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 prohibited by both the constitutional protection of the right to life of the unborn and by legislation. Information on abortion services outside the state, as well as travelling abroad for an abortion, is now constitutionally protected and provided for by legislation.

As of 2010, the abortion rate was 4.5 abortions per 1000 women aged 15–44 years.^[1]

Current law

Constitutional provisions

Article 40.3.3° of the Constitution of Ireland contains a protection of the right to life of the unborn, as well as protecting the right to travel and the right to obtain information about services legally available in other jurisdictions. The first paragraph was inserted in 1983 by the Eighth Amendment; the second and third paragraphs were inserted in 1992 by the Thirteenth Amendment and the Fourteenth Amendment respectively.

Article 40.3.3°

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 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.

Legislation

The law which currently governs abortion in Ireland is the Protection of Life During Pregnancy Act 2013. Sections 7 and 8 provide for legal termination of pregnancies in cases of a risk of loss of life from physical illness, whereas section 9 provides for legal termination of pregnancies in cases of a risk of loss of life from suicide. Sections 58 and 59 of the Offences Against the Person Act 1861 were repealed, and effectively superseded by the offence defined in section 22:

22. (1) It shall be an offence to intentionally destroy unborn human life.

(2) A person who is guilty of an offence under this section shall be liable on indictment to a fine or imprisonment for a term not exceeding 14 years, or both.

(3) A prosecution for an offence under this section may be brought only by or with the consent of the Director of Public Prosecutions.

The legislation was proposed by Minister for Health James Reilly on behalf of the Fine Gael–Labour Party government. It passed the Dáil by 127 votes to 31.^[2] Fine Gael, the Labour Party and Sinn Féin had a party whip in favour of the legislation, and among those who opposed it were Fine Gael TDs Lucinda Creighton, Terence Flanagan, Peter Mathews, Billy Timmins, and Brian Walsh, and Sinn Féin TD Peadar Tóibín. Brian Walsh and Peadar Tóibín later returned to the Fine Gael and Sinn Féin parliamentary parties respectively.

President Michael D. Higgins convened the Council of State to consider the constitutionality of the bill and a possible reference under Article 26 of the Constitution to the Supreme Court. The President decided against such a reference, and signed the legislation into law on 30 July 2013.

Background

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Fears were expressed by politicians in 1929 of an increase in criminal abortions and infanticide following the passing of the Criminal Law Amendment Act which prohibited all appliances and substances for contraception; no exceptions whatsoever were made.^[3] Over 100 Irish women were dying annually from unsafe backstreet abortions in the 1930s.^[4]

The English case of R v. Bourne (1938), which allowed the distress of a pregnant girl as a defence in a prosecution against a doctor for the termination of a pregnancy, led to an increase in abortion in Britain, and thereafter, of Irish women travelling to obtain abortions. There were no prosecutions in Ireland 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 and 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.^[5] 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"^[6] 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.^[7][8][9] The Garda Commissioner's first annual report on crime published in 1947 made reference to the number of abortions that were performed illegally.^[10] In the 1950s novels, autobiographies and works of non fiction (including medical texts) that promoted or even described abortion were banned.^[11] There were extremely few prosecutions for performing illegal abortion between 1952 and 1963.^[12] but one of Ireland's best-known abortionists, Mamie Cadden, was sentenced to death by hanging in 1957 – this was later commuted to life imprisonment – when one of her patients died.

The Abortion Act 1967 in Great Britain made access to the treatment easier for Irish women and the instance of infanticide, which was prevalent, became to decline sharply. In 1974, Noël Browne became the first member of the Oireachtas to propose the provision of therapeutic abortion services during a contribution to a Seanad debate.^[13] In 1981, future President of Ireland, Mary McAleese, chaired a meeting at Liberty Hall that advocated a woman's right to choose. She later claimed that she misunderstood the nature of the meeting.^[14] McAleese had previously said that "I would see the failure to provide abortion as a human rights issue", but also that she did not feel "that the way to cope with it is through introducing abortion legislation" into Ireland.^[15] A number of controversies have arisen following deaths of pregnant women who were prevented from receiving medical care because of their pregnancy, such as Sheila Hodgers in 1983.^[16]

Old legislation

Under sections 58 and 59 of the Offences against the Person Act 1861, as amended by the Statute Law Revision Act 1892 and Statute Law Revision (No. 2) Act 1893, procuring a miscarriage was a criminal offence subject to penal servitude for life.

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 felony, and being convicted thereof shall be liable to be kept in penal servitude 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 a misdemeanor, and being convicted thereof shall be liable to be kept in penal servitude.

These provisions enacted by the Parliament of the United Kingdom remained in force in Irish law until they were repealed by the Protection of Life During Pregnancy Act 2013.

Abortion Information

In the 1980s, the Society for the Protection of Unborn Children challenged distribution of information relating to abortion services in Britain under the provisions of Article 40.3.3°. In proceedings which they initiated, which were later converted into the name of the Attorney General, AG (SPUC) v Open Door Counselling Ltd. and Dublin Wellwoman Centre Ltd. (1988), the High Court granted an injunction restraining two counseling agencies from assisting women to travel abroad to obtain abortions or informing them of the methods of communications with such clinics. SPUC v Grogan and SPUC v Coogan targeted students' unions, seeking to prohibit them from distributing information on abortion available in the UK.

In response to the success of this litigation, and prompted by the controversy on the X Case, a referendum was held in November 1992 on the Fourteenth Amendment, which passed.

Information of the availability of abortion outside the jurisdiction is governed by the Regulation of Information (Services Outside the State For Termination of Pregnancies) Act, 1995. This was referred to the Supreme Court by President Mary Robinson and found to be constitutional.

Major incidents and cases

Death of Sheila Hodgers

Sheila Hodgers was an Irish housewife from Dundalk, County Louth, who, in 1983, died of multiple cancers two days after giving birth to her third child (who immediately died at birth^[17]). It is alleged that she was denied treatments for her cancer while pregnant because the Catholic ethos of the hospital did not wish to harm the foetus.

X Case

In 1992, in Attorney General v. X (the X Case), the Attorney General sought an injunction to prevent a thirteen-year-old girl who had been the victim of rape from obtaining an abortion in England, which was granted in the High Court by Justice Declan Costello. On appeal to the Supreme Court, this decision was reversed, on the grounds that the girl was suicidal, and that therefore, it was permissible to intervene to save her life.

In November 1992, the Twelfth Amendment was proposed, which would have removed a risk of self-destruction as grounds for an abortion, but was defeated in a referendum. A similar proposal in the Twenty-fifth Amendment in 2002 was also defeated.

The Thirteenth Amendment was passed in November 1992 in response to the injunction sought by the Attorney General, ensuring that the protection of the unborn in the constitution could not be used to prohibit travel from the state to another state for an abortion.

C Case

In August 1997 a 13-year-old girl was raped, and became pregnant. She was suicidal due to the pregnancy, and went to the UK for an abortion. Since she was currently a ward of the state (Eastern Health Board), there was a court case about whether she could travel to the UK.^[18][19]

The woman at the centre of the case has occasionally spoken about her experiences, but not revealed her identity. She found the abortion traumatic, and didn't understand what was going on at the time. She didn't know that she would be getting an abortion, and thought that the hospital were going to deliver her baby.[11][12][13]^[20]

D v Ireland

In 2002, before the Twenty-fifth Amendment Referendum, a woman pregnant with a foetus with fatal foetal abnormalities travelled to the UK for a termination. Her letter in The Irish Times was credited with playing a part in the defeat of the Twenty-fifth Amendment referendum.^[21][22] She later took a case against Ireland in the European Court of Human Rights, D v Ireland, which was ruled inadmissible. The State argued that the Constitution of Ireland might allow termination in cases of fata foetal abnormalities.^[23] After the death of Savita Halappanavar, she gave up anonymity and spoke out.^[24][25]

Miss D

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.^[26]

ECHR: A, B and C v Ireland

In 2005, two Irish women and a Lithuanian woman^[27] 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".^[27] 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.^[28]

A government-appointed Expert Group on Abortion released its findings on 13 November 2012, the day before news of the death of Savita Halappanavar broke, saying that Ireland was obliged to implement the court's decision and recommending legislative and statutory reform.^{[29][30][31][32]} This led to the enactment of the Protection of Life During Pregnancy Act the following year.

Savita Halappanavar

The death of Savita Halappanavar led to protests in 2012 calling for changes to Ireland's abortion laws and a highly public investigation by the Health Service Executive. After a miscarriage had been diagnosed, she was denied an abortion because the foetus's heart was still beating.^[33][34][35] The HSE enquiry found that her death was a result of inadequate assessment and monitoring and a failure to adhere to established clinical guidelines, and made several recommendations, including legislative & constitutional change.^[36]

Ms Y

In 2014, Ms Y, a young, suicidal woman was denied an abortion under the act. She went on hunger strike. The baby was eventually delivered by Caesarean section.^[37]

PP v. HSE

In December 2014, a woman who was declared brain dead was artificially kept alive against her family's wishes as the foetus she was carrying still had a heartbeat. She had been hospitalised initially, prior to a fall, for a cyst in her brain. In PP v. HSE, a three-judge panel of the High Court ruled on 26 December 2014, in a 29-page decision, that all life support should end. The court accepted the experts testimony that the foetus 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 foetus 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 foetus had a much better chance at being born alive, if it was much closer to the point of viability.

The Roman 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 Department of Health was to examine the ruling; both sides indicated they would accept the ruling and would not appeal to the Supreme Court, which had been on standby. Life support machines were disconnected on Friday, 26 December 2014.^[38]

UNHRC: Mellet v Ireland

In 2016 the United Nations Human Rights Committee found that Ireland's abortion law violated the United Nations International Covenant on Civil and Political Rights and called for the law's reform.^[39]

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.^[40] In 2001, an estimated 7,000 women travelled abroad to obtain an abortion.^[41] Statistics showed that 4,149 Irish women had abortions in Britain in 2011.^[42]

Public opinion

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.^[43]
• 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.^[44]
• A September 2005 Irish Examiner/Lansdowne poll found that 36% believe abortion should be legalised while 47% do not.^[45]
• 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.^[46]
• 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.^[47]
• 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.^[48]
• 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".^[49][50]
• 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.^[51]
• 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.^[52]
• 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.^[53][54]
• 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.^[55]
• 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".^[56]
• A January 2016 Newstalk/Red C poll found that 78% of voters were in favour of allowing abortion in cases when the pregnancy arose as the result of rape or incest, 76% when there is a fatal foetal abnormality, 61% when there is a significant foetal disability or non-fatal foetal abnormality, 59% when the pregnant woman has suicidal feelings as a result of the pregnancy and 41% in any circumstances felt necessary by the pregnant woman. However, when asked if the Eighth Amendment should be removed from the constitution, only 48% said it should and 41% were opposed to removing it^[57]
• An October 2016 Irish Times/Ipsos MRBI poll found that, regarding the Eighth Amendment, 18% said it should not be repealed; 55% said it should be repealed to allow for limited access to abortion in the cases of rape and fatal foetal abnormality; 19% said it should be repealed to allow for abortion in all cases requested, and 8% had no opinion. Support for a more liberal regime was strongest in Dublin and among younger people.^[58]

External links

• Constitution of Ireland
• Eighth Amendment of the Constitution Act, 1983
• Thirteenth Amendment of the Constitution Act, 1992
• Fourteenth Amendment of the Constitution Act, 1992
• Regulation of Information (Services Outside the State For Termination of Pregnancies) Act, 1995
• Protection of Life During Pregnancy Act 2013

References

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3. Kennedy, Cottage to Creche, pp 159-161
4. Jones, Marie Stopes in Ireland, pp 255–277
5. Mc Avoy, Before Cadden, pp. 147-150
6. MPRH "Illegitimate", pp 77-78
7. Cliona Rattigan, "Crimes of Passion of the Worst Character", Abortion Cases and Gender in Ireland, 1925-1950 in Maryann Valiulis (ed)
8. Gender and Power in Irish History (Dublin 2008), p. 136.
9. Hug, The Politics of Sexual Morality, p. 161
10. NAI DT, 1471A, Report of Commissioner of Garda Síochána on Crime 1947, page 6
11. The Operation of the Censorship of Publications Board: The note books of CJ O Reilly, 1951-1955, pp 223-369
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13. Horgan, Noël Browne: Passionate Outside, p. 254
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58. Stephen Collins (7 October 2016). "'Irish Times' poll: Majority want repeal of Eighth Amendment". Irish Times.