Ireland Legalizes Abortion, Makes it Impossible
I’ve been writing about abortion law in Ireland, on and off, for almost a decade now. You’d think there's not much to write about in a country that effectively forbids abortion in both of its states (the independent Republic of Ireland and British-controlled Northern Ireland). Of course there are the usual campaigns from those unhappy with the status quo. The strange thing, though, is that the loudest and most visible campaigns have been those of anti-abortionists who want to outlaw abortion in a country where it is already outlawed.
Let me take you through that looking glass into another world, one where all that is solid melts into blarney. As of today, Ireland has the second-strictest abortion legislation in the European Union, with only Malta's total ban being more forthright. This summer things will change. On April 30, mandated by a Supreme Court ruling and backed-up by the European Court of Human Rights (ECHR), the Irish government published its draft legislation for abortion.
As I reported for my day job, Ireland's government is divided by the new law. And yet, the Protection of Life in Pregnancy Bill is extremely restrictive, intentionally so, in order to appease anti-abortion members of Ireland's coalition government. In fact, in a desperate bid to keep conservative lawmakers on board, even the name of the bill was changed at the last minute. Previously it had been called the Protection of Maternal Life Bill.
Not that this has managed to appease pro-life campaigners: one group, the tastefully-named Youth Defence, denounced taoiseach [Prime Minister] Enda Kenny as "the abortion taoiseach."
The way they tell the story, abortion-on-demand is on its way to Holy Ireland. Hell, it won’t be long before the streets here are lined with abortion vending machines.
Pro-choice campaigners don't quite see things that way.
Speaking to Ann Furedi, chief executive of the British pregnancy Advisory Service (Bpas), for my report in The Monitor, I got as succinct a description of the bill as I expect to come across: "From what I've seen of it, it looks as though it's an excellent civil service-style bureaucratic solution. A proposal has been put forward that will tick boxes for bureaucrats in Brussels, allow Irish politicians to say they're conforming with European regulations. It does absolutely nothing at all to improve the lives of the thousands of women who experience unwanted pregnancies."
She isn't wrong. The bill is only being pushed forward because of a 2011 ECHR judgment that demanded Ireland "clarify" its abortion law. Left to its own devices, the Irish government would do what all Irish governments do: waffle, look a bit sheepish and thank the Good Lord for low-cost airlines.
Wait a minute! Why low-cost airlines? And why should a British abortion-services provider like Bpas give a damn about Irish law? Because Irish abortions do exist. They just don't happen in Ireland. Every year since the early 1980s, an estimated 4,000 Irish women have travelled to Britain, the Netherlands and Belgium in order to procure abortions. Yes, 4,000. Every year. Bpas alone performs 1,000 abortions for Irish women annually.
I’ll get back to the outsourced terminations question in a moment. But first, a primer on the politics of abortion in Ireland…
Whose side are you on?
Generally speaking, the abortion debate in Ireland forms along left-right lines: left pro-choice, right anti-abortion. Trouble is, the terms left and right don't make an awful lot of sense in Ireland. What distinguishes a political party here is not social and economic policy but the moment when that party turned its guns from the British to aim instead at former comrades.
All Irish parties, with the exception of a few comical socialist micro-groups, the pro-British unionists in the North and tiny extra-parliamentary amoebas like the Green Party are directly descended from the IRA. Here’s how that breaks down:
— Fine Gael (Tribe of the Gaels), the main party in government, represents the conservative wing of the old IRA of the 1910s and 1920s. This side won the Irish Civil War and founded the state that exists today, but lost the country to its opponents… the losers. Fine Gael now fancies itself as a European-style Christian Democratic party and doesn't talk much about its predecessor's dalliance with fascism in the 1930s. Today it's virtually indistinguishable from any other center-right party in Europe – assuming all center-right parties are stuffed with flab-faced kulaks, small business-owners and yokels.
— Fine Gael’s coalition partner, the center-left Labour is only indirectly descended from the IRA, but its highest profile leaders are ex-members of the Workers' Party, the Moscow-line splinter linked to the Official IRA. As with almost all of the motley crew of European Stalinist parties, it drifted to the center under the direction of the so-called "Eurocommunist" movement, ditching proletarian struggle for filofaxes, feminism and fantasies about taking power through the ballot box. It then merged with Labour; but not before getting awfully cozy with the East German secret police and the government and military of North Korea. The former leader of the still extant rump Stalinist party is being sought by the US government for alleged trafficking of so-called "Superdollars," North Korean-made counterfeit dollars so perfect they can't be told apart from genuine greenbacks – though this does pose an epistemological question: how does anyone know the fakes are really fake if they're identical to real dollars? Labour is, for the most part, pro-choice, but it doesn't like to shout about it.
— Centrist Fianna Fáil (The Warriors of Destiny) is the remnant of the other, more radical, wing of Ye Olden IRA, the one that didn't want to end the war with Britain in 1921. Its support comes from a hodgepodge of urban working-class voters, small farmers, flab-faced kulaks who don't like the other lot of flab-faced kulaks for no discernible reason and, er, former multi-millionaire property developers who bankrupted the country. The party has stayed quiet on the issue of abortion in a bid to do as little as possible, which was also the party's unstated policy on all issues while in government. Fianna Fáil is generally viewed as functionally corrupt and, as a result, has been remarkably popular with the Irish. Trounced at the last election for its disastrous handling of the economy, the party is already on its way back up in the polls. After all, the one thing Irish voters hate more than austerity is ideology.
— Sinn Féin (We Ourselves) is the political wing of the now-disarmed Provisional IRA, or just plain-old IRA if you like. It was the "right-wing" faction of the 1969-1970 split, but this being the time it was, the party soon came under the influence of Marxism and drifted to the far left. It has since drifted back a bit and is now the leading party of the left in the country. On legalizing abortion the party is divided, with Catholic nationalists opposed and republican socialists in favor. Happily for Sinn Féin, its dalliances with Marxism and militarism mean the party knows a thing or two about discipline and is in the process of frog-marching its membership through the process of learning to do what it’s told. In the British-controlled North of Ireland, which also bans abortion, Sinn Féin says it supports a woman's right to choose, but opposes the adoption of the 1967 Abortion Act, because it's a British law and therefore imperialist.
— The United Left Alliance, composed of the Socialist Workers' Party, its front group the People Before Profit Alliance, the Workers' and Unemployed Action Group and the Socialist Party, is so united that it has now fallen apart. The four lawmakers who were once an alliance of (some of) the left are now effectively independents and all support abortion-on-demand, even though the ULA didn't openly campaign for it. Two, Clare Daly and Joan Collins, who are in the process of allying to form a new party called United Left, have campaigned for wide-ranging abortion rights.
— There are also a few independents, principally rustic cow-molesters, but also ex-Labour party members, and a range of assorted oddballs such as Luke "Ming" Flanagan (named after Ming the Merciless. Really.) who campaigns for the right to burn turf and smoke dope.
The significance of this incomprehensible political landscape is that it means the abortion debate lacks the clear party-political divisions present in most other countries.
All of the parties contain dissenting voices, but Fine Gael is the most divided. Up to a dozen parliamentarians threatened to revolt against the bill, but most seem to have now cooled their boots having realized that the law, when enacted, will still keep abortion effectively impossible. Anti-abortion campaigners – and the clergy – are keeping up the pressure, though.
The hierarchy of Catholic bishops issued a statement on May 3, saying, "We uphold the right to life as the foundation of every other human right. We encourage a deeper understanding of the inviolability of the right to life of both a mother and her unborn child, in all circumstances."
One significant issue raised by the bishops is that Catholic hospitals will be forced to allow abortions. Ireland's public healthcare (and education) system is government-funded, but large sections of it are run by the Catholic church, a legacy from the days when the church provided many of the social services in the country on a charitable basis. Some in the church have mooted the possibility of denying the sacrament of communion to lawmakers who vote in favor of the bill. Laughable as it sounds, it's not an unserious threat to rural politicians, many of whom feel the need to keep conservative constituents happy.
The proposed law follows in the wake of, but is not directly related to, the death of Savita Halappanavar on October 28, 2012. Halappanavar, a 31-year old Irish-resident Indian woman died in University Hospital Galway, having been admitted reporting a suspected miscarriage while 17 weeks pregnant.
Halappanavar and her husband, Praveen, both requested an abortion but the request was denied. An almighty shit-storm kicked off, with thousands of people taking to the streets, demanding the right to abortions. After a difficult couple of weeks, anti-abortion campaigners went into overdrive. A midwife told Mr. and Ms. Halappanavar that she couldn't have an abortion because Ireland "is a Catholic country." During the inquest into Halappanavar's death it became apparent that this was an attempt to explain the situation, rather than a dismissive remark.
But is it true?
Sort of. Ireland's law, as it stands before the pending change, does and doesn't permit abortion. Abortion in Ireland is punishable by "penal servitude" under the literally Victorian 1861 Offenses Against the Person Act, a law that predates the foundation of the modern Irish state in 1921. Further, the eighth amendment to the Constitution of Ireland, Article 40.3.3, was voted into law by popular referendum in 1983. The amendment states, "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."
This amendment, intended to outlaw abortion, is the proximate cause of the denial of an abortion to Halappanavar, which is now generally accepted to have resulted in her death by septic shock. The official inquest into Halappanavar's death reported "medical misadventure" as cause of death.
That's the strange thing about laws: they have unintended consequences. The purpose of article 40.3.3, the so-called "Pro Life Amendment," was actually to create a potential legal framework for abortion, albeit only in outlying cases like Halappanavar's.
At the time of her death, anti-abortion campaigners said Halappanavar should have been allowed to have a termination in the form of a dilation and evacuation procedure, drawing a distinction between an attempt to save the pregnant woman's life that would also result in the death of the fetus and the intentional abortion of the fetus. Critics could be forgiven for thinking such abortionology is akin to asking how many fetuses can dance on the head of a pin, but the point is a legal one: under Irish law, clinicians could have performed a termination in Halappanavar's case so long as they believed her life was at risk. It emerged during the inquest that doctors felt unsure as to at precisely what point the pregnancy endangered her life, rather than merely her health. As a result, no termination was performed and Halappanavar died.
A history of Courting Abortion
The death of Savita Halappanavar isn't the only incident that has ever thrust abortion into the public consciousness in Ireland.
The Protection of Life in Pregnancy Bill is the result of a ruling handed down by the Irish Supreme Court 21 years ago. In 1992 a 14 year-old girl became pregnant after being raped by a neighbor. Her parents reported the crime to the police, seeking to have the neighbor convicted and then took the girl to Britain to have an abortion. They were ordered by the government to return to Ireland and immediately taken to court.
The case that followed, Attorney General vs. X, made its way to the Supreme Court which heard that the life of the girl, X, was at risk due to suicide. The court ruled that, according to Article 40.3.3, a woman whose life was at risk due to pregnancy – including by threat of suicide – was entitled to an abortion.
The girl miscarried on her return trip to Britain, but the battle lines were drawn. Just how deeply the trenches were dug should be obvious from the fact that it took a further 21 years for successive Irish governments to get around to drafting a law at all. This contentiousness, however, is at the center of a new row about abortion, one that has seen the debate shift from the moral question around a woman's right to choose versus a fetus's right to life to the much weirder territory of extreme and outlying cases, from suicide threats to rare hospital deaths.
Today, unlike in previous decades that also saw fights over abortion, morality is the issue that dare not speak its name. Instead, the debate has taken on a psychiatric bent, with both sides claiming they care more for the mental wellbeing of women than their opponents. This is so phony that when Catholic priests come out and talk about the right to life, it's a refreshing change from tedious legalistic fidgey-wideyness and the moveable feast of victimology that is the waffle about mental health. The clerics are alone, though. Unfortunately no one on the choice side seems disposed to make an opposing argument while anti-abortion campaigners, who previously used such hyperbolic slogans as "Don't use me for spare parts" — shades of Michael Marshall Smith or Kazuo Ishiguro – now say "Abortion tears her life apart."
The shift in territory has been reflected in a change of tactics. Anti-abortionists claim abortions cause depression and suicide. Pro-choice campaigners claim pregnant women may become suicidal if denied an abortion. Quite apart from being mushy, therapeutic territory, this a pure sham-fight: one in 500,000 women die by suicide during pregnancy. Consider those numbers for a moment. No sensible law is made for such a small cohort.
For pro-choice campaigners suicide has become a proxy, a way of pushing the envelope on the issue to allow at least some abortions to be legally performed in the country. As a strategy it has been exposed as an unmitigated failure. Under the new law, a woman claiming suicidal ideation will have to receive a unanimous verdict from a panel of three doctors, one obstetrician and two psychiatrists, that she is likely to kill herself as a result of pregnancy. If this fails, a second panel of three doctors will be convened. The two alternatives to being allowed to have an abortion are, of course, being told to go away or, more worryingly, being sectioned under the Mental Health Act (2001).
Let's be clear: despite the potential for alarmism, Ireland is not the Soviet Union, and does not routinely lock-up perfectly well people in mental hospitals, but psychiatrists are empowered to admit patients against their will. The Mental Health Act's clause about "due regard to the autonomy" of the patient is well-meaning blather, but blather it is. If someone is genuinely perceived to be a threat to themselves or others, psychiatrists who, despite what Tom Cruise might tell you, as a rule do not want to act as medicalized para-jailers, are required to take drastic action. According to the Irish Mental Health Commission's most recent statistics, 1,623 people were involuntarily admitted to psychiatric hospitals in 2011. Of those, 122 were sectioned on the basis of depressive disorders. For women in a situation with a direct and somatic threat to life, such as the late Ms. Halappanavar, the bill may offer some comfort. One doctor will be empowered to perform an abortion in an emergency situation. Though this does offer some legal cover to doctors absent in current law, it is hard to see this as a significant departure from current practice.
In fact, though by no means pro-choice, the Irish public has demonstrated time and again that it does not want pregnant women to die during childbirth.
A 2012 poll conducted by research firm Red-C found 85 percent of those surveyed said they wanted the government to legislate to allow for abortions when a woman's life is threatened, including by suicide. Although this figure is likely to have been inflated by the tragic death of Halappanvar, poll after poll has indicated that the Irish public may not like abortion, but it is significantly more liberal on the issue than its political representatives. As far back as 1997, 77 percent of Irish people surveyed said there should be some access to abortion. The majority of Irish people, given the choice, would likely approve first-trimester abortions for any reason and thereafter for, at least, fatal fetal abnormality. Suicide is a contentious issue, but it is a fringe one.
And that is the key to the whole sorry tale of Ireland's sub rosa culture war over abortion: both sides are exaggerating. Pro-choice campaigners, distraught at decades of Catholic-inspired inertia are glad to see any movement on the issue, and so argue on a purely tactical and non-strategic basis. The fact that the campaigns are often led by careerist political insiders, well-meaning or otherwise, has a dampening effect on those who would seek to argue for more and on stronger grounds.
Anti-abortion campaigners, meanwhile, exaggerate the significance of the bill, saying that in all other countries that allow for abortion to obviate suicide risk it has led to abortion-on-demand. This claim isn't entirely without merit, but to generalize from it and to equate it with what is happening in Ireland ignores one salient fact: article 40.3.3 of the Irish constitution means it cannot happen.
Meantime, the reality remains the reality: no sane woman is going to put herself in front of six doctors, add mental health problems to her medical notes and, in rare cases, face what is effectively hospitalized imprisonment in order to obtain an abortion when she can instead board a flight to London.