March 8, 2018 7:20 pm
By Zoe Tongue
Ireland is to have a referendum on repealing the Eighth Amendment to the Constitution, which recognises the right to life of the unborn as equal to that of the pregnant person.[1] Ireland has one of the most restrictive abortion laws in Europe, permitting abortion to be carried out only where the pregnant person’s life is at risk from physical illness or suicide.[2] Abortion is illegal in all other circumstances, even where there is a serious risk to health, the pregnancy is the result of rape or incest, or the foetus has a fatal abnormality. Those requiring abortions must travel abroad, with an estimated 170,000 pregnant people travelling from Ireland to access abortion services elsewhere between January 1980 and December 2016.[3] The alternative for those unable to travel, most often minors, asylum seekers, those in abusive relationships, and people with the lowest incomes, is to have an illegal abortion, with the accompanying health risks and the risk of a fourteen-year maximum sentence. This article will address the significance of the ‘Repeal the Eighth’ referendum, by looking at how discourse around abortion has been controlled by Ireland’s cultural and religious identity and the historical stereotypes of women.
Ireland is a largely Catholic country, giving religious institutions a dominant role in areas such as abortion, with Ireland’s prominently conservative politicians claiming that Ireland’s restrictive abortion law is premised on the country’s allegedly ‘profound moral views’[4] of when life begins. Ireland’s current abortion law is also rooted in oppressive stereotypes of women, valued primarily for their capacity as wives and mothers. Ireland’s Constitution determines a woman’s place as in the home; Article 41.2.1° states that ‘by her life within the home, woman gives to the State a support without which the common good cannot be achieved.’ Constitutionalising the relationship between women and the State entrenches the role of women as reproducing the population and reinforcing national identity through motherhood.[5]
Thus, narratives around the role of women and abortion have fed into Ireland’s national identity, allowing politicians to claim the ‘unity’ of the country’s moral views. The importance of national identity and unity is unsurprising considering Ireland’s complex history, and the desire to be distinct from Britain but undivided within the country. Ruth Fletcher identifies that discourse around abortion invokes ‘a concept of Irish ethnicity that needs protection from post-colonial Britishness […] in encouraging propagation of the Irish race and in distinguishing Irish cultural values.’[6] This racialising of abortion was obvious in an Irish case where the protection of the unborn was apparently not invoked for a Nigerian foetus, when a pregnant Nigerian woman was to be deported. This case is evidence against the claim that all ‘unborn children’ are equal to the lives of pregnant people and evidence that opposition to abortion originates from the need to ‘protect’ Irish national and ethnic unity.
In 1983, four months after the Eighth Amendment was introduced, a 15-year-old girl, Ann Lovett, left her school and gave birth alone in a Grotto, after concealing her pregnancy. Both she and the baby died and, following her death, a radio show received an influx of letters from people who had also suffered while hiding their pregnancies.[7] In 1997, despite the exception for suicide established five years earlier, a 13-year-old girl who had become pregnant from rape and became suicidal had to travel to the UK for her abortion. Last year, another young girl who became suicidal because of her pregnancy was told that an abortion was “not the solution” and was instead sectioned, despite psychological evidence that she did not have a mental health disorder. More recently, an asylum seeker who became pregnant as the result of rape,was unable to obtain an abortion on the grounds of suicide, was forcibly hydrated after she went on a hunger strike, and the foetus was delivered at 25-weeks, against her will, by caesarean section.[9] The most sobering example is the death of Salvita Halappanavar in 2012. She was 17-weeks-pregnant when she began to miscarry and when she asked for a termination, she was refused, being told that “this is a Catholic country.” The foetus was only removed from her womb once it had died, but Salvita also died from septicaemia. An abortion would have saved her life.[10] The UN recently found Ireland’s abortion law to violate the right to freedom from inhuman and degrading treatment in two cases involving women who were forced to travel to the UK to terminate their pregnancies, after being told the foetuses would not survive. Ireland’s extreme abortion
However, attitudes in Ireland are changing. Continuous pro-choice activism and the results of Ireland’s Citizens Assembly have culminated in a referendum on repealing the Eighth Amendment which will take place at the end of May.[11] The Citizen’s Assembly consisted of 99 randomly selected Irish citizens who were presented with submissions of first-hand experiences of abortions, and information from experts and advocacy groups for both pro-choice and anti-abortion campaigns; 87% of members then voted that Article 40.3.3 of the Constitution should not be retained in full. One of the Assembly members subsequently commented that the Irish public would vote to allow abortion in all circumstances if they were given the same information.[12] Conservative politicians have also started to express support for access to abortion; in his speech announcing the upcoming referendum, the Taoiseach Leo Varadkar, who had previously taken an anti-abortion stance, said that Ireland could not ‘continue with a situation where women in crisis are risking their lives through the use of unregulated medicines.’[13] Abortion up to 12-weeks without requiring a specific situation is currently being proposed, as the Protection of Life During Pregnancy Act 2013 would also need to be amended or replaced with legislation regarding the new legal limits of abortion access. would be an incredible step for Ireland, but the autonomy and integrity of pregnant people will never be fully realised while a criminal offence with a 14-year maximum sentence is in effect.[14]
The reform of Ireland’s archaic stance on abortion, which affords no autonomy to pregnant people, is long overdue. Legalisation is not enough – the full decriminalisation of abortion is also necessary. The criminalisation of abortion does not protect foetal life and the punitive aims of the criminal law continue to stigmatise people that make the decision to terminate their pregnancies. This is a distant goal, however. The UK is yet to decriminalise its abortion law, with the Offences Against the Person Act 1861 imposing a maximum life sentence on people that have abortions outside the remit of the Abortion Act 1967. This act introduced exceptions to the offence but this was never extended to Northern Ireland, where abortion is illegal except to save the life of the pregnant person or where there would be serious, long-term injury to their physical or mental health. Even if Ireland does successfully vote to repeal the Eighth Amendment and liberalise its abortion laws, pregnant people in Northern Ireland will continue to suffer and so the fight for abortion rights across the UK and Ireland cannot subside.
[1] The term ‘pregnant person’ will be used to include transgender men and non-binary individuals that can become pregnant, except where gender is specifically relevant.
[2] Protection of Life During Pregnancy Act 2013, which put the Eighth Amendment and the AG v X [1992] IESC 1 suicide exception on a statutory basis.
[3] Irish Family Planning Association, Abortion in Ireland: Statistics <https://www.ifpa.ie/Hot-Topics/Abortion/Statistics>
[4] ABC v Ireland [2010] ECHR 2032 [241]
[5] Lisa Smyth, ‘Narratives of Irishness and the Problem of Abortion: The X Case 1992’ (1998) Feminist Review 61
[6] Ruth Fletcher, ‘Reproducing Irishness: Race, Gender, and Abortion Law’ (2005) Canadian Journal of Women and Law 365
[7] Róisín Ingle, ‘The Ann Lovett letters: sorrow, shame, anger, and indignation’ (The Irish Times, 31 January 2017) <https://www.irishtimes.com/life-and-style/people/the-ann-lovett-letters-sorrow-shame-anger-and-indignation-1.1673920>
[8] Kitty Holland, ‘Girl sectioned after psychiatrist ruled out abortion’ (The Irish Times, 12 June 2017) <https://www.irishtimes.com/news/social-affairs/girl-sectioned-after-psychiatrist-ruled-out-abortion-1.3116111>
[9] The Irish Times, ‘Ms Y, asylum seeker refused an abortion, sues State’ (18 March 2016) <https://www.irishtimes.com/news/crime-and-law/courts/high-court/ms-y-asylum-seeker-refused-an-abortion-sues-state-1.2578920>
[10] Kitty Holland, ‘Woman ‘denied a termination’ dies in hospital’ (The Irish Times, 14 November 2012) <https://www.irishtimes.com/news/woman-denied-a-termination-dies-in-hospital-1.551412>
[11] Henry McDonald, ‘Irish referendum on abortion reform to be held by end of May’ (The Guardian, 29 Jan 2018) <https://www.theguardian.com/world/2018/jan/29/ireland-to-greenlight-referendum-on-abortion-law-reform>
[12] Ronan McGreevy, ‘Why did Citizens’ Assembly take a liberal view on abortion?’ (The Irish Times, 30 June 2017) <http://www.irishtimes.com/news/social-affairs/why-did-citizens-assembly-take-liberal-view-on-abortion-1.3138280>
[13] The Irish Times, ‘‘Safe, legal and rare’: full text of Taoiseach’s abortion speech’ (30 January 2018) <https://www.irishtimes.com/news/social-affairs/safe-legal-and-rare-full-text-of-taoiseach-s-abortion-speech-1.3373468>
[14] Fiona De Londras and Mairead Enright, Repealing the 8th (Policy Press, 2018) Chapter 2
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