abortion on grounds of preservation of the life and physical and mental health of the mother, in cases of rape and incest and in the circumstances of foetal abnormality. In addition half of these states permit termination for Economic and Social reasons, while a third allow for abortion on request.

Women's Decisions

Decisions about reproduction and childbearing are among the most intimate and complex choices women face in their lives. No one can make the decision to have a child or to terminate a pregnancy but the woman who is pregnant and faces most directly the consequences of pregnancy and childbirth. Women have always used abortion, whether legal or illegal, as a means of fertility control. Unless women themselves can decide whether or when to have children, it is difficult for women to control their lives and participate fully in society. Safe, legal, accessible and affordable abortion helps to give women that control. All women - well off or poor, young or old, urban or rural, single or married - must have a legal as well as a moral right to act on their own conscience in making the decision whether to have a termination.

Despite the ban on abortion in Ireland and the difficulties of travelling to Britain to obtain a termination the Irish abortion rate stands at 6.9% in 1998 and by conservative estimates over 100,000 Irish women have had abortions in Britain since 1971.

Abortion should be seen primarily as a medical issue; an issue of women's health; not as a moral, ethical, religious or legal issue. Further the DARG believes that all women should have access to abortion on an equal basis. We do not want to see a two-tier system, such as exists at present, where those who cannot afford to travel are denied access to abortion which the better off have. DARG recommends that abortion should be made available through the health service, as accessible to medical card holders as it would be to private patients. Not providing public health coverage limits and delays access to abortion. Such delays contribute to the ill health or women and publicly funded abortion services thus benefit the public service.

Legislative Reform

There is an urgent need to reform the current legislation on the statute books covering the area of abortion. The 1861 Offences against the Person Act provides a penalty of life imprisonment for a woman who procures a miscarriage or anyone who assists her to do so. This is a long discredited item of Victorian legislation, dating as it does from the era of public executions. The 1861 Act has already been discredited in the European Court of Human Rights due to it's criminalisation of homosexuality - a ruling which forced the decriminalistion of homosexuality in Ireland 1993.

CONCLUSION

Politicians of all parties should have the pragmatism and strength of character to step back from the political mistake made almost 20 years ago, when hasty commitments were made to hold an ill thought out referendum at the prompting of a small pressure group.

The Irish abortion debate must be taken out of the realm of legal, theological and political debate. The private and personal medical decisions made by individual women should be left to women themselves, in consultation with their medical advisers. Abortion and the lives and health of Irish women must cease to be a tool to be utilised by religious fundamentalists to exert political power in this state. As we enter the third millennium this decision lies in the hands of Ireland's elected representatives. We hope a progressive decision which favours the needs of Irish women is the outcome of this long debate.


3. Statement of Policy of the Dublin Abortion Rights Group

1. As a minimum, legislation to provide for abortion in Ireland as required by the X case.

2. The repeal of the Eighth Amendment to the Constitution, and of the 1861 Act which makes abortion a crime.

3. That pregnant women have the right to make fully informed and freely chosen decisions on their pregnancy. This requires:

(a) The provision of free and freely available abortion facilities in the state to all women who wish to terminate their pregnancies.

(b) The provision of a guaranteed minimum income, housing, support facilities etc. to all women who continue their pregnancies and keep their child.

(c) A supportive attitude to all women who decide to opt for adoption, and recognition of the rights of women and children in this position.

(d) Provision of pregnancy counselling, contraception and sex and relationships education to all who require it.

 


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