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Category Archives: Abortion

To them, we are nothing but vessels

A young non-Irish woman with limited English and precarious residency status, discovered she was eight weeks pregnant as a result of what the Sunday Times have reported as a “traumatic rape.” Due to her legal status in Ireland she could not freely travel abroad in order to access an abortion so immediately applied to have a termination in Ireland under the new legislation, stating that she was suicidal at the prospect of carrying the foetus to term. Like Savita Halappanavar and Bimbo Onanuga, she is another woman from outside of Ireland who has been completely failed by the Irish medical system.

Three doctors declared that the woman was suicidal under the panel formed under the Protection of Life During Pregnancy Act in January. The legislation states that medical practitioners may authorise an abortion where “there is a real and substantial risk of loss of the pregnant woman’s life from a physical illness or by way of suicide” but they must have “regard to the need to preserve unborn human life as far as practicable.” The Act does not set out timelines during which decisions should be made by these panels, or when abortions should be performed if granted under this law. To insert a timeline in that law, giving the applicant some clarity, would have been too generous a gift for the women of Ireland by the Irish government. The panel of three doctors said that despite the fact she was suicidal, it would be better to wait until the foetus was viable for delivery instead of performing an abortion. She went on hunger and liquid strike in response. People do not enter in to hunger strike lightly; It is a last resort attempt by people seeking redress when the politics of despair have left them with nothing else to fight with but their own bodies.

The HSE in turn, sought an emergency order at the High Court on the 2nd of August which would allow it to forcibly hydrate the woman on the grounds that they wanted to protect her life and the life of the foetus which she did not wish to carry. It further sought orders that would allow them to carry out other procedures related to her pregnancy. The woman was represented by her lawyers, and the foetus was also represented by its own legal team. The Irish courts have already stated that it is a medical practitioner who is entitled to make decisions concerning the pregnancy, and not the woman herself. The law goes far beyond preventing a pregnant woman from having an abortion in circumstances where her life is not at risk. The Irish law is designed so that a person who is pregnant no longer has any say over what happens their body whether it concerns continuing the pregnancy itself, the location in which you wish to give birth or whether you will hydrate yourself or not.

Last month in Geneva, the chair of the UN Human Rights Committee said that Irish law on abortion treats women as a “vessel and nothing more.” Once you are pregnant in Ireland, you become property of the state and your own wishes are irrelevant.

On the 3rd of August, this young, suicidal rape victim, having gone through two court hearings seeking an abortion and an unknown number of medical interrogations by a panel of three doctors, underwent a caesarean section in an Irish hospital at approximately 24-26 weeks gestation. Preserving human life as far as practicable in their eyes required performing a c-section on a woman while she was around six months pregnant, despite the fact that she had been raped, was suicidal, had gone on hunger and thirst strike and had asked for an abortion repeatedly from eight weeks on.

The implications of this are horrifying. It has sent a clear message to women in Ireland that if you are suicidal and seek an abortion which you are constitutionally entitled to, you run the risk of medical practitioners compelling you to wait until the foetus is viable and then having a c-section forcibly performed on you. This woman was in a very vulnerable position given the multiple traumas she had endured. It is the stuff of nightmares. There are other women who are suicidal as a result of pregnancy and access abortion services because they have the means and support to travel. Some contact Women on Web and some contract the Abortion Support Network. Some will borrow money from friends. Those who don’t have internet or phone access to make appointments or ability to leave the country, or money to pay, and will take other steps. Some will borrow from money-lenders, others might throw themselves down stairs. But those who are pregnant and suicidal will not go to these panels, the risk is too great.

We do not know the full facts of this particular case because the media are restricted from reporting in full. However, we do know that the Protection of Life During Pregnancy Act has not resolved the issue of not being able to access an abortion even if you are suicidal in Ireland. Three doctors said this woman was suicidal, but apparently this was not the right kind of suicidal for the purposes of the Act, and because a c-section was available then she could have that instead of a lawful termination.

It begs the question of what type of ‘suicidal’ will allow you to have a legal abortion in this jurisdiction and as long as the Eighth Amendment remains in the Constitution, there will be women travelling, dying and undergoing forced c-sections for want of an abortion within Ireland. There is no clarity as to what the scope of “practicable” actions are in order to prevent a woman from having an abortion under the cloak of “protecting the life of the unborn.”

Years ago, I had a conversation on facebook with someone who was anti-choice and was quite forthright in his views that women should be prevented from having abortions at all costs, even if they were suicidal and it required locking them up in specially designed pregnancy gulags under 24 hour suicide watch. It is a frightening vista but not totally unrealistic. Those on the anti-choice side will of course say the term “gulag” is hysterical, but if you were a pregnant suicidal rape victim, who wanted an abortion, and was in hospital on a court-ordered drip having an effectively forced c-section under threat of a court order, faced with the prospect of a 14 year jail sentence if you induce your own miscarriage, it just might feel pretty gulag-esque. You just might even etch “Nolite te bastardes carborundorum” on a wall.

To them, we are nothing but vessels.

Repeal the 8th.

Men of the Left think they’re different: Abortion and the Anti-Austerity Alliance

The amazing women’s rights and anti-capitalist activist Selma James spoke at the Anarchist Bookfair in Dublin this weekend. Bualadh bos to the WSM for getting her over. She gave inspiring talks on a range of issues, and during her contribution on Care, Social Reproduction and Austerity the conversation flowed towards the reality of activism that women’s issues are often side-lined by the left and seen as not important enough to pay attention to or campaign on.

Selma’s comment that “Men of the left think they’re different because they’re of the left, but they’re not was met with a lot of women nodding their heads in agreement in the audience, and a couple of men shifting in their seats looking a little uncomfortable. Presumably some of them were thinking the usual Not all men are like that though!” that women on the left are compelled to listen to whenever any kind of discussion emerges on sexism on the left and what to do about it. The women activists gave each other knowing looks. It’s ridiculous that this is still something women on the left have to deal with, but we do, and the results of that mind-set range from the irritating to the absolute enraging.

One such example of more enraging is the emergence that the Socialist Party front group Anti-Austerity Alliance’s election candidate in Tullamore, Mr. Thomas Carty is completely and absolutely anti-choice on the issue of abortion. It’s unclear how forcing a woman to bring to term a pregnancy against her will is in line with an anti-austerity agenda so the AAA have some questions to answer.

Of course, this isn’t a new thing. The Socialist Party have in the past courted a candidate in Omagh, Johnny McLaughlin, who turned out to be anti-choice in a most hysterical manner, so they should be aware of the ramifications of this.

There are a few potential scenarios at play here:

a)    The AAA sat down and asked Mr. Carty what his position was on abortion, and he lied and said he was pro-choice ( which is unlikely considering his anti-choice views are plastered all over facebook).

b)    The AAA sat down and asked Mr. Carty what his position was on abortion and he said he was anti-choice and they viewed it as not being all that important because electoral opportunism requires bums on seats.

c)    Nobody in the AAA asked what his view was on it because the idea that 4,500 women spending up to £2,000 each every year travelling for a medical procedure overseas never entered their heads as being relevant to an anti-austerity programme.

It’s more likely that this is incompetence rather than conspiracy, and option C would probably be the bookie’s favourite.

And if that is the case it’s more than fair to ask why did nobody in the AAA think that this was a relevant question? There are more anti-choice candidates than Thomas Carty in the AAA ranks, so now that it’s been raised what will they do about it? It would be difficult to see them retaining a candidate who had been vocally racist in the past so why is supporting an anti-woman policy being treated differently? And Mr. Carty’s belief that a position as a ‘Boob Adjuster’ would be the best job ever (what? And not an AAA councillor leading the r-r-r-revolution? Shock indeed.) which is probably quite telling of his views on women hasn’t even been touched upon.

This kind of attitude is something that you would expect from political organisations of the right. It is not unreasonable to expect more from those who not only style themselves as the vanguard of the left, but as advocates for women.

Two fairly prominent members of the Socialist Party in Dublin were asked what the story with this was earlier on today in a facebook thread. At the time of writing, this legitimate question has been met with silence.

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When Peter Hadden of the Socialist Party was questioned on the Johnny McLaughlin debacle twelve years ago he replied;

“Abortion, while an important issue, is not a make or break question for our party.”

This attitude hasn’t changed and for many on the left, something that affects more than 50% of the population’s right to do what they want with their own bodies isn’t a make or break issue. You could be forgiven for asking what impact a policy has to have before it becomes a make or break issue. Perhaps something that affected a few more men?

Selma was right, men on the left think they are different, but they’re really not.

 

 

Edit to update at 20.46: A member of the SP who may or may not be a party spokesperson commented on the facebook thread mentioned above to state that Thomas Carty was never ratified as an AAA candidate saying that,”The fact stands that at the national meeting on Sunday in which his candidacy was being decided upon, that the national AAA meeting did not endorse his candidature for the reasons outlined. So no, he was never officially ratified as an AAA candidate. Incidentally, I am not an activist within the AAA myself. It’s an entity that’s broader than the Socialist Party, with two of the seven members of its steering committee, I think, being Socialist Party activists.” 

Thomas Carty was listed as an AAA candidate on the official AAA website up to this afternoon but has since been removed. No official statement from the AAA has been issued as yet.  

Edit to update 15th April: The AAA issued a statement late last night saying : 

STATEMENT FROM THE STEERING GROUP OF THE ANTI-AUSTERITY ALLIANCE RE. THOMAS CARTY

14 April 2014

The national Steering Group of the Anti-Austerity Alliance would like to clarify that Thomas Carty, Tullamore, is not endorsed as an AAA candidate. 

The Steering Group unanimously agreed today that Thomas has attitudes which wouldn’t be compatible with being a candidate for the AAA. The AAA is a progressive organisation which fights for the rights of both women and men; rejects divisions based on gender; and takes equal treatment of women seriously.

Thomas was put forward as a candidate by a grouping in Tullamore very recently and had not previously attended national AAA meetings. When issues were brought to the attention of the national AAA meeting yesterday, they were investigated by the steering group who unanimously agree that Thomas should not be endorsed as a candidate.

From the seven members of the steering group, Anti Austerity Alliance.

Still doesn’t explain how he ended up on their official website before that and with lovely funky AAA graphics all over his social media accounts with his face on them. Oh well. 

One week on from telling my story @Ireland.

Wendy Lyon:

Last week, Janet Ní Shuilleabháin became the first Irish woman to draw world attention to Ireland’s draconian abortion laws without having to die or go to the High Court to do it. While her story has been picked up by Al Jazeera, the BBC, and media in France and Sweden, the Irish media are still pretending it never happened. Here she reflects on her unpremeditated decision to go public with her abortion story – one of over 150,000 since Ireland passed a referendum outlawing abortion in nearly all circumstances. We are very grateful to Janet for helping to break the silence.

Originally posted on Activism and Agitation:

This time last week I was curating the @Ireland account. It is a twitter account which changes curator each week. I had applied for the account before Christmas and was chosen for the week of February the 10th to the 17th. The plan was to talk about the things which I am passionate about, to get people to talk about their passions to talk about love spells, our Irish God of Love. I am a pretty diverse person, so I knew I would have a lot to talk about.

My first tweet on the Monday morning was “Hello World”, delighted me to do as it’s a old coding joke. My bio on the account read “pagan, feminist, activist, gamer, geek, and a parent with two teenagers.” From Monday morning up until early Thursday afternoon I hadn’t tweeted anything which was pro choice or Abortion Rights Campaign related. Then I RT…

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Labour’s proposed abortion referendum: Not good enough

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It’s being reported today that the Labour Party plan to fight the next election on the promise of a referendum to allow abortion in cases of rape, incest or fatal foetal abnormality. Bearing in mind that this is merely a Sunday newspaper report and (to my knowledge) Labour themselves have not confirmed it, here are all the reasons why I would strenuously oppose this move.

It would retain the constitutional anti-choice position as the default position. If this referendum passed, Irish residents would still have to get someone’s approval to have a right to abortion in their own country.  This is unacceptable, particularly coming from a party which paints itself as “pro-choice”.

It would enshrine into (constitutional) law the notion of pregnancy as punishment for sex. Feminists should absolutely reject any distinction in law between a pregnancy resulting from consensual sex and a pregnancy resulting from forced sex. To allow it is to acquiesce to the identification of women’s sexuality with reproduction, and the misogynist trope that choosing abortion is “avoiding responsibility for actions”. It reflects the odious idea that there are innocent Madonnas who can’t be blamed for having sex, and whores who deserve what they get.

It would be a nightmare in practice. You think it was difficult legislating for a “real and substantial risk to life”? Just wait until the troglodytes that write Irish legislation get to decide how to determine whether a rape happened.  As long as Article 40.3.3 remains in place – and by the looks of things, it will – you can be certain the “rape exception” will require a very high burden of proof, and that will inevitably involve a humiliating, (re-)traumatising inquisition. Who would go through that when they could just go to England – or the internet – instead?

It will still exclude the vast majority of crisis pregnancies. While accurate statistics will be impossible to come by as long as we have to go abroad or self-administer our abortions, it’s probably safe to say that relatively few take place because of any of the current or proposed “exceptions”. Most fall into the category that pollsters are now describing as “when the woman believes it’s in her best interest”: a broad category that can cover anything from financial woes, to interference with studies, to domestic problems, to simply not feeling ready to have a child, etc. These are normal reasons and they are valid ones, and they will still be excluded under this proposal – leaving the majority of those who have abortions to remain stigmatised and perhaps criminalised under the law.

It would eliminate the most persuasive argument for repealing Article 40.3.3. We don’t have a pro-choice majority in this country yet, and we may not for a while – but we do have a majority opposed to the strict parameters of Article 40.3.3 (at least, according to every single opinion poll in the past ten years not commissioned by the anti-choice movement). Those parameters could be a strong reason for people to support its repeal even if they aren’t fully on board with the right to choose. To widen the parameters through amendments that carve out exceptions would be to remove the incentive for people who aren’t pro-choice to support repeal. The end result would be a “compromise” that would effectively kill off any hope of actually getting rid of 40.3.3 and establishing a right to abortion in Ireland.

I am aware that a “repeal the 8th” campaign is unlikely to succeed without a guarantee by government that restrictive legislation would follow. And this legislation would have all the same problems I’ve outlined above – which might seem to undermine my whole argument. But restrictive legislation is much easier to deal with than a restrictive constitutional provision. It would be subject to constitutional challenge, and vulnerable to European pressure if the EU and ECtHR come to recognise abortion as a fundamental right (which I believe they eventually will). It could, of course, also be overturned by a progressive future government, though I may be overly optimistic about the possibility of us ever getting that.

I’ve mainly addressed the rape exception here, and I know not all these arguments apply to fatal foetal abnormalities. If the referendum proposal was limited to that I would find it more difficult to argue against (though some of my objections would still hold). I’m also aware that X legislation could equally be opposed on some of the grounds above, but X deals with life-and-death circumstances. I think it’s reasonable to put aside principled and tactical objections to incrementalism where the alternative is that a person actually dies.

And after the farce that the X legislation turned out to be, one thing should be obvious to everyone who supports abortion rights: we will never get anything meaningful as long as 40.3.3 remains. Our legislators will always feel the need to err on the side of protecting the foetus – so even if additional exceptions are carved out, the barriers to availing of them will be prohibitively high to many of those they’re intended to cover. And we’ll be left with a Constitution that further reinforces a value judgment as to who “deserves” an abortion, and less hope than ever of any real change.

The only tenable solution is repeal. We should not stand for anything less.

Anti-choice spinning of California’s 1967 abortion law

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We’ve heard a lot lately from anti-choice campaigners about California’s 1967 Therapeutic Abortion Act. It’s being cited to support the argument that legislating for the X case – to allow abortion where a pregnant woman’s life is at risk, including by suicide – will inevitably open the floodgates and effectively allow abortion on demand.

One example is this Tweet from the Pro-Life Campaign’s Cora Sherlock:

Subsequently, an email circulated to Oireachtas members by a group of anti-choice politicians (parts of which were published in this Irish Independent article) claimed that the California law

was enacted in 1967 on the strict grounds of ‘where the mother was a danger to herself’

And then on the Vincent Browne show the other night, Dr Patricia Casey said that under the law, the woman had to be “certifiable”.

Three different claims about the California law. All wrong.

The actual text of the law was found in §25951 of the California Health and Safety Code. It allowed abortion where a committee, established by the hospital performing the abortion and consisting of at least two licensed physicians and surgeons (or at least three after the 13th week of pregnancy), found that there was

a substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother

“Mental health”, meanwhile, was defined in §25954 as

mental illness to the extent that the woman is dangerous to herself or to the person or property of others or is in need of supervision or restraint

Right away, we see that the text is logically problematic – how on earth can “mental health” be defined as “mental illness”? – but we don’t need to spend time on that. The more important thing is what the legislators intended in this requirement. Clearly Cora Sherlock got it wrong, because there’s no need that the woman actually be at risk of suicide, and the Oireachtas group also got it wrong, because the element of danger to herself is only one of the possible criteria under the law.

Dr Casey is closest to the truth, but even she is not quite correct. The text is based on an old standard under which a person could be deemed “certifiable” (a term I find a bit offensive, personally, but we’ll put that aside for now) but there is a crucially important difference. The old standard – which was found in §5550 of California’s Welfare and Institutions Code – allowed for involuntary commitment where a person was

dangerous to themselves or to the person or property of others, and are in need of supervision, treatment, care or restraint

What’s changed there is that the “and” was replaced by “or” for the abortion law. To be committed, a person had to be both dangerous and in need of supervision or restraint; to be allowed an abortion on mental health grounds, either was sufficient. So clearly, a lesser threat to mental health was required than that the woman would need to be institutionalised.

Still, it is a fairly high standard, and the anti-choicers are right when they say it was given a much broader interpretation in practice.  But it still doesn’t follow that the Irish law would do the same thing. For one thing, any way you look at it, “dangerous to herself or to the person or property of others or … in need of supervision or restraint” lends itself to a much looser interpretation than “at real or substantial risk of suicide”. (In fact, the California law was struck down as unconstitutionally vague in 1972 – two months before Roe v Wade – precisely because it had proven impossible for doctors to agree on what these criteria meant.)

For another thing, the California law operated in California. California isn’t Ireland, and it always took a more permissive attitude toward abortion. Even before the 1967 Act, it wasn’t actually difficult to get an abortion there – though the standard of care varied widely depending on the quality of provider the woman could afford. Women didn’t need to travel for abortion as they do in Ireland, where doctors are simply not willing to breach the law. It’s unlikely to the point of absurdity that the flexible interpretation applied by California doctors will be repeated here.

A comparable situation is the way that abortion laws are interpreted in Britain and Poland. On paper, the two countries have a pretty similar regime: both allow abortions in case of fatal foetal abnormality or risk to life or health. In practice, however, they couldn’t be more differently applied: Britain, as we all know, is more or less effectively abortion on demand, while Poland is regularly hauled before the European Court of Human Rights for denying even crystal-clearly legal abortions (and in the most appalling circumstances too; the latest example, P and S v Poland, reads like something Franz Kafka might have written with Margaret Atwood). Cultural views, and the constitutional context, have a huge impact on how liberally abortion laws are interpreted – and Ireland is far closer to Poland than Britain in this respect.

The increasing calls of the Irish pro-choice movement to repeal the 8th Amendment are a reflection of this. If legislating for X really would “open the floodgates” and allow abortion on demand, there’d be no need to amend the Constitution. When the legislation gets through eventually, and it will, we will see how little impact it really has on the abortion rate in Ireland. And then we can get on with campaigning for real change.

Free Clothes*

Free Clothes*

*By “free” I mean “you have to give Choice Ireland a fiver first.”

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Savita, abortion and the right to health in international law

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Commentary around the Savita Halappanavar inquest has, understandably, focused on the Irish constitutional law context but I haven’t seen much discussion about the breach of her rights under international law.

This is perhaps unsurprising, as abortion itself has a nebulous standing in international human rights law. As its opponents never tire of pointing out, it isn’t protected per se in most of the world’s major human rights treaties. The only real exception is in the 2003 Maputo Protocol to the African Charter on Human and People’s Rights – that continent’s counterpart to the European Convention – which sets out in Article 14(2):

States Parties shall take all appropriate measures to:

(c) protect the reproductive rights of women by authorising medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus.

None of the human rights treaties to which Ireland is party even mention the word “abortion”, though that doesn’t mean they can’t protect the right in limited circumstances. The obvious example of this is the European Court of Human Rights decision in ABC v Ireland, which held the State in breach of an applicant’s right to her private life for failing to provide a clear mechanism by which she could establish and exercise her right to a legal abortion. This is similar to the way that other treaty monitoring bodies have approached the issue, such as the UN Human Rights Committee in KL v Peru and the CEDAW committee in LC v Peru. In both cases, the decision wasn’t that there was a right to abortion per se in the relevant treaty (respectively, the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Discrimination Against Women), but that the particular abortion sought would have been legal under state law and thus various treaty provisions were breached by denying the petitioner access to it.

But what I want to talk about here is a more general right – namely, the right to health, and how it was breached in Savita’s case. The right to health is protected in a number of treaties that Ireland is party to, most importantly under Article 12 of the International Covenant on Economic, Social and Cultural Rights. Then there’s CEDAW, mentioned above, which has its own Article 12 protections for women’s health, while in the European Social Charter, “The right to protection of health” is set out in Article 11. It’s important to realise that these treaties are all fully binding on Ireland as a matter of international law. There’s often confusion on this point, because Ireland has a “dualist” system which means a treaty isn’t domestically enforceable unless it’s incorporated into national law by the Oireachtas (as with the European Convention on Human Rights Act 2003). You can’t go down to the High Court to sue the State for breaching your ICESCR rights – in fact, at the moment you can’t go anywhere. But it’s still legally obliged to protect them, even though there’s not much you can do if it doesn’t.

In and of itself, the fact that Savita died wholly avoidably in a public hospital proves the State’s failure to protect her right to health. If her death really had been due only to the “system failures” we keep hearing about, then perhaps we could chalk it down to a one-off, individual failure. But the more we hear from the inquest, the more apparent the truth becomes: the breach is in the law itself, not merely the way it was implemented or (mis)understood by her medical team. In fact, even if she had survived – and I know of a few women in similar circumstances who, thankfully, did – her right to health would still have been violated. Ireland’s ban on abortions in all but life-threatening cases will inevitably violate the right to health in those cases that fall short of the “real and substantial risk” threshold set by the Supreme Court. Here’s why.

The most widely-accepted definition of the right to health – the Article 12 ICESCR definition – is the “right to the highest attainable standard of physical and mental health”. The General Comment on this right by the treaty’s monitoring body, the Committee on Economic, Social and Cultural Rights, goes quite a bit further in defining that to include “the right to control one’s health and body, including sexual and reproductive freedom”. This is a fairly unambiguous, though legally non-binding, interpretation. But we don’t even have to go there, because on the plain terms of Article 12, you cannot enjoy the highest attainable standard of health if you’re denied an abortion that you need for the sake of your health. Simple as – and there’s no getting around it by hypothesising whether Physical or Mental Condition X would entitle someone to an abortion under this rule. Yes, there may be cases where it’s uncertain if abortion really is indicated for health reasons, but that’s completely beside the point: Irish law doesn’t allow for any of them if you aren’t considered likely to die otherwise. An absolute prohibition on “therapeutic” abortions for non-life threatening cases is not made compatible with the right to health just because it’s not always easy to determine who needs a therapeutic abortion.

“But rights aren’t absolute”, I hear you say. Well no, they aren’t, but when they’re guaranteed in a legally-binding treaty they can only be limited under the terms set out in that treaty. The ICESCR limitations clause, Article 4, states that the rights can be subjected

only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.

Now, admittedly, this is a bit woolly, and a casual reading might well lend itself to a utilitarian interpretation, or suggest that a society which considers abortion a generally bad thing could legitimately consider an abortion ban to promote society’s general welfare. It’s not an absurd argument, on its face.

But it’s also not supported by the aids we have to interpret the meaning of the text. The Convention’s travaux préparatoires – the official records of the negotiation process (not online, but detailed in this book) – don’t exactly explain what the drafters of Article 4 had in mind. They do, however, show the rejection of various proposals to include grounds of public order, public morality and the interests of the community – all things which might suggest a person’s rights could be trumped in the interests of some aspirational “greater good”. The CESCR, for its part, states that Article 4

is primarily intended to protect the rights of individuals rather than to permit the imposition of limitations by States

which would mean that the State has a heavy burden of proof in justifying any such limitations.

In Irish law, of course, this is met by Article 40.3.3’s protection of “the right to life of the unborn”. But that won’t cut it in international law, because there is no right to life of the unborn in international law.  (As with the “right to abortion”, there is one exception, but it’s in a treaty that Ireland isn’t party to – the American Convention on Human Rights). And again, in terms of the treaties we’ve ratified that protect the right to life – the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the European Convention on Human Rights – there is either travaux or case law leaving the foetus out of this protection. (This nifty fact sheet from the Center for Reproductive Rights has lots more detail about this.) So the balancing exercise that would be required to make the denial of therapeutic abortion compatible with the ICESCR is, in international legal terms, simply a nonsense. There is no legal “individual” to balance the woman’s rights against.

There’s another way in which I think Savita’s right to health was infringed, and that’s in the discriminatory way her health needs were dealt with. Article 2 ICESCR requires that the Covenant’s rights be protected “without discrimination of any kind”. Patently, there was discrimination in her case: she was treated differently because she was pregnant. A non-pregnant person would not have had a medically-indicated course of action refused to them at a time of comparable need. There may also be an issue around the antibiotic she was given, which wasn’t strong enough but was “recommended for use in maternal cases”. I’ve found the newspaper reports on this a bit unclear, and I’m not sure whether she was purposely given a weaker antibiotic because she was pregnant, or whether the staff simply didn’t realise, when they gave her the one they always give the pregnant women, that her infection needed a stronger dose. If it’s the former, then she clearly received discriminatory treatment – especially given that it was already known her foetus wouldn’t survive and anyway, she’d already asked for an abortion. The use of less effective medication in the interests of foetal health may certainly be justified, with the woman’s consent, in a wanted and viable pregnancy. But this wasn’t one of those cases.

I said earlier that there’s no place we can go to complain about a breach of the Covenant on Economic, Social and Cultural Rights. Well, that could change in the near future. The Covenant’s Optional Protocol, which allows individuals to bring complaints to the treaty’s monitoring body, will come into force on the 5th of May. Ireland has yet to ratify the Protocol, but it did finally sign it last year and ratification is the next step. Again, since this is international law, the CESCR won’t have enforcement powers – but there’s plenty of potential to shine the world’s spotlight on Ireland, and how it fails to adhere to its international obligations. Abortion rights campaigners should call for the government to ratify the Protocol now.

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