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Monthly Archives: February 2012

Rape, Pregnancy, and Abortion in Ireland.

The Rape Crisis Network Ireland has released a statement today detailing statistics concerning pregnancies resulting from rape, as well as the number of those women that chose to terminate their pregnancies. It is a timely item for discussion given the recent publication of Medical Treatment (Termination of Pregnancy in Case of Risk to Life of Pregnant Woman) Bill 2012, and the fact abortion is once again, on the minds of many. In saying that, the release of this statement in the context of this legislation demonstrates just how far behind Ireland is – this legislation, if passed, would not actually allow for abortion in cases where the pregnancy was a result of rape.

When pregnancy and rape come up in discussions, anti-choice activists tend to be fairly consistent in their willingness to withhold access to abortion for women when they have been raped, and they tend to anchor their argument in the idea that because pregnancy as a result of rape is “rare” that this somehow means that a woman who has been violated in the first instance should have her body further violated by being forced to carry to term the pregnancy of her rapist. The real meaning of that kind of rhetoric is, “Pregnancy from rape is rare; and you do not own your body anyway; therefore you will not make choices as to what happens with it.”

But even if the assertion that pregnancy from rape is rare was correct, the rarity of a pregnancy does not mean that it is a valid reason to withhold access to abortion for a rape survivor. It is bad enough that anti-choice lobbyists do not believe in the most basic self-determination of a person that would afford a woman a choice as to what happens her body normally, but it really does take a special kind of person to tell a rape victim that she should be compelled to carry a pregnancy of rape to full term against her will.

The RCNI Director Fiona Neary has said of the statistics,

“The RCNI would have concerns that any rape survivor would be subject to restrictions and would have to travel oversees to another jurisdiction in order to access a termination….. RCCs will continue to support survivors in making decisions which survivors feel are the right choices for their circumstances.”

The statistics are so disturbing they deserve to be reproduced here in their entirety;

“In 2010 1,545 survivors of sexual violence attended Rape Crisis Centres (RCCs). Of these, a small number became pregnant as a result of rape; in total 75 girls and women. These girls and women made different choices:

Ten survivors of rape chose to terminate their pregnancies (13%)

Ten survivors chose to place their child for adoption or fostering (13%)

Forty three survivors went on to parent their children (57%)

Nine survivors of rape miscarried or had stillbirths (12%)

Three survivors became pregnant more than once as a result of rape and chose different options in each pregnancy (4%)….”

What is important to note about these statistics is not only were there 75 girls and women who were made pregnant as a result of rape, this figure only represents the number of women who attended Rape Crisis Centres over the course of one year.

This of course does not reflect the total figure of women who were raped during 2010 and did not attend a Rape Crisis Centre – which is much higher, and which would logically leave the figure of pregnancy resulting from rape higher again, and in turn increase the figure of the number of women who went on to choose a termination in this scenario. These numbers may be small, but that does not mean that the experience or trauma of their rape and subsequent pregnancy is somehow lessened by that.

Naturally, for the forced-birth advocates of the anti-choice movement this trauma is utterly meaningless.

Why the X Case legislation is not the 1967 British Abortion Act

Never ones to miss an opportunity to criticise the pro-choice lobby, the Sunday Independent contained a piece by Eilis O’Hanlon yesterday where she managed to say that although it was “absurd that governments have failed to legislate” on the X Case and that she tended “towards the pro-choice end” of the spectrum of views on abortion, that there was an element of intellectual dishonesty regarding the Bill currently being tabled by Clare Daly TD  and then went on to assert that by enacting this legislation for X Case, more specifically allowing for suicide as a ground for abortion, would lead to a situation similar to England – where abortion is available in a very wide range of grounds (It is not “on demand” as O’Hanlon would have you believe – one must fall in to a qualifying risk category in order to avail of an abortion service). In the article, O’Hanlon says;

“Once they have it in law that abortions can be carried out where the mother’s life is at risk, they immediately start redefining the definition of risk until it becomes meaningless. Daly’s bill explicitly states that the risk of suicide by a mother should qualify as a reason for providing her with an abortion.

The end result, as happened in the UK, is that you would effectively have abortion on demand…” [Emphasis mine]

In fairness to O’Hanlon, she does not actually state that she is against the legislation, but she does do a very good job of trotting out the same tired old arguments against legislation for the X Case trotted out by the anti-choice lobby.

There are multiple problems, myths and lies peddled in the O’Hanlon piece but it is probably more useful to look at the one quoted above in particular, and examine Deputy Daly’s proposed legislation in detail in comparison to the law governing abortion in Britain – the Abortion Act 1967, as this is one of the main arguments being put forward by the less rational and even lesser informed of the commentariat against the Daly Bill; that is to say, if abortion is allowed in any circumstance it will allow abortion by the backdoor.

That is a factually incorrect assertion.

Before looking at the detail of the British legislation, it also may be worth noting the logical outworking of O’Hanlon’s statement here.

Either she is suggesting that a woman could be suicidal and should not be allowed a life-saving abortion in those circumstances where to continue a pregnancy would pose a risk to her life or she is implying that not only would women (under this legislative framework) would enter their doctor’s surgery and fake suicidal tendancies to get an abortion, but also that a either a Consultant Psychologist and a GP, or a Consultant Psychiatrist and a GP, or in a (fake) emergency situation, two GPs, would all happily engage in this ruse so that a woman faking suicidal feelings could have an abortion.

If this is not the implication, then the alternative is that her implication is women (under this legislative framework) would enter their doctor’s surgery and fake suicidal tendancies to get an abortion, but also that a either a Consultant Psychologist and a GP, or a Consultant Psychiatrist and a GP, or in a (fake or real ) emergency situation, two GPs, are not actually qualified to state whether she was suicidal and assess the risk to her life, and that they would err on the side of caution and provide the abortion.

This displays a lack of knowledge of not only medical practice in Ireland, but also medical culture, that renders anything else said on the issue by O’Hanlon as automatically suspect (she also repeats the myth that Ireland is the safest place in the world to go through pregnancy so it was suspect from the beginning anyway).

The Irish health system certainly has its problems, but if O’Hanlon has a genuinely held view that there are legions of GPs, Consultant Psychologists, and Consultant Psychiatrists out there all waiting in the wings to carry out abortions at the drop of a hat when they have no medical basis for doing so (because the risk to the life of the pregnant woman, in O’Hanlon’s world, is not real), and breaking the law in the process and leaving themselves open to prosecution under Sections 58 and 59 of the Offences Against the Person Act 1861 (carrying a penalty of 3 years imprisonment) – then perhaps the real story that the Sunday Independent should be covering is the major inadequacies or the mass malpractice of the medical profession, rather than O’Hanlon’s issues with the pro-choice lobby.

All of that aside, it is clear to anyone who takes the time to read both pieces of legislation in detail that the British Abortion Act 1976 and the Deputy Clare Daly’s Medical Treatment (Termination of Pregnancy in Case of Risk to Life of Pregnant Woman) Bill 2012 are very, very different pieces of legislation – the latter being constitutionally prohibited from providing qualifying circumstances for abortion beyond that where a woman would die if she continued her pregnancy.

Comparing and Contrasting the Legislation

  1. 1.    Circumstances under which medical termination is lawful

The 1967 Abortion Act establishes that abortion is legal in Britain up to the 24th week of pregnancy in a very broad range of circumstances, that is – where the continuance of pregnancy would involve risk to her (including to her physical and mental health) or risk to her existing children etc. In essence, this means that abortion may lawfully be performed where a woman would be better off, subject to the opinions of two doctors (who need not be of consultant rank), by having an abortion than continuing the pregnancy. However, if there is a substantial risk to the woman’s life or if there are foetal abnormalities, there is no time limit. It is important to note the clear distinction between a risk to the life of the pregnant woman, as opposed to a risk to her health. In order to comply with the 1967 Abortion Act, two doctors must give their consent to the procedure, stating that to continue with the pregnancy would present a risk to the physical or mental health of the woman or her existing children. This Act does not extend to the North of Ireland.

The proposed X Case legislation however, is much narrower. Were it to be enacted in its current form, it would allow for a lawful abortion to take place only where there is a real and substantial risk to the life of the pregnant woman according to either a GP and psychiatrist, or a GP and psychologist or two GPs in the absence of being able to secure the opinion of a psychologist or consultant (allowing for an emergency situation). This includes a risk of suicide. It does not allow for abortion in cases where there is a risk to her health in general, or her mental health, or where the continuance of a pregnancy involves a risk to her existing children, or where there are foetal abnormalities.

This legislation is drafted in order to solely give effect to the Supreme Court judgment in the X Case in 1992. On the basis of the X Case judgment, it does not include a time limit to prevent abortions from taking place, presumably because as to do so would be to automatically render the Bill unconstitutional i.e. the judgment held that a woman had a constitutional right to abortion in a case where there was a real and substantial risk to her life, including threat of suicide, and to introduce a time limit on this would be to undermine the Court’s decision in that – clearly a real and substantial risk may appear after any given time limit and to adhere to a time limit in that circumstance and deny her the procedure, would be to infringe upon the constitutional rights of that woman.

1967 Act

 (1)Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith—

[F1(a)that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or

(b)that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or

(c)that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or

(d)that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.]

(2)In determining whether the continuance of a pregnancy would involve such risk of injury to health as is mentioned in paragraph (a) [F2or (b)] of subsection (1) of this section, account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.

2012 Bill

4.―(1)  It shall be lawful for a medical practitioner to provide any form of medical treatment to a woman, despite its consequences for the life of the foetus, provided that―

 (a)  two medical practitioners have each formed an honestly held and reasonable belief that there is a real and substantial risk to the life of that woman, other than through suicide or another condition ordinarily diagnosed and or treated by a consultant psychiatrist or a clinical psychologist which can be averted only by the provision of that medical treatment, or

(b) there is a real and substantial risk to the life of the woman through suicide or another condition ordinarily diagnosed and or treated by a consultant psychiatrist or a clinical psychologist as determined by―

(i) one medical practitioner and one consultant psychiatrist, or

(ii) one medical practitioner and one clinical psychologist, or

(iii) , in the absence of an available consultant psychiatrist or a clinical psychologist and to prevent undue delay in the examination and or treatment of the woman, two medical practitioners,

who have formed an honestly held and reasonable belief that there is a real and substantial risk to the life of that woman which can be averted only by the provision of that medical treatment.

  1. 2.    Notification of medical terminations

Section 2 of the 1967 Act requires the Minister for Health in respect of England and Wales, and the Secretary of State in Scotland to introduce Statutory Instruments in order to, stipulate the medical practitioners who may carry out medical terminations; requires that the number of terminations be recorded; prohibits the disclosure of these recordings where they are not pursuant to the regulations; set out an offence where a person wilfully contravenes the regulations.

There is no equivalent provision in the 2012 Bill. However there is a provision that stipulates the medical practitioners who may certify whether there is a real and substantial risk to the life of a pregnant woman, including whether she is suicidal. It is presumable that statistics and data regarding the number of lawful terminations carried out, were the Bill passed, would be required either by the introduction of a Statutory Instrument, or HSE Guidelines.

  1. 3.    Conscientious objection to performing medical treatment

There are conscientious objections clauses in both pieces of legislation although they are framed somewhat differently. The 1967 Act stipulates that no person is under a duty to participate in the provision of this medical treatment where they have a conscientious objection. If this is to be tested in the courts, the burden of proof rests on the person attempting to claim it, except in the case of Scotland, where having sworn an oath to this effect will discharge the burden of proof in law. The conscientious objection does not apply where there is an immediate risk to life of the woman.

The 2012 Bill also provides a conscientious objection to participating in providing this medical treatment; however it stipulates that it must be an “honestly held and reasonable objection” to the provision of such treatment. This would initially appear to hold a slightly higher legal threshold of proving the validity of a conscientious objection, in that it must be both honestly held and reasonable in order to avail of it. However, there is no requirement on the burden of proof to be placed on the person attempting to claim it, so presumably normal proceedings under Irish law would apply – as in, the burden of proof would rest with the State in any legal proceedings and it would fall to the State to prove that a person did not have an honestly held or reasonable belief in proceedings where the conscientious objection is in question.

The conscientious objection does not apply where there is an immediate risk to life of the woman. Further to this, the individual objecting to participating in treatment must provide information to a woman about her right to such the treatment, and transfer the care of the woman to another practitioner who will perform the treatment. This may appear more onerous than the formula in the 1967 Act, however it goes on to require every health institution to have the number of required personnel in order to provide the treatment.

Therefore, it would appear unlikely that this conscientious objection provision would ever be tested in the Courts at all unless a case arose where (1) a hospital did not have the required staff on duty to perform a termination and (2) an on-duty Doctor raised a conscientious objection to participating in medical treatment where a pregnant woman presented with an real and substantial risk to her life resulting in the need for an abortion and (3) this woman actually died as a result of not receiving the required treatment resulting in (4) criminal proceedings or medical negligence proceedings being issued against the Doctor as a result of the failure to provide the emergency treatment resulting in the woman’s death and (5) the Doctor raised the conscientious objection clause to participating in the treatment as a defence in those proceedings.

Given the absence of legislation for the provision of lawful abortion where it is legal under the Constitution, this Bill if enacted would probably provide more protection for a medical practitioner who did not wish to participate in provision of such treatment; i.e. There would now be a legislative framework on the basis abortion is lawful under the Constitution in a case where there is a real and substantial risk to the life of a woman, meaning that were a pregnant woman to possess a real and substantial risk to her life and treatment were withheld due to the ethical objection of a doctor (despite the risk), leading to her death, the medical practitioner would be liable for her death due to medical negligence as there is currently no compulsion on a hospital to provide staff who will provide this service that would render the situation where the potential test of a conscientious objection clause in the courts unlikely.

1967 Act

(1)Subject to subsection (2) of this section, no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection:

Provided that in any legal proceedings the burden of proof of conscientious objection shall rest on the person claiming to rely on it.

(2)Nothing in subsection (1) of this section shall affect any duty to participate in treatment which is necessary to save the life or to prevent grave permanent injury to the physical or mental health of a pregnant woman.

(3)In any proceedings before a court in Scotland, a statement on oath by any person to the effect that he has a conscientious objection to participating in any treatment authorised by this Act shall be sufficient evidence for the purpose of discharging the burden of proof imposed upon him by subsection (1) of this section.

2012 Bill

5.―(1) No individual directly involved in the provision of medical treatment provided for in this Act shall be under a duty or be placed under a duty, whether by contract or otherwise, to participate in the provision of such medical treatment if he or she has an honestly held and reasonable objection to so doing―

(a) provided that his or her refusal to participate in the provision of such medical treatment does not cause an immediate risk to the life of the woman, and

(b) provided that, in the case of a medical practitioner who has an honestly held and reasonable objection to participation in the provision of any medical treatment provided for under this Act, such a medical practitioner shall―

(i) provide all relevant information to the woman about her right to such medical treatment,

(ii) where another medical practitioner is competent and readily available to participate in the provision of such medical treatment, refer or transfer the woman to the care of that other practitioner, or

(iii) participate in any medical treatment provided for in this Act where such medical treatment is immediately necessary to save the life of the woman and where no other competent medical practitioner is available to perform such medical treatment.

(c) Notwithstanding the provisions of this subsection, it shall be the duty of every health institution to ensure that the necessary number and category of personnel, both medical and non-medical, are made available and are not obstructed in the provision to a woman of such medical treatment as is provided for in this Act.

      (2) No institution, organisation or third party shall refuse to provide medical treatment to a woman under the terms of this section.

Supplementary Provisions of the 1967 Act and the 2012 Bill

Sections 5 and 6 of the 1967 Act are technical provisions that state that any termination performed that do not fall within the criteria of Section 1 of the 1967 Act are deemed unlawful terminations according to the provisions set out in the Offences Against the Person Act 1861. Section 3 (1) of the 2012 Bill contains a similar provision and states that any termination that does not fill the clear criteria set out in the Bill is unlawful under the provisions of the Offences Against the Person Act 1861.

Section 3 (2) of the 2012 Bill has the effect of repealing section 6 of the Regulation of Information (Services Outside State for Termination of Pregnancies) Act 1995, which prohibits persons supplying information on abortion from having any “interest, direct or indirect” in any clinic offering abortion services outside the State. Given the differing abortion law in Britain, there is no equivalent in the British legislation.

Capacity to consent to treatment by a minor

Section 6 (3) of the Bill stipulates that provided a minor who satisfies the criteria set out in the Bill for undergoing a lawful termination, may receive this treatment without the validation of her parents or guardian.

The 1967 Act does not explicitly deal with minors and consent, however in Britain, 16 and 17 year olds can consent to medical treatment without it being overruled by their parents and minors under 16 can consent to treatment provided they have the intelligence to understand what they are doing. The medical law used to assess whether a person under 16 has the capacity to consent to treatment was set out by Lord Fraser and Lord Scarman in the House of Lords in the Gillick judgment, which indicated the circumstances under which a minor may undergo treatment.[1]

The test of whether a minor can consent to medical treatment or not is often referred to as the test of “Gillick competency.”  Lord Scarman stated;

“…it is not enough that she should understand the nature of the advice which is being given: she must also have a sufficient maturity to understand what is involved.” He stated further; Parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision.”

The implication of this judgment is that where a minor has the capacity to consent, they may do so – a sensible enough approach to the area of consent to any medical treatment by a minor.

Abortion on demand? Certainly not.

All of that aside, it is unlikely it will even make it past the first Dáil vote and enter Committee Stage, let alone be passed in its entirety – given that that this is the Government is still awaiting feedback from the Expert Group on Abortion, combined with an unwillingness to legislate for X anyway, despite long-standing commitments to do so from Labour..

 However, the Medical Treatment (Termination of Pregnancy in Case of Risk to Life of Pregnant Woman) Bill 2012 will clearly not allow for abortion in the range of circumstances as set out by the 1967 Abortion Act, and it is either foolish or wilfully misleading for the likes of Eilis O’Hanlon to try and say it will.

[1] Gillick v West Norfolk & Wisbech Area Health Authority [1985] UKHL 7 (17 October 1985).

Thoughts on last night’s Prime Time

RTÉ’s Prime Time did a special last night on “Profiting from Prostitution”. It focused on the organised brothel sector, which mainly involves migrant women from non-EU countries, and as you might expect the situations of the women depicted in it ranged from dodgy to horrifying. It’ll no doubt be a major topic of discussion in the country today, so here are my two cents about it.

First, it’s worth recalling that what the programme depicted is already illegal. It’s illegal to run a brothel in Ireland. It’s illegal to knowingly profit from another person’s prostitution in Ireland. It’s illegal to advertise commercial sex in Ireland. So the kneejerk reaction that what we need are more criminal laws doesn’t really stand up to scrutiny. Perhaps if the police did not spend so much time targetting sex workers who flat-share they would be in a better position to go after these genuine abuse cases.

Secondly, there was a complete lack of any contextualisation of migrant women’s options in Ireland. Absolutely nothing was said about the fact that these are, by and large, women with nowhere else to go because they cannot legally work in Ireland. At one point the journalist asked “Why don’t they try to escape?” and I thought, surely now, it will be pointed out that “escaping” for them means a one-way ticket back to their country of origin – but no, not a word. The answer that was given instead focused entirely on fear of the person(s) controlling them, and while I have no doubt many of them are in such fear, it is hardly likely that is the whole story. New York’s Urban Justice Center published a report on the use of raids to fight trafficking, and interviewed many of the women “rescued”; they found that even those who appreciated the law enforcement intervention (which many didn’t) said that they would have left their situation voluntarily if only they knew where they could go. This is likely to be the case also for many of the women in Ireland, and it’s a major hole in the programme that it did not even consider it.

The programme also played to an anti-immigrant agenda, which unfortunately was reflected in some of the comments posted about it on Twitter. Here’s just one example:

While there was no explicit mention of the Swedish model, the programme concluded with the cliché that “none of this would exist if there wasn’t demand by Irish men”. The implication of this, clearly, is support for end-demand policies along the lines of those in Sweden. It’s worth highlighting what those policies have actually meant, in the context of “profiting from prostitution”:

According to one informant in Göteborg, there are probably more pimps involved in prostitution nowadays. The informant says the law against purchasing sexual services has resulted in a larger role and market for pimps, since prostitution cannot take place as openly.

A woman engaged in indoor prostitution in Göteborg relates that when the law took effect in 1999, about ten women engaged in prostitution from various Eastern European countries approached her business because they wanted to hide indoors. Informants from the Stockholm Prostitution Centre also mention that the law has opened the door to middlemen (pimps), because it has become more difficult for sellers and buyers of sexual services to make direct contact with one another. – Swedish National Board of Health and Welfare, Prostitution in Sweden 2007, pp 47-48.

Now contrast this with the situation in New Zealand, which largely decriminalised its sex industry in 2003 and now allows up to four sex workers to share premises without becoming subject to brothel licensing laws:

Some brothel operators report difficulty attracting staff to work in brothels…Some brothels have closed down with operators citing the lack of staff and increasing competition for workers because of sole operators/SOOBs [Small Owner-Operated Brothels], as reasons for the failure of their business. – Report of the Prostitution Law Review Committee on the Operation of the Prostitution Reform Act 2003 , p 38

It is also worth pointing out that the facile reduction of the economics of commercial sex to “no demand = no prostitution = no trafficking” has been questioned by a number of studies, one of the most important of which is Bridget Anderson and Julia O’Connell Davidson’s Trafficking – a Demand led Problem? Of course, artificial demand can be created in any market, and it would be foolish to expect the sex industry to be any different – but then, I’m regularly amazed at how often sex work is considered to be immune from ordinary economics principles.

One final note. While the faces of the women in this programme were blurred, I have absolutely no doubt that most of them could be easily identified by the people who know them, and unquestionably by those they are working for. I would have real fears that the people controlling some of these women could decide to punish them for the things that they said. I don’t know what, if anything, RTÉ is doing to try to avert this possibility but it has a responsibility to ensure that the innocent subjects of its investigations do not suffer harm as a consequence – and if it does not live up to that responsibility, it must be held to account.

Cynthia Nixon, choice and queerness

Posted on

Aoife and Ariel on Cynthia Nixon, Choice and Queerness:

Why can’t a woman get a life-saving abortion in Ireland?

Ireland has produced many brave and influential women whose lives have helped change Irish society, but it’s a tragic irony that one of those who’s had the biggest impact – and sparked the longest-running controversy – is someone whose name we don’t know, who was only 14 when she came to our (and the world’s) attention and who you can bet would have given anything to have never been heard from in the first place.

She’s known as Miss X, and 20 years ago she was raped and impregnated by a much older family “friend”. Ireland is still governed by 1861 (!) legislation which makes abortion a crime punishable by life imprisonment, so her parents took her to England. When they contacted Irish police to ask if the embryonic remains might be useful as evidence, the police contacted the Attorney General, who promptly sought an injunction to compel her to return to Ireland and remain for the next nine months.

This astonishingly cruel and repressive act was “justified”, according to the Attorney General, by Article 40.3.3 of the Constitution. Passed by referendum in 1983, the Article reads:

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

Miss X, however, was threatening suicide if she was forced to bear her rapist’s child and so her lawyers argued that her own right to life – also protected by Article 40.3.3 – was engaged. In the High Court, Justice Declan Costello (who was eulogised on his death last year for his commitment to social justice) applied a crude balancing test to reach his decision: if Miss X was forced to continue the pregnancy, she might die, but if she was allowed an abortion the foetus would die. He thus granted the injunction barring her from travel.

On appeal, the Supreme Court took a different approach: a majority deemed abortion permissible under Article 40.3.3 where it is established, as a matter of probability, that there is a real and substantial risk (not necessarily an immediate or inevitable one) to the woman’s life. The risk of suicide, it held, fell within these exceptional grounds.

The government responded to the decision – and the controversy engulfing Irish society – by putting three more referenda to the people (the Irish Constitution can only be changed by referendum). One would have overturned the X decision to the extent that it deemed suicide a risk entitling a woman to an abortion. The second would clarify that Article 40.3.3 did not impinge on the freedom to travel outside the state – a necessity since a majority of the Supreme Court had also felt that the rights of the “unborn” would supersede the right to travel where there was no risk to the pregnant woman’s life. The third aimed at resolving another ongoing controversy, allowing information to be made available about legal abortion services outside the State.

The Irish people voted sensibly, around two-thirds defeating the first referendum and slightly smaller majorities passing the other two. This still left the State with one of the most restrictive abortion laws in Europe, however – and the cowardice of successive governments, in refusing to legislate for the decision, means that 20 years on we still don’t know exactly what it means in real terms. How is it to be determined whether a pregnancy poses a real and substantial risk to life? Who gets to decide? And what remedies are available to a woman denied an abortion despite believing she falls within the criteria set out in X?

There are no answers to these questions – and the consequences for some women are dire. In 2010, a woman named Michelle Harte from County Wexford, a cancer patient, was advised by her doctors at Cork University Hospital that she should have an abortion because of the threat posed by her pregnancy. However, the hospital ethics committee – which apparently did not read the X judgment very carefully – overruled this advice, deeming the risk to her life insufficiently “immediate”. The identity of those on this “ethics committee” is unclear, but it is stated to include a number of non-medical people, including some with “theology and philosophy backgrounds”. What kind of bullshit policy allows theologians to overrule doctors’ decisions about the medical risk to someone’s life?

Another woman harmed by the lack of legislation in this area is known to us as “C”. She was one of three plaintiffs who challenged Ireland’s abortion laws before the European Court of Human Rights, which found in her favour (although not in the other two’s) in December 2010. In a ruling that was entirely predictable after the 2007 Tysiac v Poland case, the ECHR held that Ms C’s Article 8 (private and family life) rights had been breached by the State’s failure to make abortion actually available in the extremely limited circumstances where it is legal. (Ms C, like Michelle Harte, was a cancer patient; she testified that she could not even get medical advice on the risks posed by her pregnancy, such was the chilling effect of the anti-abortion criminal law.)

The State is obliged to abide by the rulings of the ECHR (although there is little in the way of enforcement mechanisms) and so, as a practical matter, it has one of two options. It can either amend the Constitution to remove the “due regard to the equal right to the life of the mother” clause – thereby making abortion illegal even to save a woman’s life – or it can set out a clear and transparent mechanism, with a proper appeals procedure, for women who believe they meet the X criteria.

To readers outside Ireland, the fact that this even poses a dilemma for the government must seem indescribably bizarre – something you might expect to find in the Taliban’s Afghanistan or Khomeini’s Iran, but not in an ostensibly modern, advanced OCSE country in northwestern Europe. And in fact, it’s pretty bizarre to us too. A referendum to remove the right to a life-saving abortion hasn’t a hope of getting past an Irish public that believes by almost nine-to-one that such abortions should be legal. It’s notable that in the two referenda that have attempted to roll back the X decision – the one immediately following the judgment in 1992, and a second one a decade later – it was only the eligibility of potential suicides that was at issue; the possibility of taking the right away from women facing other risks to their lives, women like Michelle Harte and Ms C, wasn’t even contemplated. Why on earth would it be contemplated now?

And so, as Choice Ireland noted several months before that predictable ECHR decision, the Irish anti-abortion movement have taken a different tack: they’re now picking a fight with the English language. In regular ludicrous press releases and columns like this one, they’re trying to convince a (not-buying-it) public that there is no need to protect the right to a life-saving abortion, because there is no such thing as a life-saving abortion, because – wait for it – it isn’t really an “abortion” if the purpose is to save the woman’s life. It’s a “necessary medical procedure”, or something to this effect. Which just happens to end in the death of the foetus or embryo. Got that?

Now you know, and I know, and anyone who’s ever opened a dictionary knows, that that’s a load of rubbish and there’s not a chance of the law being changed to reflect it. But what the hardcore anti-abortion movement lacks in logic and public support, they more than make up for in political power. Quite simply, the major political parties in this country are scared shitless of them – and I mean all the major political parties, not just the two right-wing ones (Fianna Fáil and Fine Gael) that have consistently pledged not to legislate for the X case. The two next-largest parties, Labour and Sinn Féin, both support the right to abortion in life-saving and a couple other scenarios, but neither trusts a woman to make up her own mind about the decision. In fact, prior to the last election (which returned five members of the United Left Alliance), there was not a single pro-choice party in the Irish parliament. And even the ULA declined to campaign on the issue during the election, although to their credit they’re starting to make up for that now.

A consequence of this hold that the foetalists have over politicians is that more than a year after the ECHR decision (and, of course, twenty after the X case) we’re still waiting for implementation. And we’ll be waiting a while more. The government “met” its obligation to tell the ECHR how it was going to implement the decision by stating that it would establish an “expert group” to consider how to implement it. Just telling that to the ECHR took six months. It took another seven to announce who was being appointed to the group and the group’s terms of reference. The group’s conclusions are to be reported back to the government in a further six months. What happens then is anyone’s guess.

There are a lot of aspects of this story that I find sickening, but perhaps none more so than this: we in Ireland are in the midst of several years of austerity budgets, which this and the last government have justified by saying they need to make “hard decisions”. So they have made the hard decision to cut income supports for working and unemployed people, lone parents and those in need of extra assistance to care for the children they have. They have the made the hard decision to impose new stealth taxes and increase VAT, all of which will have a disproportionate negative impact on those already struggling to cope. They have made the hard decision to cut funding for community and support services for low-income women and families, and to combine the Equality Authority and Human Rights Commission into a single (and even weaker) body at precisely the time when discrimination against pregnant women and new mothers is increasing. So, the Irish government has no problem making the hard decisions that hurt women and families, and the hard decisions that make it more likely that some pregnant women will seek abortions. But legislating to ensure that a woman who might die without an abortion can get one in Ireland?

It seems that’s a hard decision too far.

Please go here for information on the Action On X campaign, or email actiononx at gmail dot com

Saying it better than I could ever say it myself

There are times when I, as a non-sex worker, feel that I nonetheless have something to contribute to the debate with my legal education and research abilities. And then there are times when I feel that I can make the biggest contribution by shutting up and linking to something else. This is one of the latter occasions. Read this. Just do it. I couldn’t possibly add anything more to what it says.

And if you can’t read the whole article – but please, please, you really should – at the very least have a look at the Melissa Farley piece it links to. Never have her vicious hatred and contempt for sex workers, beneath a facade of concern, been so clearly exposed.