Ireland’s Regulation of Termination of Pregnancy Bill: Obstacles to Legal Abortion in Ireland Remain

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Ireland Constituency Map 2016 (https://creativecommons.org/licenses/by-sa/4.0)], via Wikimedia Commons)

On May 26, 2018, the Irish people voted overwhelmingly to repeal its constitutional amendment prohibiting abortion in nearly all circumstances since September, 1983. This was a historic vote given Ireland’s long and contentious history with abortion rights. The right to abortion was elevated to a particularly heightened significance at the time of Ireland’s independence from the United Kingdom and the subsequent drafting of its new constitution, which included leaders from the Irish Catholic Church and the Vatican. The Constitution of 1937 and its provisions regarding family life embodied a distinctly Catholic ethos. For instance, Article 41(2)(2) of the Constitution ensures that “the State shall . . . endeavor to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.” In this way, Ireland tried to create a unique cultural identity independent from that of the United Kingdom, with the Pro-Life Amendment Campaign advocating in the 1980s against abortion as a “violent colonial tool. . .threaten[ing] the integrity of the Irish nation.”[1]

Prior to the Eighth Amendment, Sections 58 and 59 of the Offences against the Person Act of 1861 criminalized abortion. However, the Eighth Amendment went further, ensuring that the State would explicitly protect “the right to life of the unborn and, with due regard to the equal right to the life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.” The 2018 referendum proposed replacing the text of the Eighth Amendment with the possibility that “[p]rovision may be made by law for the regulation of termination of pregnancy.”

The 2018 referendum illustrated a dramatic change in public opinion amongst Irish citizens—the proposal passed with 64.1% of the vote, with historically high turnout. Prior to 2018, the most recent referendum addressing abortion was in 2002, which had proposed the elimination of the exception allowing for abortion when the mother faced risk to her life from suicide. While ultimately defeated, the vote was extremely close, with 49.58% of the population voting in favor and 50.42% against the proposal. In that case, the split between urban and rural voters proved to be highly determinative. Meanwhile, in 2018, those over 65 years old were the only demographic to vote against repealing the ban on abortion.

In the past, the Irish government has not always affirmatively legislated pursuant to referendum results, including the referendum in 1983 which originally added the Eighth Amendment. Instead, the legislature left the Amendment to judicial interpretation. Notably, on December 6, 2018, just six months after the most recent referendum, the lower house of the Irish Parliament passed legislation legalizing free and legal abortion for any reason up to the twelfth week of pregnancy, with ninety votes in favor of the legislation, fifteen against, and twelve abstaining. This legislation became effective on January 1, 2019. In the case of fatal fetal abnormality or serious risk to the woman’s life or health, abortion is permitted even beyond the first twelve weeks. Medical personnel have the right to refuse to perform abortions based on conscientious objections, though they are required to then refer the patient to a willing abortion provider.

However, women seeking abortions in Ireland have already run into obstacles. In early January, a Dublin-based hospital denied a woman an abortion despite the existence of a fatal fetal abnormality, discovered by her obstetrician and confirmed by a second. The hospital reasoned that her situation did not “fall neatly into a fatal foetal abnormality” despite doctors’ determinations that “the baby wouldn’t survive.” As a result, the woman was forced to travel to England in order to obtain an abortion—a trip hundreds of thousands of women made in the past and one that the referendum intended to eliminate.

Furthermore, the right to moral objection poses great risks to the availability of legal abortion, as has been seen in countries with comparable regimes. Poland’s “conscience clause” similarly required that the doctor advise the patient of another means of obtaining an abortion (although this was recently repealed in 2015). As a result, doctors who had performed abortions regularly for years yielded to anti-abortion sentiments and began refusing services based on the conscience clause. Additionally, while legally only individual doctors may invoke the conscience clause, in practice, individuals often invoke it for entire medical institutions, thereby preventing otherwise legal abortions. Such common abuse, combined with the absence of an effective appeals process, has been criticized by both the UN Human Rights Committee and the Committee of the Convention on the Elimination of All Forms of Discrimination against Women.

Additionally, ambiguity in the legislation with respect to the twelve-week time limit is causing doctors to act too conservatively, perhaps preventing legal abortions. The new legislation permits abortion for any reason as long as “the pregnancy concerned has not exceed 12 weeks.” However, an abortion can take days to complete and the wording does not clarify whether the twelve-week limit includes the start of the procedure or the completion of the termination. For this reason, some hospitals, fearing the possibility of a fourteen-year imprisonment, have stopped offering abortions at the eleventh week of the pregnancy.

The referendum and subsequent legislation legalizing abortion are extremely historic given Ireland’s history with abortion. However, as demonstrated by the wrongful denial of an abortion less than three weeks after legalization, the new laws still face many obstacles stemming from its exceptions and the continued criminalization of violators. The conscience clause presents a particularly dangerous loophole, and Ireland should be vigilant in ensuring that safe and legal abortions remain available.

 

Caroline Wattenmaker is a second-year J.D. student at Columbia Law School and a co-Executive Online Editor of the Columbia Journal of Transnational Law. She holds a B.A. from the Vanderbilt University, where she studied Economics, French, and Mathematics.