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.