Laws of Life and the Unborn

After more abortion controversies in 2014, Motley’s Eoin McSweeney examines the laws surrounding the moral debate.

The abortion debate in Ireland has been a source of discussion for decades. Across dinner tables, at parties and in lecture halls, the people of Ireland discuss the moral implications of legalising abortion. We wonder at what stage the foetus becomes human, whether fertilisation is enough to constitute the creation of new life and when does it become necessary to prioritise the life of the mother. No other topic has divided opinion like this and so moral views are distributed in a haphazard manner.

These moral discussions usually revolve around the right to the life of the unborn and the rights of the mother. However, at times, people forget the actual laws surrounding abortion in Ireland, in particular, how much protection is afforded to the mother, and so practical solutions aren’t forthcoming. The legal aspect of abortion needs to be explained and understood before any meaningful change can be suggested. The most controversial aspect of abortion has been the threat of suicide on the part of the mother and how this may warrant an abortion.

To give a brief history of Ireland’s abortion laws, we must first look at Article 40.3.3 of the Constitution. “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 section of the Constitution has been a source of great controversy. This is due mainly to its absolute protection of the right to life of the unborn, and the ambiguity of the short text. In the past, it has been left to the courts to decide the degree of protection afforded to the child and the mother.

As an example, we can look at the most famous abortion case in Ireland, the X Case. It involved an unnamed 14 year-old girl who had been raped by a neighbour and became pregnant. The girl told her mother about her suicidal thoughts in relation to the unwanted pregnancy and so travel to Britain was arranged so that an abortion could be performed. However, before they travelled, they asked the Gardaí whether a DNA sample from the foetus would be needed as evidence. Upon hearing about the plans for the abortion, the Attorney General at the time, Harry Whelehan, sought an injunction to protect the constitution and namely Article 40.3.3.

The case raised a number of issues. The topic of allowing abortion to legally happen in Ireland was not up for debate, however it was recognised that the life of the mother had to be protected. It was decided that in cases where there was a real and substantive risk to the life of the mother, an abortion could be a necessary option. The reasoning behind this, was given by Justice Hugh O’Flaherty of the Supreme Court at the time: “The stark situation is, if someone who is pregnant commits suicide, you lose the mother and the child.”

A result of the case was three referenda. The twelfth amendment proposed that even in cases where the mother was suicidal, the prohibition on abortion would stand. The thirteenth amendment proposed that the mother could travel abroad for an abortion and the fourteenth amendment specified that the prohibition of abortion would not limit the right to distribute information about abortion services in other countries. The latter amendment was also a result of SPUC v Grogan, another landmark Irish case, which dealt with the distribution of information regarding abortions in other countries.

The former amendment was not passed, however the latter two were, 40.3.3 now also reading: “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.”

Of course this granted a number of rights to the mother that were previously non-existent. However, unfortunately, the law regarding abortion in Ireland was and still is unclear. This was quite obvious from A, B and C v Ireland. Three women, who had already travelled to Britain to obtain an abortion, brought a suit in the European Court of Human Rights. They asserted that restrictive and unclear law violated a number of provisions of the European Convention on Human Rights.

In an incredibly interesting judgment, it was found that by being forced to travel, the women’s rights were not being violated, as Ireland was “legitimately trying to protect public morals.” However, it was found that Ireland failed to provide clear and comprehensive guidelines as to when a woman was entitled to an abortion in Ireland. This is where major problems have arisen. While it is clear from the law and the Constitution, being forced to travel abroad for an unnecessary abortion is not a violation of any basic human right, it remains to be seen in what circumstances a woman may obtain a necessary abortion when her life is at risk.

This is where there is a problem with the abortion laws in Ireland. We can discuss the total legalisation of abortion all we want as a nation, ultimately we won’t see a change in this regard anytime soon (this is despite the fact that according to a report from the Department of Health in Britain, 4,484 women travelled from the island of Ireland to Wales and England to obtain abortions in 2013). However, it is quite obvious that the law at the moment is not sufficient due to the fact that the mother’s life is not being protected. Changes can be made with regards to this and these alterations to the law could save lives.

Recent abortion controversies in Ireland have made headlines abroad and brought the topic into the public spotlight again. The death of Savita Halappanavar was a great tragedy and highlighted flaws in the Irish legal system. This incident involved a woman in Galway University Hospital being denied an abortion even though there was an evidently strong risk of death due to her contracting septicaemia after a miscarriage. After this debacle, the Protection of Life during Pregnancy Act was passed, more than twenty years after the X Case.

The Act’s primary aim is to define the circumstances where an abortion may occur in Ireland. The controversial aspect of this legislation has been the allowance for abortion in cases where the mother is suicidal. This has been condemned by academics on both sides of the debate and has been described as both too restrictive and not restrictive enough.
For example, UCC lecturer Dr Maria Cahill has written several articles on the topic and has taken a stance of Constitutional Protection. The Government seems to have legislated these changes because of pressure from the European Court of Human Rights following the A, B and C case. As Dr Cahill points out, does it say in the Constitution that a suicide-based exemption is entirely legal? Most certainly not. In an article in the Sunday Business Post, she points out that; “The legal reality is that there is no obligation on the Government deriving from the Constitution or from the European Court of Human Rights or from the Supreme Court to propose legislation for a suicide-based exemption from the right to life.”

On the other hand, there is the argument that this bill does very little to change the situation for mothers. To not give a women the choice to have an abortion when her life is at risk seems to support a society of unequal citizenship. As another UCC lecturer Siobhán Mullally puts it in an article on human rights: “In Ireland we will continue to deny access to a safe and legal abortion even in cases of rape, incest, and fetal inviability.” This situation has been highlighted by another abortion controversy in 2014. A young suicidal women was denied an abortion, even under the new Act. She went on a hunger strike and eventually the baby was delivered via Caesarean section.
Even more shockingly, in December, a pregnant woman was declared brain dead, but was kept artificially alive in a hope that the foetus could come to term. Eventually, the High Court ruled that all life support should end as the foetus had no chance of survival. Even the Archbishop of Dublin, Diarmuid Martin, had stated that he would not object to this; as there wasn’t a way that either the mother or the child could be saved. However, in the future, what if the child has a better chance of survival? Questions will remain.

The law in Ireland has clearly failed a number of women, but it is what we must work with. In the discussion on abortion, people get caught up in the moral debate and seem to forget that there are laws and a Constitution that cannot be ignored. While it can be argued that the law we follow could be outdated, the Constitution belongs to the people and there has to be a steadfast majority to make a change and at the moment the country is split. To fix the problems that are indicative of the Irish legal system, we must look at them legally and objectively, without moral quandaries.

As Dr Cahill points out in a separate article; Ireland radically protects life. We don’t have a death penalty, we have a policy of military neutrality and we protect the life of the unborn. We may embrace this as something to be proud of, but the life of the mother must also be cherished.