In recent days, we have seen yet again the tragic consequences of the Eighth Amendment. A young rape victim in a crisis pregnancy has been forced to endure invasive medical procedures against her will. The woman herself, and the baby delivered prematurely, have been failed terribly by our laws. All of us should feel immense sympathy and compassion for them both. The case raises serious human rights issues.
The young woman interviewed this week by Kitty Holland and Ruadhán Mac Cormaic, having discovered she was pregnant soon after her arrival in Ireland this year, sought an abortion early in her pregnancy but was unable to travel abroad for one.
She became suicidal, attempted to kill herself and went on hunger strike, but we understand that her pregnancy was only diagnosed as posing a risk to her life too late for an abortion to be performed. Instead, the baby was delivered at about 25 weeks by Caesarean section.
Not all the circumstances are clear, and the HSE has made the welcome announcement that it will review the case.
However, it is clear that this appalling case is a direct result of the 1983 Eighth Amendment. That enshrined article 40.3.3 in our Constitution, providing for equal rights to life of both “mother” and “unborn”.
In the 1992 X case, the Supreme Court interpreted this article to mean that a pregnant rape victim was entitled to an abortion only where the pregnancy posed a “real and substantial” risk to her life.
Because of the Eighth Amendment, abortion is thus only lawful in Ireland where a pregnancy poses a risk to the life of a woman. Pregnancy may not be terminated on any other ground; not rape, nor where it poses a serious risk to a woman’s health; nor even in fatal foetal abnormality.
Our law portrays women as vessels, forced to carry unwanted pregnancies to term. But that’s not the reality for most women in hypocritical Ireland. In 1992, we amended article 40.3.3 to allow the right to travel for abortion. So we now have a two-tier regime. Women who can travel abroad to terminate their pregnancies do so in their thousands every year. Last year alone, 3,679 Irish women had abortions in British clinics.
Most restrictive law
Since the passing of the 1983 amendment, more than 150,000 women have made that journey. We may have the most restrictive law on abortion in Europe, but the Irish abortion rate is comparable with that of every other EU country. In reality, abortion is only denied to vulnerable women unable to travel due to youth, poverty or legal status – like the woman in this tragic case.
The adoption of article 40.3.3 has not prevented one crisis pregnancy. It simply serves to compound the crisis of pregnancy for many women. The drafters and supporters of the Eighth Amendment should be ashamed.
Their powerful lobbying has obstructed any legal change for women’s rights. It has taken 21 years, a series of court cases involving vulnerable pregnant women, a European Court of Human Rights action, and four further referendum votes, even to implement the X case. The Labour Party had promised this legislation; and the Protection of Life During Pregnancy Act was finally introduced at our initiative last year.
The debate on the legislation was overshadowed by public outrage at the tragic death in October 2012 of Savita Halappanavar, which highlighted the urgent need to provide clarity on the carrying out of life-saving abortions.
The Act does this, requiring, for example, that two psychiatrists and an obstetrician must certify that a woman is at risk of suicide before her pregnancy may be terminated on this ground. It appears this procedure was followed once the young woman in this week’s case presented to the HSE.
The Act deals only with the most extreme cases, involving risk to a woman’s life. It does not provide for risk to health; for rape; or for fatal foetal abnormality. But that is not the fault of the legislation. It is due to the restrictive wording of the 1983 amendment, which has effectively tied the hands of the Oireachtas for 31 years. It is our duty now as legislators to address the real health needs of Irish women by holding a referendum to repeal the Eighth Amendment. Only then can we introduce the rational compassionate legislation that is the norm throughout the EU, in which abortion is made available on a range of grounds up to specified time limits within pregnancy.
Public support
There is clear public support for this sort of legislation. The silent majority are well ahead of politicians on this issue, despite the strident “pro-life” lobbyists.
Labour has long taken liberal stances on social issues such as contraception and divorce. In line with this tradition, we should now seek political agreement for a referendum to repeal the Eighth Amendment within the remaining term of this Government.
If that is not possible, then at the very least I believe that the Constitutional Convention should be reconvened to examine the issue and recommend necessary constitutional change.
We should then seek an all-party consensus to abide by the recommendation of the convention; and to hold a referendum early in the term of the next government. Dr Peter Boylan of the National Maternity Hospital has suggested seeking to develop a responsible political consensus of this sort, as with the holding of the Scottish independence referendum.
This would not bind any party to a particular position on the referendum, but could reduce the intensity of the debate in the meantime. As we learn the distressing facts about this recent case, one thing is clear: if we do not change the law, we will see more tragic cases. The time for cowardice and hypocrisy is over.
Ivana Bacik is Labour Senator and Reid professor of criminal law & lCriminology
