Time for constitutional change on abortion in Ireland

Pro-choice campaigners make their feelings known at a protest in 2013. Niall Carson/Press Association Images

The high-profile case of a young woman forced to give birth in Ireland has highlighted the realities of Ireland’s recently introduced Protection of Life During Pregnancy Act 2013 – a law designed to regulate the limited situations in which abortion is available.

The unnamed woman, who has limited English language skills, reportedly became pregnant as a result of rape. She was suicidal and requested an abortion but was refused. Her baby was delivered by cesarean section in the 25th week of the pregnancy and will be taken into care.

It has been reported that the woman made it clear to the authorities she wanted an abortion in April, when she was around eight weeks pregnant, but was not given any information about how to acquire one until she went to a GP in July.

Exactly what happened during this period is unclear. What we do know from newspaper reports is that once she went to a GP and made a formal request for an abortion, two psychiatrists and an obstetrician agreed she was suicidal but she was not permitted to have an abortion. This was because, by the time that decision had been made, the foetus was considered to be viable – capable of surviving outside the womb.

We also know that the woman went on a hunger and liquid strike, resulting in a court order for forced hydration, which was administered. Although her exact immigration status is unknown, we know that she could not travel for an abortion – as most Irish women do if they seek an abortion and have the means to leave the country – because she did not have the required travel documents.

Even though we don’t know every detail of this case, what we have is enough to demonstrate the deep power imbalance that Ireland’s abortion law imposes on women who seek to exercise their autonomy and terminate their pregnancies. The imbalance was exacerbated by this particular woman’s circumstances: raped, not fluent in English, unable to travel, young and suicidal.

The case also demonstrates the significant power that the Irish approach to abortion gives to the medical profession. Under the 2013 Act, introduced to create what the government describes as “procedural rights” for women who seek abortions, access to abortion is a purely medical question. Where a woman’s life is at risk from a physical illness, two doctors must agree that this is the case, that termination of the pregnancy is required and (implicitly) that the foetus is not viable.

Where there is a risk of suicide, three doctors must assess the woman. Two must be psychiatrists and one must be an obstetrician. Conceivably, under the 2013 Act and its leaked but not yet officially published guidelines, a woman may have to come into contact with up to seven medics and “an interdisciplinary team” in order to determine whether she may have an abortion in Ireland. None of these doctors are required to disclose whether they have a personal objection to abortion.

Thus, rather than treat abortion as a matter of choice, autonomy or bodily integrity, Irish law treats it as a matter purely of medicine and, in so doing, abjectly disempowers women.

This flows from position put forward on abortion in the Irish constitution, which recognises “the unborn child” as a constitutional subject. Article 40.3.3, which was inserted in 1983, says “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.”

This provision, which has been conservatively interpreted, means that abortion is only available in Ireland when a woman will die without it. It also means that a pregnant woman and an unborn child have an “equal” right to life. Once a foetus is deemed viable, abortion is no longer possible, although an early delivery – as happened in this case – may be.

To get around these rules, women with the means to do so travel to the UK for abortions. Women without those means are left with two options. They can either import and take abortificients, which is a criminal offence, or continue their pregnancies against their will.

As long as the constitutional text remains as it is, it is difficult to see how any substantial improvement in abortion law can be achieved. The constitution can only be changed by a referendum of the people, and – although there are to be up to half a dozen referendums in 2015 – there appears to be no political appetite for an abortion referendum.

In this, the long story of abortion in Ireland as a failure of political leadership seems set to continue. Only a constitutional change can truly empower women in Ireland to make decisions about their lives, their bodies, their pregnancies and their potential motherhood.