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Category Archives: Reproduction

The political and personal landscape of choice in Ireland

This piece has been previously published in print by the Workers Solidarity Movement in the magazine Common Threads. Since its publication one of the pending prosecutions in the north referenced in the piece has resulted in a conviction for a young woman for having a safe though illegal abortion using the abortion pills.1383342_332492296896551_364124772_n.jpg

 

It is all but impossible, both in theory and in practice, to legally obtain an abortion on the island of Ireland, both north and south of the imaginary border that divides this island. It is completely impossible to safely and legally obtain an abortion anywhere in Ireland;  the legal framework in the south specifically requires that in order to obtain an abortion without being criminalised for so doing, the woman who needs it must be ill enough to die; thus it is rendered impossible for her to be safe in access to legal abortion.

 

In the north, the Offences Against the Person Act dating from 1861 – over a century and a half ago – is what renders women taking control of whether or not they give birth and remain pregnant illegal. It describes abortion as ‘procuring miscarriage’, a description which is very apt for what those who need abortions in the north of Ireland today are forced to do by this archaic piece of legislation; obtain the abortion pill illegally online via organisations like Women on Web, Women Help Women, or less reputable means. It states that anyone who does this “shall be guilty of felony, and being convicted thereof shall be liable [..] to be kept in penal servitude for life”. However there was an exception made to this under the Criminal Justices Act of 1945. This Act, while it created the offence of “child destruction”, defining it as “any wilful act [that] causes a child to die before it has an existence independent of its mother” allowed that such a “destruction” could be carried out without legal penalty if one is acting in good faith to preserve the life of the “mother”.

 

Unlike in the south, this has been interpreted by subsequent judgements to mean not only that the woman must be on the brink of death, but also that the woman’s health was important as well. (In the south, the Supreme Court ruling on X in 1992 specifically excludes the woman’s or girl’s health from being in any way relevant to whether she is permitted to access an abortion.) In 1994 a court in the north found that this “does not relate only to some life-threatening situation. Life in this context means that physical or mental health or well-being of the mother and the doctor’s act is lawful where the continuance of the pregnancy would adversely affect the mental or physical health of the mother. The adverse effect must however be a real and serious one and there will always be a question of fact and degree whether the perceived effect of non-termination is sufficiently grave to warrant terminating the unborn child.” However it is very difficult to establish clearly the criteria under which this is deemed to be the case; on the 26th of March of this year the Northern Ireland Executive finally agreed to publish guidelines for healthcare professionals on when it is legal for women to access abortion. This was following enormous pressure on the Executive owing to a ruling from Belfast High Court in November 2015 which found that to deny abortions to women carrying pregnancies that will not survive to term, or beyond birth, or pregnant as a result of “sexual crime” was a breach of their human rights. Again, as in the south, this legislative framework ensures that a woman cannot be safe if she is unwell and endangered enough to fit the criteria of being ‘permitted’ to access a legal abortion.

Despite the obvious outdatedness of the Offences Against the Person Act of 1861, there are nonetheless not one, but two pending prosecutions in Belfast at the moment under it. One is of a woman who procured the abortion pill for her teenage daughter; subsequent to its administration they presented at a hospital in search of medical treatment, worried for the daughter’s well-being. Though details of the case are as yet unclear, it seems that a (presumably anti-choice) medical professional they encountered there felt the need to report them to the police for something that would render them open to life imprisonment. The second pending prosecution is of a woman in her twenties who obtained the abortion pill for herself and apparently for others. Again, details of her situation are unclear, but given that there is no prosecution or pursuit of any of the over 200 women from the north who have openly and deliberately incriminated themselves under their full names in repeated open letters and publications in various media as people who have needed access to the abortion pill, it seems likely that this prosecution too came about under pressure from another party.

 

The legal structure in the south of Ireland is the 8th amendment to the Irish constitution. It states that “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.” The obvious afterthought of the right to life of the carrier of the foetus granted was only included in the wording after a vigorous campaign from feminist groups of the time. The referendum for its inclusion in the constitution of southern Ireland was passed in 1983 after a vitriolic debate in a referendum in which only 53% of the electorate voted. 67% of those who voted, voted for it. This means that a decision made by a mere 35% of the electorate of southern Ireland 32 years ago, none of whom are likely to be women of reproductive age today (the youngest a voter in that referendum would be now is 50), is deemed relevant and appropriate to force every person capable of becoming pregnant in the south of this island to remain that way regardless of that person’s own opinion on the matter.

 

The 8th amendment also strips from any pregnant woman or other person the right to consent or refuse any treatment a higher power than herself(!) may deem necessary for the foetus she carries in pregnancy. It also means that it is at the whim of a medical treating power to deny a pregnant woman potentially lifesaving medical treatment if they consider it may damage the foetus she carries, as was seen in the case of Michelle Harte. Michelle Harte was a cancer sufferer who was receiving treatment denied to her by Cork University Hospital’s “board of ethics” (what a misnomer) when she became accidentally pregnant. The same ethics board denied her, a dying woman, access to an abortion and forced her to travel to the UK while incredibly ill with cancer to obtain the healthcare she needed – an abortion. She subsequently died. A Catholic bishop sits on that ‘ethics’ board.

 

Since the context of choice and bodily autonomy in most public discussions, even most leftist public discussions, seems only to be understood as the choice to continue or to end a pregnancy, it is imperative to highlight that the 8th amendment is used also as a tool of coercion against women and others in continued pregnancy and during birth. The 8th amendment is regularly cited to pregnant women wishing to go against what their doctor deems to be the best for them; the phrase, “I could bring you to court if I have to, you know” is one used against pregnant and birthing women in Ireland far too often. This is explicitly stated in the HSE’s National Consent Policy, which cites the High Courts as the appropriate place to determine what can be perpetrated upon the body of a pregnant woman without her consent. Doctors, midwives and social workers are more often those doing the coercing in this scenario; it rarely goes as far as the courts, as most women when told by the social workers who arrive on their doorstep (as has happened in more than one instance) that their existing children will be taken from them into care if they continue to refuse to comply with their doctor’s vision of what is best for them, do not feel capable of struggling back when in all likelihood they will lose anyway. However there is one instance in which the High Court has been invoked, in Waterford in 2013 in the Mother A case.

 

The Mother A case involved Waterford Regional Hospital taking a woman, known as ‘Mother A’ by the court, to the High Court in an attempt to secure an order coercing her into a caesarean section. They took this action despite the fact that Mother A was not utterly refusing to consent to a c section; she specifically said that despite her desire to have a vaginal birth, should an emergency arise, she would consent to a section. It was not an emergency situation; the spur for the coerced c section was a foetal trace which was categorised by the person interpreting it as “non-reassuring” rather than emergency. She also wanted to delay the birth by at least 24 hours, because her partner was out of the country until then and she wanted him to not only be present at the birth but also to be able to be there to care for their older child during the period she was in hospital. Further, while the hospital insisted she was 41 weeks and 6 days pregnant, she deeply disagreed with their assessment. (It is worth highlighting at this point a similar case in Our Lady of Lourdes Hospital in Drogheda in 2003 where a woman, Therese Darcy-Lampf, was coerced into a section at 34 weeks owing to the hospital having wrongly noted her gestation after a scan, despite the fact that she pointed this out to them repeatedly. Her baby, Jessica, died shortly after being born far too early.) All very reasonable things to want; yet all things that were utterly denied her at the apparently capricious behest of an obstetrician and a hospital that stripped her of her voice and her autonomy. No judgement was handed down in this case as the woman “consented” to the caesarean section before one became necessary.

 

The nightmarish reality of forced caesarean sections has now been publicly enshrined not only in Irish practice by the Mother A case, but also in law and in practice by the passing of the Protection of Life During Pregnancy Act of 2013. The first draft of this bill was called the Protection of Maternal Life During Pregnancy Bill; but clearly this concept, that women should not die because we are pregnant, was deemed far too radical by the Labour-Fine Gael coalition government to pass into law and thus it was renamed to ensure that nobody reading it should become confused and think perhaps that women’s lives matter. Such confusion is however highly unlikely given the content of the Act, which requires that a suicidal woman must prove that she is suicidal to up to 6 doctors before eventually being granted a lifesaving abortion. This despite the fact that suicide is a leading cause of death during pregnancy in Ireland, and despite the fact that we are constantly being reassured through ad campaigns telling us to ‘please talk’ (talk to whom is never made clear) that mental health is in fact real health. It is only real health until it comes to pregnant women, as was made obvious by the atrocities perpetrated on Ms. Y by the medical establishment and the state in the south in 2014.

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Ms. Y arrived in the south of Ireland on March 28th, 2014 as a refugee. At what is described as a “health screening”, six days later she found out she was pregnant; she made known to those performing the screening on behalf of the state that she had been raped and that she could not possibly under any circumstances have a child. She was very distressed. A nurse made an appointment for her two days later with the IFPA who informed Ms. Y that abortion is not accessible in Ireland and that travel for her “may” be difficult – as an asylum seeker travel documents and visas into and out of Ireland are time consuming, costly and difficult to obtain. The IFPA made an appointment for Ms. Y to have a dating scan and referred her to the Immigrant Council of Ireland for advice and support on travelling as a migrant. Four days later, Ms. Y had a dating scan performed and it was discovered she was 8 weeks pregnant.

 

At this point it would have been possible to hand her three pills and for her to have ended her own pregnancy as she wished, with minimal impact on her, minimal further violation of her bodily autonomy and integrity, and minimal pain and suffering. Three pills.

 

Instead, she was handed about from pillar to post, having contact with three separate NGOs as well as the HSE staff she initially encountered, and her situation appears to have slipped between the cracks of these, unnoticed by anyone except herself as with the continuation of her pregnancy her despair and hopelessness deepened. A doctor from Spirasi, one of the NGOs she had contact with, wrote to the GP of the direct provision centre she was consigned to, describing her as “having a death wish”. The GP of this centre says that the letter was not received. A co-ordinator at the ICI formed the opinion that Ms. Y might change her mind about needing an abortion based on apparently nothing whatsoever. A counsellor at the IFPA suggested adoption to her. For a further 16 weeks she was handed around and around until eventually, on the 23rd of July (almost four months after her pregnancy was first discovered and she initially declared herself utterly unable to contemplate going through with it) she had an assessment with a consultant psychiatrist who told her it was too late to have an abortion and then coerced her into being detained in a maternity hospital under constant surveillance, where she refused all food and fluids for several days.

 

By that time she had met a consultant obstetrician who was of the opinion, despite the fact that Ms. Y was so despairing and suicidal that she was even refusing water,  “that Ms Y could be maintained on the ward for as long as possible and hopefully to 30 weeks so that the baby could be delivered appropriately.” This would have meant another 6 weeks of detention against her will; another 6 weeks of sedation against her will in order to forcibly feed and hydrate her against her will in order that her body and autonomy undergo repeated violations in order to host a pregnancy she loathed so much she would rather have died than have it in her body any longer. Instead however, as Ms. Y continued in her determination to refuse fluids, a caesarean section was carried out on her several days later; enforced major abdominal surgery also against her will.

 

This horrifying and traumatic ordeal inflicted upon Ms. Y was torture; state-sanctioned, state-inflicted torture, state-legalised torture. And were another Ms. Y to arrive in the south tomorrow, in the same harrowing circumstances, the state would more than likely torture her in precisely the same manner.

 

It is important to note here the degree to which the maternity hospitals in the south are complicit in, and even the driving forces behind the denial of basic bodily autonomy to pregnant women; both in abortion and in continued pregnancy. It is for these reasons that those of us who are involved in the pro-choice movement should be deeply wary of embracing the “masters” (the word alone should be warning) of the Dublin maternity hospitals such as Rhona Mahoney and Peter Boylan when they declare themselves to be opposed to the 8th amendment. At least one of those ‘masters’ has been known to invoke the courts in order to coerce pregnant women into interventions during their pregnancies, labour and births, and both of them are opposed to women’s choice of type of care (midwife-led or obstetrician-led) and the choice even of birth position in the case of Peter Boylan. Furthermore Peter Boylan in 2015 testified in the High Court in defence of the barbaric practice of symphysiotomies. Tempting though it is to reach for a “higher authority” in defence of our stance, these are not our allies in the struggle for women’s bodily autonomy.

 

However those who are our allies in this struggle are, in fact, the majority of the voting public in the south. An exit poll carried out at the general election in February of this year found that 64% of people support the repeal of the 8th amendment. This number is all the more invigorating for those of us in the trenches of this fight given the increasing vehemence of the well-funded anti-choicers over the last number of years. It’s also all the more inspiring because there’s a general misunderstanding of what the pro-choice position is in the public discourse around abortion in the south; the case is constructed as “Would you agree with and support her decision in this case?” rather than “Would you personally stop her?”, a much truer reflection of what the pro-choice stance is and means.

 

As the fight continues, it becomes more and more important to avoid the slippery slope of only publicly advocating and arguing for abortion access in terms of the “hard cases”, such as where the pregnancy will not survive outside the womb or in the case of survivors of rape. The majority of those who seek abortions do not fall into these categories and would be left by the wayside. Only allowing abortion access for pregnancies conceived by rape and incest would not only be impossible to legislate safely for but also makes clear that the enforcement of continuation of unwanted pregnancy because the woman chose to have sex is outright misogyny; either one believes that an embryo or foetus has rights overriding that of the person carrying it or one does not.

 

We own our own bodies. We are not property of any state. We can and will birth where, how, and if we choose.

 

After #ge16, where to now for #Repealthe8th?

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The results from count centres across the state are slowly trickling in as I write this, and Labour activists and supporters are shouting that #Repealthe8th is dead as quickly as their candidates are dropping out of the race. They need to stop.

I presume they genuinely believe what they’re saying, just as they believe that we wouldn’t have marriage equality were it not for the Labour Party, but peddling that view damages the pro-choice movement.

Labour might have been confident that they could deliver a referendum on the eighth amendment, but pro-choice activists of all political stripes and none haven’t forgotten that they delivered legislation on X to allow for abortion where a woman would be a risk of dying that contained a 14 year jail sentence penalty for inducing a miscarriage, and the horrifying case of teenage refugee pregnant as a result of rape enduring what was ostensibly a forced c-section at 25 weeks, despite medical professionals acknowledging that she was suicidal. The #Repealthe8th campaign exists in spite of Labour, not because of it. Perhaps Labour in government after #ge16 would have delivered a referendum, but what would that have looked like?

Besides, Labour aren’t in government now, and unless there’s some kind of divine intervention over the next twelve hours it doesn’t look like they will be. They had five years to work to hold a referendum and didn’t. We can acknowledge that Labour were in government when the Marriage Equality referendum happened but it was won because people mobilised and worked their rocks off to get it passed; People who were never involved in politics before came out alongside grassroots groups and got Ireland to a place where it said yes to valuing people as equals. So instead of throwing the toys out of the pram and acting all hard done by, Labour activists would do better to channel their energies into the pro-choice campaign and work for a repeal of these laws. There is nothing to be gained by trying to undermine the positivity of pro-choice campaigners by getting in a huff, throwing hands in the air and saying we should all just forget it now.

That said, it is difficult to ascertain just how much of a deciding factor abortion was in this general election given the number of Fianna Fail TDs that have been returned and their unwillingness to commit to a referendum – but there have been huge returns for independents and political parties who are very much in favour of holding a referendum. The people of Dublin Bay South waved goodbye to Lucinda Creighton, one of the most staunch anti-abortion voices in the Dáil and while this is to be welcomed, this is not a time for pro-choice activists to rest on our laurels. Clare Daly has championed reproductive justice and been returned to the Dáil alongside Joan Collins. Ruth Coppinger, Paul Murphy, Richard Boyd Barrett and Gino Kenny are all pro-choice. Sinn Féin have a policy in favour of repeal the eighth. There is a recognition, even amongst conservatives such as Leo Varadkar and Frances Fitzgerald that a referendum is inevitable. It is easier now to be pro-choice than it ever has been before and thanks to the work of pro-choice activists and an increase in public support, the stigma surrounding the subject is ebbing away. Now is the time to send a clear message to the returned members of the new Dáil that a commitment to repeal the eighth amendment must form a part of any new Programme for Government. Women must no longer be blocked from accessing appropriate healthcare. Public opinion on the need to repeal the law and provide legal abortion for women is far more progressive than what is represented in the Dáil now, even with the addition of the large range of socialist, republican and left of centre voices. This public opinion needs to be converted into action on the ground.

We must make no mistake, the anti-choice groups that are happy to see women die for want of medical care, will consolidate their efforts in order to keep the eighth amendment in place. They will continue with their bitter newspaper columns full of demonisation and blame, and their shaming billboards and they will continue their misrepresentation and campaigns of outright lies against people who provide women’s healthcare in Ireland. Their attacks on the IFPA and others are not about women’s healthcare, they are about muddying the waters so that they can portray themselves as being something other than religious fundamentalists who want to keep women in the dark ages. They have no intention of stopping so we have an onus to build our movement, to keep up the pressure no TDs and tell them in their clinics, in the streets, in the courts, and in their media streams that they must fight to repeal the eighth. We can’t only depend only on TDs to argue these points in the confines of the Dáil chamber; there is an onus on us to keep speaking to our families and friends to reduce the stigma, to help women accessing abortion care, to publicise information and to counter the outrageous propaganda and lies bandied about by anti-choice activists. We must organise and march in the streets and stand shoulder to shoulder with others campaigning for free, safe and legal abortion.

Pro-choice groups are ready for this fight. Are you?

#Repealthe8th

@stephie08

Breda O’Brien, clickbait and being devoid of empathy

Breda O’Brien, clickbait and being devoid of empathy

Breda O’Brien has a regular, offensive clickbait column in the Irish Times where she gets paid actual money to peddle her narrow, bigoted view of the world that doesn’t tally in any way with actual evidence of what happens in real life. She goes to great lengths to portray women who’ve had abortions as being at best cold and indifferent about their experiences and at worst, callous, unless they are members of Women Hurt. For Breda, the only time it’s acceptable for a woman to talk about her experience of abortion, is if it is in the context of being a negative experience in your life. Ideally, the more torment connected to it, the better – because it will be the only time that your experience has any value at all. It doesn’t matter for her or even the Irish Times, that her stories are possibly not actually true, it just matters that some people will believe them. If you throw enough stones, eventually you’ll hit something.  Today’s offering is no different.

O’Brien opens today’s drivel by saying that Irish women talk about their abortions all the time with her. Maybe there are women who talk to O’Brien about their experiences but she is hardly the most likely of people you would confide in;

“Breda, you are a well known anti-abortion activist so I need to tell you, I was raped at 14 and had an abortion at 6 weeks.”

“That choice was morally wrong and is exactly the same as drowning a three year old child. ”

“Um, thanks Breda. I’m glad I got that off my chest by talking to you.”  

Given the exposure Tara Flynn and Roisin Ingle’s stories got in the Irish Times last week, it’s hard not to read O’Brien’s piece as a direct retaliation towards these courageous women. It’s basically an eight hundred word fuck-you to Roisin and Tara.

She also says that women have told her of going for post-abortion counselling in a pro-choice organisation only to be told, “you did what was right for you at the time. Put it behind you and move on.” But I find it a stretch that any pro-choice organisation would simply tell a woman “move on” after she said she found her experience difficult to deal with or that she had regrets. Because that is not how pro-choice people or organisations operate. That is a fiction. Unlike O’Brien, we recognise that women have different experiences while noting that the vast majority of women who have terminations do not regret them.

O’Brien says that these women feel dismissed and diminished, while not for a second noticing the irony that women who do *not* regret their decision are dismissed and diminished by O’Brien and her Iona cronies who are given a national media platform on which to do so. No person’s experience should be diminished, but the women who allegedly seek comfort from O’Brien should not be taken as representative of the sum total of women who have had terminations – just as the women who do not regret them are not the sum total, we merely note that they are the overwhelming majority. O’Brien goes to great lengths to couch her language in terms of pseudo comfort and “common humanity” and then denies to other women the capacity to make decisions for themselves believing that she knows better.

She  decries those of us who speak of cells and the right to choose and implies that we are the same as Roman men who left babies to die on the side of a hill as we dehumanise the “victim.” At no point does it register with her how she dehumanises women who make the decision to abort without regret; women who terminated because of the suffering that continuing the pregnancy might bring, or the risk to their health or wellbeing, or because they were in a violent relationship, or because they simply did not want to be pregnant.  If pro-choice feminists who advocate a woman’s right to choose are for O’Brien, like the Roman men who leave babies to die of exposure on the hillside then what does that make the women who actually choose to abort? This of course is the woman who is a spokesperson for the people that carry signs at their rallies saying “Abortion is Witchcraft” (forward to 2:52 of this video). Does that sound like empathy to you?  

Anti-choice ideology ignores that fact that legal and medical structures that deprive a woman of full control over her own reproductive system condemn women to being second class citizens. O’Brien attempts to portray herself as being understanding, attempting to make us believe she empathises with women in crisis pregnancies by saying if she had become pregnant as a teenager, she is “not sure what (she) would have done.” Perhaps that’s true. She wouldn’t be the first woman to be against abortion until faced with a crisis pregnancy and had she accessed a termination, she certainly wouldn’t even be the first anti-choice woman to terminate and subsequently stand outside that very same clinic and denounce the women who enter it.

But you are not empathising with a woman in a crisis pregnancy when you actively campaign in favour of laws that compel women to endure a forced pregnancy, a court ordered c-section, and then tell us that she should have been made to carry that pregnancy to term. Being empathetic does not mean heaping judgment on women who had abortions and telling them their decisions was morally wrong. Since when did empathy extend to stigmatising and criminalising women and advocating that they go to jail? You cannot attest to empathise with women in crisis pregnancies when you deny them a choice in their medical care that will literally result in their death.

O’Brien also carefully adds a sentence about Aylan Kurdi so that there is to be no misunderstanding as to where she stands –  comparing the drowned three year old to the terminated weeks old foetus. She could have written a column about how Europe should open its borders to the refugees, or about how Hungary is treating the thousands walking through their land, tired, cold, and hungry, searching for a better life. She could have even spoken about the reasons why women choose abortion and acknowledged that if you want less abortions, you need to make it easier for women to have children. That would be the logical thing, but this is not about logic, this is about curtailing women’s choices because Breda O’Brien views them as vessels and nothing more.

The majority of people in this state are pro-choice despite all of us of child-bearing age having never had our say on the Eighth Amendment. My own mother wasn’t even old enough to vote when the Eighth Amendment was passed. Prochoice activists acknowledge that abortion can often be a difficult decision for a woman. We also acknowledge that the decision to terminate can be a source of great relief to many. The difficulty for anti-choice activists is that they cannot contemplate, due to being completely devoid of empathy, why it would be a relief  for many women and why not every woman struggles with it, so in order for them to understand it they must portray these women as uncaring monsters like the Roman patriarchs or of course, witches.

Anti-choice activists do not understand, much less care, that when a woman is pregnant, she is more than a receptacle to carry a foetus to term, with thoughts, feelings, financial pressures and very often, other children to take care of. Just as it would be wrong for a woman to be compelled to terminate against her wishes, it is wrong to compel her to carry a pregnancy against her wishes. Women are more than the contents of their wombs and their existence has more reason than bearing children, and if we want to talk about moral value, then we must acknowledge that an embryo does not have the same moral value as a living, breathing woman who bears it, simply because it has the potential to become a human being. The inability to empathise at the very core of anti-choice beliefs is the reason why there is a woman on trial in Belfast for supplying her daughter with abortion pills, and it is the reason that a woman who has an illegal abortion in this state will get 14 years in prison. Reducing a woman’s humanity and placing it on a par with a week old embryo is not empathy, it is stomach-churning fanaticism. Perhaps had O’Brien actually been faced with a crisis teenage pregnancy, she may believe that had she taken certain decisions that she should have faced 14 years in prison, although at that time it would have been a life sentence (presumably for her own good), but that is not empathy.

Believing that because you never had an abortion that nobody else should have one either is about as far away from empathy as you can possibly get.

#Repealthe8th

@stephie08

A duty to reproduce: Modern Ireland is a sci-fi dystopia for women

In an episode of Battlestar Galactica called “The Farm”, Starbuck gets shot during a raid on Caprica and loses consciousness. She wakes up in a hospital, where it turns out that the cylons have a lot of human women hooked up to “baby-machines”, because they can’t reproduce themselves, so they’re trying to reproduce with humans. The human women are used as incubators and the cylons are of the view that they have a duty to reproduce. The cylon doctor tells Starbuck how women of reproductive age are very “precious commodities.” The agency of the individual does not matter – they are merely vessels. Vessels do not need to consent. The women hooked up to machines for the sole purpose of reproduction are, in this case, science fiction, and it’s pretty grim.

As I type this, there is a woman who is clinically brain dead but being kept alive on life support against her family’s wishes solely due to the fact that she is pregnant. The trauma that her family is going through now does not bear thinking about. I have lost a close family member in terrible circumstances, but I cannot imagine what it must be like to endure the heart-breaking pain of deciding to switch off a life-support machine. The trauma of it is surely enormous.

A next of kin is generally legally entitled to make a decision regarding treatment where a person can no longer consent. This family has concluded that the best course of action for this woman would be to withdraw life support. The medical staff cannot grant this request due to the constitutional right to life of the unborn: the right of an early stage foetus to be gestated potentially supersedes a woman’s right to dignity in death.

The state and the law of Ireland views women as vessels. In Ireland, once we are pregnant, we are no longer agents of ourselves. We do not get to decide whether we should or should not remain pregnant. Our thoughts, our feelings, our mental health does not matter. Our ability to parent does not matter. Our poverty does not matter. Our right to die a natural death does not matter. Our dignity does not matter. Our physical health does not matter, because you must be at risk of death to have an abortion. This is the outworking of the 8th Amendment. The state is unapologetic in this. The only time in which a pregnancy may be ended lawfully through termination is when there is a risk to a pregnant person’s life. The life of the foetus is what matters: continuing the pregnancy at all costs is what matters. If a pregnant woman is deemed to be suicidal, and like Ms. Y, wants an abortion, the pregnancy will be ended not through termination, but by an early caesarean once it is viable. To the state, ultimately, we are simply wombs with irrelevant thoughts attached.

The woman on life support in Mullingar, due to being clinically brain dead after suffering brain trauma, is being treated as an incubator for her foetus. There are people arguing for her to be kept alive for months so that her foetus may be born, and then turn the life support off – for them, she serves no purpose beyond this pregnancy. Her family now intend going to court to ask, in the name of compassion and human dignity, that her life support machine be switched off. There is no predicting what the courts will decide.

Will Article 40.3.3’s requirement to vindicate “the right to life of the unborn” in so far as is practicable require doctors to keep a clinically dead woman alive artificially in order to incubate it until it can be delivered? It is the crux of the case. It isn’t clear what stage the pregnancy is at (Reports have varied from 16 weeks to 20 weeks, with Joan Burton stating during Leader’s Questions today that it is at a “relatively early” stage), but while the 8th Amendment remains on the books every single case that presents such as this one will mean a trip to the courts for a family, because there will never be a clarity on what is practicable and what isn’t. Is one week practicable or twenty? You cannot legislate for every potential case.

We do not need another inquiry and report to tell us that the 8th Amendment still leaves medical practitioners with a lack of clarity as to what to do in these situations, or to tell us there is lack of clarity on whether it’s the pregnant woman’s rights or that of the foetus that will prevail. Leaving a pregnant woman hooked up to a machine for the sole purpose of incubating a pregnancy for possibly twenty weeks, in the absence of her next of kin’s consent where she has no capacity, does not uphold her dignity. It does not uphold her right to die a natural death. It does not allow for her family to consent when she cannot. It is inhumane, but her womb is a “precious commodity.” They wouldn’t do it to a dog.

This is the constitutional law, and while the law is designed to treat women as vessels we will always have the hard cases that fall outside of the scope of legislation. We will have more women in desperate situations. More Savita’s, Ms. Y’s. More A’s, B’s and C’s. More Ms. D’s. More Ms. X’s, and more women hooked up to machines because the state does not afford them or their next of kin the capacity to consent for themselves because their wombs are too precious a commodity to risk allowing them control over. This isn’t science fiction, for women, modern Ireland is dystopia enough, and there is no need for machine overlords, while catholic conservative values dominate policy on this issue.

#Repealthe8th

 

 

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.

The Moral Outrage of the Damned: Public reaction to the plight of Sabrina McMahon

Sabrina McMahon is 36 years old. She has three children, ages 5, 3, and 1. She and her three children currently live in her car. Sabrina has lived in her car for the past week after her “temporary” arrangements, which lasted a year, broke down. She formerly worked as a dental nurse and as a carer. She keeps her buggy, nappies and possessions in the boot of her car and her groceries in the front. She avails of the kindness of friends so she can wash and clean her clothes. Her children sleep in the back. When the baby wakes for a bottle she switches on the engine to keep her warm. A Sinn Féin Councillor Maire Devine, has been making representations to South Dublin County Council on her behalf for the past year while she went from relative to relative over the months since her relationship broke down. When SDCC were contacted by the Irish Times for comment, they said they were “aware” of the case but didn’t wish to say anything further which was unsurprising.

Unless they were going to say, “We are deeply ashamed that we have failed to show basic human decency to this woman and her family and find her a home” they were probably better off to say nothing. No landlord will accept rent allowance from her. She presented at the Dublin Central Placement Service and was told to go back to Kildare, where she had previously lived, but she wants to live near her family.

If was I was living in a car with three small children I would want to live near my family too.

Her story was on the front page of the Irish Times and it covered on all the major radio stations. On Newstalk this morning, texts flooded in saying that Sabrina was a bad mother; that she should have her children taken from her; that she shouldn’t have even had her children in the first place; that she was irresponsible and only “using” the media to get a free ride on the back of taxpayers. Social media users had a field day in condemning the parenting skills of a woman who is literally living on the margins of society. Very little was said about her former partner. However, the level of misogyny and hatred directed at her in those texts and comments was a slightly more ignorant representation of the structural misogyny directed at her from the state. The state shows its disdain for women like Sabrina by failing to provide for her needs. The tweets condemning her are this simply this same attitude refined to 140 characters.

There are 98,000 families waiting for social housing in this state and the comments levelled at Sabrina McMahon are not unusual. In fact, Sabrina’s situation is not unusual. People are fooling themselves if they think that Sabrina McMahon is the only person in Ireland living in her car right now. And the comments about her are the same type of comments made about poor and homeless women who become pregnant and have families because they generally pathologised as people who made bad decisions, lack male authority, and exist without morals or values. They are believed to be selfish and parasitic and rearing children in their own rough image. It is the stock depiction of the very poorest working class women.

While Sabrina has some bread rolls in the front seat of her car, her problem is that she isn’t a consumer. She just wants somewhere to live that’s safe. It’s one of the most basic things a person can ask for. She isn’t economically productive, and therefore doesn’t warrant the concern of the state. She is a mother and a carer so not considered to be engaging in “real work.”

Women do the lion‘s share of unpaid household and care work. But it isn’t considered “work” because there are no wages, it’s just what women do. It is a bizarre attitude from a state that has a Constitution that specifically assigns a woman’s role to the home. But the very structure of capitalism, depends on women doing the majority of this form of work without payment.  Neoliberal capitalism neglects to acknowledge that women working within the home (or from their car in the absence of having a home) are economically productive as it allows the State to not provide public childcare infrastructure or other supports for childrearing. It is just something that women are expected to do, but it isn’t good enough for the terms of capitalist patriarchy.

Unfortunately Sabrina lives in a place where the government department responsible for welfare, the Department of Social Protection, aim to restructure the lives of poor women like Sabrina, in both a physical and a moral sense. It was not by mistake that it was the Minister for Children and Youth Affairs Frances Fitzgerald was out commenting on this story today, to address the concerned masses’ cries of “won’t somebody please think of the children?” rather than the Minister for Social Protection or the Minister for Environment, who ultimately have the responsibility for Sabrina’s situation.

It is unlikely that those who had the luxury of sending a message from their smartphone to a radio station to condemn and blame Sabrina for her situation, stopped to contemplate the precarity of their own situations; how many of them are only two, three or four pay packets away from homelessness themselves.

Not only was Sabrina demonised as a bad parent – but through their commentary, the very value of her existence was questioned. Caring for three small children in the back of a car isn’t valued because it is unpaid labour, although it is probably fair to say that if those who condemned Sabrina were forced to do it, they would think it was pretty hard work indeed.

SPARK ran a campaign last year against a programme forcing lone mams to work when their children turned 7, which had been introduced by Minister Joan Burton. You couldn’t have people remaining economically unproductive now could you? The rationale is that the state cannot allow people to exist in a way that does not overtly benefit capitalism. The point of that programme was to redeem the women who do not have male authority in their lives by forcing them into a situation where they would live within a patriarchal system that would give them male authority in the form of employment. The likelihood is, if they even managed to get a job, their boss would be a man. It is the state’s antidote to these dreadful welfare recipients of getting something for nothing. This particular form of workfare is branded an “activation measure” but it is punitive. It punishes women for not conforming to a life that involves a man who is a breadwinner.

Women don’t become poor in a vacuum. Women like Sabrina don’t live in cars for the fun of it and as austerity continues to destroy Irish society, we will continue to see more Sabrinas living in more cars and cardboard boxes, and sadly, more people willing to condemn them for it.

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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