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:
— Cora Sherlock (@CoraSherlock) February 10, 2013
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.