Today marks the fifth anniversary of Savita Halappanavar’s untimely and preventable death in the Republic of Ireland. The doctors’ denial of a potentially life-saving abortion was largely influenced by the deeply conservative constitutional provisions in force in predominantly Catholic Ireland, which provide equal rights to the life of the pregnant woman and the foetus and places an obligation on the state, and therefore doctors, to protect those rights. While a constitutional provision states that this must be complied with “as far as practicable” and thus could be interpreted to not be applied in cases of fatal foetal abnormality, in practice, and in judgments that have come from courts, this is not the case. What has become the medical-legal norm is that the constitutional rights of the foetus have been interpreted as a right to be born, regardless of the quality or length of life that will follow and regardless of the cost to the mother.
The Mellet vs Ireland case that went to the UN in 2013 highlighted how the denial of termination of pregnancy services in Ireland, even when there is a fatal foetal condition that makes the survival of the foetus into a healthy infant either impossible or highly improbable, affects a woman’s health and ability to exercise her human rights. Mellet’s and Halappanavar’s cases demonstrate the limitations of the constitutional provisions, such that if an immediate risk to a woman’s survival, not health, is not perceived by medical practitioners, abortion services are denied, regardless of the consequences.
The UN’s Human Rights Committee’s decision in 2016 stated that Ireland had subjected Mellet to discrimination and had failed to provide her with the protection of, and equality before, the law. The committee also concluded that she has been subjected “to conditions of intense physical and mental suffering” that “amounted to cruel, inhuman or degrading treatment”. Further, the committee was of the opinion that Ireland, by denying her information on and access to abortion domestically, had arbitrarily and unreasonably interfered with Mellet’s right to privacy.
It is with the backdrop of these cases, and other cases which went to the European Court of Human Rights that all demonstrated the enormous costs borne by women with either unplanned, unwanted or unviable pregnancies, that Ireland decided to constitute a Citizens’ Assembly in 2016 to assess the country’s abortion laws. Over five weekends, 99 citizens attended meetings and presentations from activist organisations and medical and legal experts in the field of obstetrics and gynaecology, and heard recorded interviews of six women who had abortions. Considering that 3,000 women travel from Ireland to the British mainland every year seeking termination of pregnancy services, the assembly and its role was much needed.
The Citizens’ Assembly members were given several ballots that they all had the opportunity to vote on to collect their views on abortion services and when/why they should be provided. The findings of the assembly are currently being reviewed by an Oireachtas (Irish parliament) Committee which was constituted earlier this year to consider the constitution’s 8th amendment granting equal human and foetal rights. The Oireachtas Committee has six options to consider before proposing a question to parliament for consideration. The question, as finally decided by parliament, will go to the Irish population via a referendum in May/June next year and will pave the way for greater legislative reform.
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The six options the committee is deliberating upon are: an unconditional repeal of the 8th amendment; a repeal based on published legislation entrenched within the constitution; a repeal based on legislation published together with a referendum; repeal and replacement on specific grounds; repeal and replacement on broad grounds and/or expressing a rebalancing of rights; or finally, repeal and replacement with a provision conferring exclusive power on the Irish parliament to regulate.
Last week, the Oireachtas Committee published the first of its decisions, that the 8th amendment to the Irish constitution must be repealed or amended and cannot continue to exist as it does today in full. While promising, this should not give anyone wanting change in Ireland’s abortion law too much false hope. In practice, the Protection of Life During Pregnancy Act, 2013 (PLDPA) has already given some exceptions to the constitutional provision. Terminations are allowed under the 2013 Act when there is a “real and substantial risk of loss of the woman’s life from a physical illness” or when “there is a real and substantial risk of loss of the woman’s life by way of suicide”.
The repeal of the 8th amendment would therefore have little short-term gain for women, as the threshold for when women are allowed abortions currently is severely restricted by the PLDPA. The repeal would, however, enable amendments to be passed to the PLDPA, or even its repeal, which would no longer face the legal challenge of being against Ireland’s constitutional provisions. The Citizens’ Assembly report demonstrated that the existing provisions allowing terminations have universal support; 99% of the assembly members voted in favour of keeping the provision allowing a termination in cases of “real and substantial risk of loss of the woman’s life from a physical illness”, and 95% of voters supported allowing a termination when there is a “real and substantial risk of loss of the woman’s life by way of suicide”.
The interesting differences between the current 2013 legislation and the Citizens’ Assembly’s report are that 78% of the votes cast are in favour of allowing a termination when there is “a risk to the health of woman” for either physical or psychological reasons. The threshold of ‘risk to the health’ as opposed to ‘real and substantial risk of loss of the woman’s life’ must not go unnoticed. The wider definition will call for a significantly lower threshold of potential harm to be met to allow a termination legally and could have had lifesaving consequences for Halappanavar and life-changing consequences for Mellet and the thousands of women who travel to Britain ever year.
Within the 78% of voters who are in favour of liberalising the abortion laws, 61% are in favour of applying these up to 22 weeks of gestation and only 38% are in favour of allowing them to be applied with no limit on gestational age. For women to have full rights to privacy and freedom from cruel treatment, this needs further interrogation. The period of 20-24 weeks gestation sees rapid foetal development of key organs such as the brain, heart and kidneys. Medical technology is enabling conditions not compatible with life to be detected earlier now than ever before, but if the organs are not fully developed by 22 weeks, which is probable, life-limiting conditions may only be identified post this period. To avoid forcing women to continue with unviable pregnancies, such as Mellet, and to prevent them from needing to travel abroad to receive medical intervention, this must also be addressed.
The Citizens’ Assembly report offers hope. Eighty-nine percent of voters are in favour of allowing a termination of pregnancy if the foetus has a condition that is likely to result in death before or shortly after birth, with as many as 69% not wanting a gestational limit, and 80% were in favour of allowing a termination in cases where a significant foetal condition existed even when it is not likely to result in death before or shortly after birth. The Oireachtas Committee’s task of reaching an agreement and proposing a question to be placed before the population in next year’s referendum cannot be understated.
The process, even in its nascent stages, is showing signs of the tensions yet to come. Senators are making their personal and cultural beliefs known, declaring that the dignity and rights of the unborn must be protected and stating that doctors mustn’t forget that they have two patients to consider, the pregnant woman and the foetus. Further, it will essentially be upto the two dominant political parties to decide on the final referendum question when it is debated in parliament, and Fianna Fáil members have already overwhelmingly supported a call to not allow changes to the 8th amendment. This may, however, be taken as political positioning with little chance of being held to.
Last month, 30,000 people marched in Dublin to support the liberalisation of abortion laws and today, many are expected to assemble across the country to remember the preventable and deeply sad loss of Halappanavar’s life. In an effort to attract and retain young liberal voters, it remains possible that Ireland’s deeply-Catholic political parties will have to move with the times and protect women’s rights to healthcare, privacy and autonomy over their bodies. At a minimum. it appears likely the 8th amendment will be amended and the path to remove the criminalisation of abortion and the potential 14-year prison sentence for anyone found to have received or performed a termination will be laid. The liberalisation of abortion laws for a patient-centric approach must be the priority for the parliament and future law reform, and will no doubt be the subject for the next six months leading to the referendum. As the Indian parliament is set to again consider an amendment to the Medical Termination of Pregnancy Act, the outcome will surely be of interest in India too.
Severyna Magill teaches human rights law at Jindal Global University.