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Ivana Bacik is a lecturer in criminal law at Trinity College Dublin.
Despite the many referendums and court cases aimed at restricting women's abortion rights, Irish women have travelled to England for abortions in increasing numbers, now around 7,000 a year, since the 1967 English Abortion Act was passed. For many individual women, having to travel abroad for abortion poses significant financial and health problems; for some, it is simply not possible. But the stories of women's experiences of abortion are never told publicly, due to a culture of repression around sexuality, and a taboo on discussion of abortion in anything other than a legal-moral context. The fear of speaking out about abortion is perhaps the most striking aspect of the culture around abortion in a society that remains obsessed on many levels with the repression of women's sexuality. The Catholic Church has had a large part to play in generating and fostering this repressive culture. But legal changes are mostly due to the zeal of a small number of vocal anti-abortion campaigners, who since the early 1980s have brought disproportionate influence to bear on politicians, with the result that Irish abortion law remains the most restrictive in Europe. The present unsatisfactory legal situation is also due to the cowardice of politicians, who have never confronted the issue of abortion or sought to pass legislation. Widespread public and political antipathy towards dealing with abortion was confronted in the early 1990s, when the X and C cases re-ignited the abortion debate. Each case led to an outpouring of public support and sympathy for the girls involved, and caused many to change their attitudes towards abortion, particularly in circumstances of rape. Although a core of voters remains firmly anti-abortion, public views have clearly become more liberal over time.
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The following points highlight the fundamental flaws in the Government's Referendum proposal: 1) a flawed mechanism to amend the Constitution - an amendment within an amendment, containing within it a detailed piece of legisation 2) possible breach of separation of powers in usurping the function of the legislature 3) enactment of legislation with 'super-constitutional' status 4) incompatibility with the existing Article 40.3.3 if suicide risk is removed 5) the use of the words 'in particular' to qualify the rights to life 6) the Act would only be capable of amendment by referendum 7) definitions of 'abortion' and 'medical procedure' 8) use of 'after implantation' phrase 9) problem with test for lawful termination 10) problems with use of phrase 'approved place' 11) lack of provision for defence in new criminal offence 12) 'super-constitutional' nature of new criminal provision 13) failure of criminal provision to have equal regard for woman's life 14) no provision for emergency procedures in 'conscience clause' 15) no right to assistance in travel - no enabling provision for health boards, impact of C case decision means C would be denied ability to travel in practice 16) excessive ministerial power in making of enabling orders 17) two months minimum delay before implementation of legislation 18) need for Taoiseach to bring Act into effect - problem with separation of powers 19) incompatibility with Maastricht Protocol 20) incompatibility with international law
The fundamental effect of the proposal is to reverse the X case and deny the risk of suicide as a justification for a life-saving abortion. It also does the following: 1) reduces women's right to life, by making our lives explicitly worth less than those of the unborn; 2) endangers the lives of those women who are pregnant and suicidal but unable to travel abroad without assistance, like the young girl in the C case; 3) creates a draconian new criminal offence which will encompass those women who seek to abort themselves or anyone who seeks to help them; 4) introduces a legal quagmire which is constitutionally flawed and which will not be capable of amendment without a further constitutional referendum; 5) does nothing to help or improve the situation of the 7,000 Irish women who travel to England every year - 19 women every day - to seek abortion.
To deny the reality that pregnancy can pose grave psychological as well as physical risks to a woman's life is both wrong and dangerous. It is deeply offensive to women to say that we are not to be trusted - that we will fake suicide risk in order to obtain abortions. It is also deeply offensive to the psychiatric profession, who are not be to be trusted either since they might collude with women in faking suicide risk. The denial of the existence of severe psychiatric and psychological disorders -- many of which may be exacerbated by pregnancy - is grossly offensive to sufferers of mental illness, to victims of suicide in Ireland, and to their families and contrary to internationally established medical opinion. But the amendment is not only offensive to women; it also endangers our lives. If the amendment is passed, those most vulnerable women and girls who are pregnant while in the care of State - including those who are wards of court, asylum seekers, women in detention and children in care - and who are at risk of suicide, will not be able to travel abroad for life-saving abortions, because nothing in the proposal enables a health board or other state agency to assist a woman in travelling abroad for an abortion that is not lawful here. A decade after public outrage over the X case, and five years after the desperate circumstances of the girl at the centre of the C case, the government continues to play politics with women's lives. This referendum is a cynical and dangerous political manoeuvre. It must be abandoned, and instead, we call upon the government and all political parties to seek genuine solutions to the reality of Irish abortion and to work towards the provision of legal and safe abortion within Ireland, most urgently when women's lives are at risk from physical or mental causes. Apart from being dangerous, this referendum is misguided. A combination of the Fianna Fail leadership, the Catholic bishops and one anti-abortion group does not constitute a broad middle-ground consensus. Current opinion polls reflect this reality, with indications that the referendum proposals will be defeated - as an identical proposal was in 1992. The Alliance for a No Vote calls on the Government - and especially the PDs - to recognise the reality, accept their proposal is deeply flawed, and abandon this dangerous and misguided referendum.
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