Graham Murtagh
Staff Writer
In Ireland, even in our bubble of liberalism, democracy and aren’t-we-great freedoms, there are still some things our society just doesn’t like talking about. Some subjects that we like to gloss over a little bit, because it makes us feel better than having to confront it. We’re tremendously good at forcing things back and retreating into ourselves rather than confronting what’s plainly obvious, in the hope that whatever it is will go away. Few in Ireland are alcoholics, they just like a drink. We’re not depressed, just having a bad day. And no one dare drop the A-word into polite conversation.
This morning, reports of the death of Savita Halappanavar shocked the country into action. The 31-year-old dentist was 17 weeks pregnant when she miscarried, but was denied access to a termination on the grounds of the presence of a foetal heartbeat, and died having contracted a rare form of septicemia. For most, this is an impossible situation to comprehend. It is inappropriate for us to comment on what is right and wrong in this situation without first understanding the facts, and that is the purpose of this article – to hopefully clarify when an abortion is legally permissible in Ireland.
In archaic language, the protection of the right to life in Ireland starts with section 58 of the Offenses Against the Person Act 1861, a provision that is still in force today. In more recent terms, concerns about the right to life in Ireland first stemmed from America, where their constitution is in some ways similar to ours. There, a right to privacy within the marriage was identified in a case called Griswald v Connecticut, and in identifying a similar right under Irish law and our Constitution, the Supreme Court looked to Griswald in the case of McGee v Attorney General in 1973. Skip forward a couple of years, and the Griswald judgment is further applied in Roe v Wade in the US Supreme Court, effectively finding a right to abortion in certain circumstances. The pro-life lobby in Ireland became worried – would Ireland again follow US jurisprudence and apply the decision in Roe?
To counteract that possibility (a mere possibility according to some commentators, who felt that the foetus was protected under Irish law already), the Irish people passed the Eighth Amendment to the Constitution in September 1983. This enactment was a relatively simple formula – Article 40.3.3º thereafter read ‘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’. Abortion was, for a while, a hot topic. Two key cases followed – in The Society for the Protection of the Unborn Child v Open Door Counselling Limited, the Supreme Court ruled that it was not unconstitutional to prevent assisted travel abroad in search of an abortion, but this was overruled by the European Court of Human Rights in a decision was not binding on Ireland in any event.
For over thirty years, an organised Irish Pro-Choice lobby has campaigned for legislative reform on the abortion question.
A separate case, The Society for the Protection of the Unborn Child v Coogan (taken in 1991), was heard against members of three Students’ Unions for disseminating information in relation to abortion – the Supreme Court upheld an injunction preventing the distribution of the pamphlets. This was qualified by a decision of the European Court of Justice on a technical point; namely, that the Students’ Union did not have any financial links to UK abortion clinics.
Traditionally, Ireland (like all European Union Members) had always been afforded a large scope to order its own affairs as it saw fit, having regard to cultural and sociological conditions, and on the issue of abortion the government was once again afforded this broad Margin of Appreciation that was to be free from external interference. Nevertheless, Ireland and the EU have always had a tense relationship on this problem of the Irish stance on abortion, and the difficulty was about to get a whole lot worse.
At the signing of the Maastricht Treaty in 1992, concerns were raised about one specific clause that, it was claimed, could reduce the protection offered to the foetus under the Constitution. The government sought assurances from EU Member States that Ireland’s position on abortion could not be altered under Maastricht, but with only days to go until the Treaty was signed, a change to the agreement wasn’t possible. Instead, a compromise position was adopted; the EU passed Protocol No. 17, which guaranteed the Irish constitutional position – that the right to life of the unborn was equal to that of the mother – and the Treaty was duly signed.
Ten days later, a governmental nightmare erupted. The tale of a 14 year old girl who became pregnant as a result of a rape was played out across the country for all to see. The parents of the girl, Ms. X, informed the Director of Public Prosecution’s office that they were intent on taking her to the UK for a termination, and a question arose as to whether DNA evidence from the aborted foetus could be used as evidence in prosecuting the rape. On hearing this development, the DPP won a High Court injunction restraining the abortive process from taking place. Protocol 17 had come back to haunt the government, since now, the rights of the mother and the unborn child were exactly the same at Constitutional and EU levels.
The Supreme Court decided to judge the case of Attorney General v X with reference to the Constitution alone (rather than including EU law), recognising perhaps that this was a distinctly national issue. In overturning the decision of the High Court and permitting the abortion to take place, the Supreme Court issued perhaps its most well known judgment – that an abortion shall be permitted ‘where there was a real and substantial risk to the life, as distinct to the health, of the mother’.
In the X Case itself, Ms. X described how she was at risk of suicide should the abortion not take place, and this was held to be sufficiently compelling to warrant to abortion by the Majority of the Court. An interesting dissent was issued by Mr. Justice Hedderman – in language the seems determined to restrict the availability of termination as an option as much as possible, the Judge took the view that suicide did not amount to a sufficient risk.
The outcome in the Supreme Court led to calls for legislation to take account of the decision, which the government (for the most part) decided to shy away from. To take cognizance of some of these developments, the government held referenda on the Thirteenth and Fourteeth amendments to the Constitution, which guaranteed a right to travel and a right to receive information about abortion respectively. Nevertheless, the door was left wide open on the specificity contained in the X Case judgment.
The issue of governmental failings to address the X Case came to the fore most recently in a 2010 decision of the European Court of Justice – A, B and C v Ireland. Three women took a case to the European Court to establish that they had been the victims of inhumane and degrading treatment as a result of a denial of access to termination services. One was successful on the facts of her particular case, where again Ireland was again afforded a broad Margin of Appreciation. However, the Grand Chamber of the European Court was severely critical of governmental inaction in the Republic. In a brief judgment, the court wrote a stinging rebuke that Ireland’s approach had led to uncertainty among doctors in giving advice, that the fact that abortion in Ireland was still governed by an outmoded 1861 Act had a chilling effect on women seeking terminations for legitimate reasons and that the perceived necessity to go to court to obtain an abortion was inappropriate and had left women feeling even further ashamed at a time when they needed greatest support.
Writing in the Dublin University Law Journal in 1996, Teresa Iglesias observed that laws reflect a society’s set of values at a given time, and can be changed. Courts, as a whole, avoid decisions about rights to life or when life begins, feeling out of their depth, and perhaps rightly so. The Constitutional position in Ireland is weakened by a lack of specificity; when does life begin? What does ‘due regard’ really mean? How does one establish any kind of priority if both lives are considered equal? And, to some extent, what is a ‘real and substantial risk’?
In the 1998 case of A and B v Eastern Health Board, it was observed in a sidebar comment by the High Court that ‘[it] should not become an authorisations board for abortions’. The time for a national debate leading to national action is now. Both the X Case and A, B and C v Ireland have gone ignored and swept under the rug for too long. Public outcry at Ms. Halappanavar’s death ought to be enough to remind ourselves that we can’t push this problem away forever.
We need to act. Now.
