This article was written by Emily Peel for Contax Law. Contax Law supports the Human Rights Blog as an advocacy space for important human rights issues and themes. Emily is a New York-qualified lawyer who has worked on human rights, access to justice, and protection issues in Kosovo, Greece, and the East and Horn of Africa. Photo Credit: Edson Chilundo at https://bit.ly/2KUpQ5e
On 25 May 2018, the people of Ireland will vote in a national referendum on whether to repeal the Eighth Amendment to the Constitution. The referendum is a critical moment for women and girls* that could pave the way for crucial legislative reform of Ireland’s draconian abortion laws. Repealing the Eighth will remove a constitutional restriction that has prevented the Oireachtas (the Irish legislature) from developing legislation in line with international health standards and human rights obligations. If repealed, the Eighth would be replaced by a provision that takes the regulation of abortion out of the constitutional realm, placing it in the exclusive domain of the Oireachtas.
What is the Eighth Amendment?
The Eighth Amendment provides the foetus with a constitutional right to life, and asserts that this foetal right is equal to the right to life of the pregnant woman. It was intended to ensure the absolute prohibition of abortion in Ireland in the context of a global and national shift towards decriminalising and increasing access to safe and legal abortions in the 1970s and 1980s. Passed by popular referendum in 1983, it was the first time globally that a constitution explicitly established and protected a foetal right to life.
Senator Ivana Bacik describes the Eighth as ‘uniquely misogynistic in that it expressly sets up the right to life of both the pregnant woman and the foetus that she carries in conflict.’ The unenviable job of balancing these competing rights fell to the judiciary in the 1992 case Attorney-General v. X where the Supreme Court held that the Eighth should be interpreted to allow abortion where a ‘real and substantial risk’ to the life of the mother exists, including suicide. This was later codified under the 2013 Protection of Life During Pregnancy Act (PLDPA).
The Eighth Amendment is again the subject of a national referendum because this is the only way that the Irish Constitution can be changed. If Ireland votes ‘Yes’ in the referendum, article 40.3.3 will be repealed and replaced with the words ‘Provision may be made by law for the regulation of termination of pregnancies.’
The Crime of Abortion
Ireland’s abortion laws are amongst the most restrictive in the world and have repeatedly been found to violate women’s and girls’ rights, including their rights to health, equality and non-discrimination, information, privacy, and freedom from torture or other ill-treatment. Although the Irish authorities accept that current law and practice are in breach of Ireland’s international human rights obligations, they have consistently maintained that it is impossible to address because of the Eighth.
Abortion is criminalised under Irish law, except for where there is a ‘real and substantial’ risk to the life of the mother, and carries a maximum sentence of 14 years imprisonment. Health professionals have emphasised the artificial and arbitrary distinction between risk to life and risk to health of the mother, now codified under the 2013 Protection of Life During Pregnancy Act (PLDPA). In their submission to the UN Human Rights Committee, Doctors for Choice stressed that ‘…there is no one clear, exact moment in time when all doctors will agree that a threshold has been crossed and a termination is necessary… Mandating non-intervention until a woman’s life related health deteriorated to the extent that her life is at risk is dangerous.’
This danger has been demonstrated time and again by tragic and preventable fatalities, such as that of Savita Halappanavar. The clinical difficulty in drawing the line between risk to health and life is further compounded by two factors: burdensome procedural requirements placed on women to prove there is a risk to life; and severe criminal sanctions for doctors if they are found to have made the wrong call. Together, these factors make access to abortion extremely difficult, even within the risk to life exception, and result in women and girls enjoying only a qualified right to health. The criminalisation of abortion in cases of fatal foetal abnormalities, rape and incest has been widely criticised by UN treaty bodies, and found to breach Ireland’s international human rights obligations.
Although abortion in Ireland is criminalised, women and girls’ right to travel abroad for abortions is constitutionally protected under the Thirteenth amendment to the Constitution and the PLDPA. The Thirteenth amendment underscores the hypocrisy of Ireland’s current abortion law and practice, which maintains a ‘not under my roof’ approach that is fundamentally discriminatory; women and girls who have the means and capacity to travel abroad are able to access abortions and maternal healthcare. Women and girls who are unable to travel for a multitude of reasons, including poverty, health issues, disability, cultural reasons, or legal status (asylum seekers), face a difficult decision: carry unwanted or dangerous pregnancies to term, or secure unlawful abortions and risk health complications and criminal sanction.
The realities faced by the ‘lucky’ women who are able to travel are harrowing. Stories of women travelling alone and in pain, medical complications, lack of aftercare and support, and the trauma of undergoing abortion procedures in an unfamiliar country are all too common. The Human Rights Committee has recognised the severe impact that being forced to travel to access abortion services has on women. In the recent case of Mellet v. Ireland the Human Rights Committee found that Ireland had violated Ms. Mellet’s right to freedom from cruel, inhuman or degrading treatment. This was in part due to the fact that she had to ‘travel to another country while carrying a dying foetus, at personal expense and separated from the support of her family, and to return while not fully recovered.’
Information on Abortion
Access to information on abortion is also strictly controlled and regulated, exacerbating the already significant legal and procedural obstacles that women face. Although the Fourteenth Amendment protects the right to distribute information on foreign abortion services, the 1995 Regulation of Information Act prohibits ‘advocacy or promotion’ of abortion, and healthcare providers and pregnancy counsellors can face a criminal conviction and fine of up to €4000. In practical terms, this means that healthcare professionals cannot medically refer patients to doctors abroad, are not allowed to provide information on abortion unless specifically asked, and if they are specifically asked about abortion must also provide information on ‘all the courses of action that are open to [the woman].’ These restrictions are considered necessary by the legislature to protect the foetal right to life enshrined under the Eighth, but have been repeatedly criticised by the UN Human Rights Committee as violating Ireland’s freedom of expression obligations, most recently in the case of Siobhán Whelan.
Repeal the Eighth
Ireland’s approach to abortion is riddled with contradictions. The legislature and judiciary have attempted to pay lip-service to international human rights obligations whilst simultaneously protecting the foetal right to life under the Eighth Amendment. The Eighth Amendment is fundamentally incompatible with international human rights and health standards, and this approach has resulted in a tangled mess of laws and practices that fail women at every turn.
As the referendum rapidly approaches, extraordinarily brave women and girls across Ireland have shared their personal abortion experiences. The Eighth Amendment was passed based on the belief that women cannot be trusted; a belief that has remained at the heart of anti-choice campaigning in the run up to the 2018 referendum. This lack of trust has manifested in a legal system that strips women of their fundamental rights to bodily integrity and access to healthcare as soon as they fall pregnant.
Women’s rights are violated in the name of protecting the ‘unborn’, and yet research has consistently demonstrated that criminalising abortion does not prevent it. According to Repeal the Eighth, over 199,200 Irish women are estimated to have had abortions since 1968, with 3,268 women recorded as traveling to England for abortions in 2016 alone. It is clear that the Eighth Amendment does not stop all women who need and want abortions from accessing them. What the Eighth Amendment has done, however, is shape a legal system that punishes pregnant women and girls: denying them access to basic healthcare; forcing them to jump through traumatic legal, procedural, and logistical hoops; and discriminating against the most vulnerable women and girls in society.
- On 25 May 2018, get out and vote and encourage others to do so too.
- Find out who can vote and how here.
- Consider making a donation to one of the pro-choice organisations working hard to reach voters across Ireland with accurate information ahead of the referendum, such as Repeal the Eighth.
Talk About Abortion
- The stigma surrounding abortion in Ireland is deeply damaging. It is at the heart of many women’s experiences, and serves to reinforce misinformation around abortion law and practice.
- Talk to friends, relatives, neighbours, and the person who delivers your post about what the Eighth means for Irish women.
*Recognising that transgender, non-binary and gender fluid persons also require access to abortion, and face specific obstacles and trauma with regard to pregnancy and abortion, where the term ‘women and girls’ is used the author means all people who may need access to abortion and reproductive healthcare.