Abortion in the Republic of Ireland
Abortion in Ireland is illegal unless it occurs as the result of a medical intervention performed to save the life of the mother. It is currently regulated by the Protection of Life During Pregnancy Act 2013. Unborn life has constitutional protection in Article 40.3.3°, which was inserted by the Eighth Amendment in 1983, and reads,
|“||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 availability of abortion services can be even more restricted in the absence of a readily available method of determining the circumstances in which an abortion might be lawfully obtained.
Abortion is a controversial issue in Irish politics and referendums were held on the matter in 1983, in 1992, and in 2002.
In 2013, Ireland passed a new law allowing abortion under certain circumstances. The law provided for a woman's right to an abortion if her life is at risk, including from suicide. Information on abortion services outside the state is also constitutionally protected, and is regulated by the Regulation of Information (Services Outside the State For Termination of Pregnancies) Act, 1995.
Life in Ireland
At independence from the UK in 1922, the Offences against the Person Act 1861 remained in force, maintaining all abortions to be illegal and subject to punishment although it was widespread. Fears were expressed in 1929 of an increase in criminal abortions and infanticide by minority politicians, following the passing of the passing the Criminal Law Amendment Act which prohibited all appliances and substances for contraception and no exceptions whatsoever were made. Over 100 Irish women were dying annually from unsafe backstreet abortions in the 1930s. In 1938 the Irish abortion trail to the UK began, when the Aleck Bourne case established the defense to criminal charges by abortionists, that they were acting to protect the health of the woman or where social and economic distress was involved. There were no prosecutions for illegal abortions between 1938 and 1942 but as a result of travel restrictions imposed during the war years there were 25 cases prosecuted between 1942 and 1946. During the late 1930s/early 1940s up to 400 terminations (both legal and illegal) were performed daily in England and Wales, and given the high emigration rates it is likely that there was widespread knowledge of the possibility of obtaining backstreet abortions in England by Irish people. The Bell Magazine in 1941 said that some young women from well off backgrounds were "hustled off, normally to London, Paris, Biarritz, comes back without the baby and nobody is any the wiser" After the war the level of prosecutions decreased though this only relates to abortions that went wrong or were found out. Those found guilty were dealt with severely by the courts, receiving long sentences of penal servitude with one chemist with an extensive abortion practice in Merrion Square, Dublin in 1944 receiving a 15-year sentence that was reduced to 7 on appeal. The Garda Commissioner's first annual report on crime published in 1947 made reference to the number of abortions that were been performed illegally. In the 1950s novels, autobiographies and works of non fiction (including medical texts) that promoted or even described abortion were banned. There were extremely few prosecutions for performing illegal abortion between 1952 and 1963. but one of Ireland's best-known abortionists, Mamie Cadden, was famously sentenced to death by hanging in 1957 – this was later commuted to life imprisonment – when one of her patients died. The passing of the UK Abortion Act 1967 made access to the treatment easier for Irish women and the instance of infanticide, which was prevalent, became to decline sharply. Ireland seemed to undergo a delayed sexual revolution, experiencing in the 1970s what many other nations had reputably in the 1960s, with publications appearing on sexual matters, which included interviews appearing with women who had abortions in England. In 1974, Noel Browne became the first member of the Oireachtas to advocate publicly the provision of therapeutic abortion services in the Irish State during a contribution to a Senate debate. In 1975, future President of Ireland, Mary McAleese, chaired a meeting at Liberty Hall that advocated a woman's right to choose and was quoted as saying that "I would see the failure to provide abortion as a human rights issue". She later claimed that she misunderstood the nature of the meeting. In 1983 the Constitution of Ireland was amended to add the Eighth Amendment, which asserted that the unborn had an explicit right to life.
In 1992, a controversy arose over the issue of whether a suicidal minor who was pregnant from statutory rape could leave Ireland for an abortion that is lawful in another country (Attorney General v. X, known as the 'X Case'). Another referendum was held in 1992, in which two amendments were passed that established the 'right to travel' and the 'right to information'. A third proposal, the proposed Twelfth Amendment, would have further restricted abortion laws in Ireland, but was defeated.
A further referendum was held in 2002 on the Twenty-fifth Amendment, which would have removed the threat of suicide as a grounds for legal abortion. It also proposed reducing protection for the unborn to those already implanted in the womb. It too was defeated.
A, B and C v Ireland
In 2005, two Irish women and a Lithuanian woman who had previously travelled to England for abortion brought suit in the European Court of Human Rights asserting that restrictive and unclear Irish laws violate several provisions of the European Convention on Human Rights. The case, A. B. and C. v. Ireland, was heard before the Grand Chamber of the Court on 9 December 2009 and was decided on 16 December 2010. In that case the Court ruled that the first two women's rights were not violated by being forced to travel because Irish law was "legitimately trying to protect public morals". ECHR also ruled that Irish law struck a fair balance between the women's rights to respect of their private lives and the rights of the unborn, although it found that Ireland had violated the Convention by failing to provide an accessible and effective procedure by which a woman can have established whether she qualifies for a legal abortion under current Irish law. The Court's decision is binding on Ireland and all of the member states of the Council of Europe.
In current obstetrical practice, rare complications can arise where therapeutic intervention (including termination of a pregnancy) is required at a stage when, due to extreme immaturity of the baby, there maybe little or no hope of the baby surviving. In these exceptional circumstances, it may be necessary to intervene to terminate the pregnancy to protect the life of the mother, while making every effort to preserve the life of the baby.
A government-appointed Expert Group on Abortion released its findings in November 2012, saying that Ireland was obliged to implement the court's decision and recommending legislative and statutory reform.
The death of Savita Halappanavar led to protests in 2012 demanding changes to Ireland's anti-abortion laws and a highly public investigation by the Health Service Executive, because after a miscarriage had been diagnosed, she was denied an abortion because the fetus's heart was still beating. In response to the report of the expert group and to the controversial death of Savita Halappanavar in an Irish hospital, the government announced that it would enact legislation clarifying the health circumstances under which termination is permitted.
On 30 April 2013, the government published 33 pages of draft legislation for the Protection of Life During Pregnancy Bill 2013 (previously entitled Protection of Maternal Life Bill 2013) with the intention of enacting the legislation before the 2013 Dáil summer recess. The Bill was approved by the Dáil in the early morning of 12 July 2013. On 30 July 2013, President Michael D. Higgins signed off on the Protection of Life During Pregnancy Act 2013.
PP v. HSE
Later in the year, another woman—declared brain dead on Wednesday, 3 December 2014, four days after a head injury as the result of a fall—was artificially kept alive against her family's wishes so her fetus could hopefully come to term. She had been hospitalised initially, prior to the fall, for a cyst in her brain. According to a Friday, 26 December 2014 online news story article by the Associated Press (AP) that was featured in the online edition of the New York Times (under European news), the three-judge Dublin High Court ruled, in a 29-page ruling, that all life support should end, three weeks after the woman was declared clinically dead. The court accepted the experts testimony that the fetus could not survive the extra two months required for a viable delivery. The legal and constitutional question, since the mother was already ruled clinically dead, was whether the fetus had any chance of being born alive. It was still unsettled as to how the Irish courts would rule in the future if a woman was brain dead and her fetus had a much better chance at being born alive- i.e., if it was much closer to the point of viability, even if it would be born with major problems; under the current Irish abortion law, both parties are regarded as having an equal right to life, and the only provision for an abortion is if the mother faces a life-threatening medical problem, which as described above was allowed in 2013 after the 2012 death from sepsis of Savita Halappanavar, a different predicament than this woman, who was already ruled brain dead. Even the Catholic Archbishop of Dublin, Diarmuid Martin, had stated that he would not object, since the mother was clinically dead and the fetus had no chance for survival; the Church had questioned why Ireland had not come up with more specific guidelines, specifically for these types of situations where the woman is ruled brain dead and the fetus cannot survive. The Health Ministry was to examine the ruling; both sides indicated they would accept the ruling and would not appeal to the Irish Supreme Court, which had been on standby. Life support machines were disconnected on Friday, 26 December 2014.
The law which governs abortion in Ireland is the Protection of Life During Pregnancy Act 2013.
There is a single offence of the intentional destruction of "unborn human life" with a maximum sentence being reduced from life imprisonment to 14 years. The 2013 Act further provides that abortion is legal when there is a real and substantial risk to a woman's life (including risk brought about by a threat of suicide), and where the procedures carried out in the Act are complied with.
Pre-2013 legal situation
Before this act, the laws which governed abortion in Ireland were section 58 and 59 of the Offences against the Person Act 1861. As amended and in force these provide that:
58. Every Woman, being with Child, who, with Intent to procure her own Miscarriage, shall unlawfully administer to herself any Poison or other noxious Thing, or shall unlawfully use any Instrument or other Means whatsoever with the like Intent, and whosoever, with Intent to procure the Miscarriage of any Woman, whether she be or be not with Child, shall unlawfully administer to her or cause to be taken by her any Poison or other noxious Thing, or shall unlawfully use any Instrument or other Means whatsoever with the like Intent, shall be guilty of [an offence], and being convicted thereof shall be liable, ..., to [imprisonment] for Life ....
59. Whosoever shall unlawfully supply or procure any Poison or other noxious Thing, or any Instrument or Thing whatsoever, knowing that the same is intended to be unlawfully used or employed with Intent to procure the Miscarriage of any Woman, whether she be or be not with Child, shall be guilty of [an offence], and being convicted thereof shall be liable, ..., to [imprisonment for a term not exceeding five years].
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.
Nine years after the adoption of this amendment the Attorney-General applied to the High Court for an injunction preventing a fourteen-year-old girl, who was pregnant as the result of rape, from travelling abroad for an abortion in the United Kingdom, where abortion is lawfully available. Ultimately the Supreme court ruled that it had jurisdiction derived from the constitution to grant such an injunction but declined to do so on the basis that her suicidal condition constituted a risk to her life which would justify an abortion. The case, known as the X case generated great controversy on both sides of the abortion debate and has resulted in a further four referendums being put to the people two of which passed, these being the thirteenth and fourteenth amendments. These added two sentences to the text inserted by the eighth amendment:
This subsection shall not limit freedom to travel between the State and another state.
This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.
A third proposal in 1992, the proposed Twelfth Amendment, would have excluded the threat of suicide from justifying an abortion, but was defeated.
A further referendum was held in 2002 on the Twenty-fifth Amendment of the Constitution Bill, 2002, also proposed to remove the threat of suicide as a grounds for legal abortion, and also failed.
Several polls have been taken on the subject:
- A 1997 Irish Times/MRBI poll found that 18% believed that abortion should never be permitted, 77% believed that it should be allowed in certain circumstances (this was broken down into: 35% that one should be allowed in the event that the woman's life is threatened; 14% if her health is at risk; 28% that "an abortion should be provided to those who need it") and 5% were undecided.
- A September 2004 Royal College of Surgeons survey for the Crisis Pregnancy Agency found that, in the under-45 age groups, 51% supported abortion on-demand, with 39% favouring the right to abortion in limited circumstances. Only 8% felt that abortion should not be permitted in any circumstances.
- A September 2005 Irish Examiner/Lansdowne poll found that 36% believe abortion should be legalised while 47% do not.
- A June 2007 TNS/MRBI poll found that 43% supported legal abortion if a woman believed it was in her best interest while 51% remained opposed. 82% favoured legalisation for cases when the woman's life is in danger, 75% when the foetus cannot survive outside the womb, and 73% when the pregnancy has resulted from sexual abuse.
- A January 2010 Irish Examiner/Red C online poll found that 60% of 18- to 35-year olds believe abortion should be legalised, and that 10% of this age group had been in a relationship where an abortion took place. The same survey also showed that 75% of women believed the morning-after pill should be an over-the-counter (OTC) drug, as opposed to a prescription drug.
- A September 2012 Sunday Times/Behaviour and Attitudes poll of 923 people showed that 80% of voters would support a change to the law to allow abortion where the life of the woman was at risk, with 16% opposed and 4% undecided.
- A November 2012 Sunday Business Post/Red C poll of 1,003 adults showed that 85% of voters would like the government to "Legislate for the X case, which means allowing abortion where the mother's life is threatened, including by suicide", with 10% opposed and 5% undecided. The same poll also found that 82% of voters supported "A constitutional amendment to extend the right to abortion to all cases where the health of the mother is seriously threatened and also in cases of rape", and 36% of voters supported "A constitutional amendment to allow for legal abortion in any case where a woman requests it". In addition, 63% of voters also supported "A constitutional amendment to limit the X case, by excluding a threat of suicide as a grounds for abortion, but still allowing abortion, where the mother's life is threatened outside of suicide".
- A January 2013 Paddy Power/Red C poll of 1,002 adults found that 29% of voters believed that there should be a constitutional amendment to allow abortion "in any case where the woman requests it". 35% supported legislating for the X case allowing for abortions where the life of the mother is at risk, including from suicide. 26% supported legislating for the X case but excluding suicide and 8% believed no legislation at all was necessary.
- A January 2013 Sunday Times/Behaviour and Attitudes poll of 916 voters found that 87% would support legislation to provide abortion where the woman's life was in danger for reasons other than threat of suicide, 80% would support legislation to provide abortion where there was a foetal abnormality meaning the baby could not survive outside of the womb, 74% would support legislation to provide abortion where the pregnancy was a result of rape, and 59% would support legislation to provide abortion where the woman displayed suicidal feelings. Overall, 92% supported allowing abortion in one of these four circumstances, while 51% supported allowing abortion in all four circumstances.
- A February 2013 Irish Times/Ipsos MRBI poll of 1,000 voters in face-to-face interviews in all constituencies found that 84% felt that abortion should be allowed when the woman's life is at risk, 79% felt that abortion should be allowed whenever the foetus cannot survive outside the womb, 78% felt that abortion should be allowed in cases of rape or incest, 71% felt that abortion should be allowed where the woman is suicidal as a result of the pregnancy (the X case result), 70% felt that abortion should be allowed when the woman's health is at risk, and 37% felt that abortion should be provided when a woman deems it to be in her best interest.
- A June 2013 Irish Times/Ipsos MRBI poll of 1,000 voters in face-to-face interviews in all constituencies found that 75% were in favour of the government's proposed legislation (the Protection of Life during Pregnancy Bill 2013), with 14% opposed and 11% choosing "Don't know". Furthermore, 89% felt that abortion should be allowed when the woman's life is at risk, 83% felt that abortion should be allowed whenever the foetus cannot survive outside the womb, 81% felt that abortion should be allowed in cases of rape or abuse, 78% felt that abortion should be allowed when the woman's health is at risk, 52% felt that abortion should be allowed where the woman is suicidal as a result of the pregnancy, and 39% felt that abortion should be provided when a woman deems it to be in her best interest.
- A September 2014 Sunday Independent/Millward Brown poll found that 56% of voters were in favour of holding a referendum to repeal the Eighth Amendment to the Constitution, with 19% against and 25% undecided. In addition, 60% of voters were in favour of allowing abortion where there is a threat of the woman's suicide, 69% when the pregnancy arose as the result of rape, 72% when there is a risk to the woman's life (other than suicide) and 68% where there is a threat to the woman's long-term health. When it comes to allowing abortion "for other reasons", 34% are in favour, 38% opposed and 20% saying "it depends".
Irish women seeking abortions in Britain
Estimates as to the number of Irish women seeking abortions in Britain vary. In 1980 Marian Finucane won the Prix Italia for a documentary on abortion, she interviewed a woman who was about to have an abortion, had travelled with her to England, been with her in the hospital and talked to her afterwards. In 2001, an estimated 7,000 women travelled abroad to obtain an abortion. Statistics showed that 4,149 Irish women had abortions in Britain in 2011.
In May 2007 a 17-year-old girl, known only as "Miss D", who was pregnant with a foetus suffering from anencephaly (the absence of a major portion of the brain, skull, and scalp; blind, deaf, unconscious, and unable to feel pain, a disorder which is universally fatal), was prevented from travelling to Britain by the Health Service Executive. The High Court ruled on 9 May 2007 that she could not lawfully be prevented from travelling even though she was a ward of the state.
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