Logic-free abortion laws

A Carmelite nun casts her vote on March 6, 2002 on the controversial referendum on Abortion.

A Carmelite nun casts her vote on March 6, 2002 on the controversial referendum on Abortion. Photo: Getty

Technically speaking, abortion has been legal in Ireland for twenty years this month. Technically speaking. In reality, it’s still an extremely rare procedure tangled in moral debates and legal contradictions – but Europe’s strictest, and probably most fiercely debated, abortion laws may finally be about to relax, if a new bill introduced to the Irish parliament passes into law.

Under the new legislation, abortion would become legal where there is a “real and substantial risk to the life” of a pregnant woman, in effect putting the value of that woman’s life on a par with that of the foetus she’s carrying.

By the standards of Australia – where abortion is generally available to anyone who wants it – it’s not a particularly radical proposal. But in Ireland - where almost 90 per cent of the country identifies itself as Catholic - permitting abortion for the tiny sliver of the population whose lives would be at risk without it is an issue which has been lurking in politics’ shadows, grimly waiting to be addressed, for decades.

Abortion was banned in all circumstances until 1992’s “X case”, when Ireland’s Supreme Court ruled that a 14 year old who became pregnant, and then suicidal, after a neighbour raped her should be allowed a termination.

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Ireland then headed into a state of almost impressive illogic. The right to abortion when life is at risk was added to the country’s constitution, but no law was ever created to back that right up.

 

As a result, deciding whether a woman is eligible for an abortion is left entirely to her doctor’s individual judgement on how much danger her life is in. That doctor also knows that he or she risks a criminal conviction for making the wrong call and allowing an abortion which is “unconstitutional”. On top of that, whether it’s conscious or not, there is a real danger that the doctor’s own views on a highly controversial procedure will play a part in his or her judgement.

 

However, in 2010 the European Court of Human Rights shed light on these inconsistencies, ruling on the case of a woman who suffered from a rare form of cancer and could not find an Irish doctor who would tell her whether her life was at risk if she continued her pregnancy. The ruling – that the Irish state was in violation of its own constitution – has led the government to set up a group of legal and medical experts to advise on its options.

 

Addressing the contradictions is long overdue. Ireland’s constitution has effectively acknowledged that women are having abortions since 1992, when – following a referendum - women gained the right to travel abroad for abortions, and medical practitioners gained the right to advise them to do so. As a result, an estimated 4000 Irish women a year are travelling to the UK for the procedure. Quite apart from the fact that heading overseas for gynaecological surgery isn’t most people’s idea of fun, relying on the UK for terminations puts them out of reach for anyone too poor to afford to travel there and makes life much more difficult – at what is likely to be a pretty emotionally fraught time anyway - for those who are too young or too unwell, for example, to travel easily.

 

Is this really what Irish people want? Depends who you ask, of course. According to a poll commissioned by a “pro-life” organisation in 2011, 61 per cent of respondents wanted constitutional protection for the unborn. A poll commissioned by a pro-abortion group a year earlier found 75 per cent of Irish wanted abortion to be made more accessible.

 

Twenty years on from the X case, another referendum would bring more clarity to the issue. Ireland has been becoming increasingly secular for a long time, long before Irish premier Enda Kenny’s announcement that “the revelations of the Cloyne Report [into sex abuse in the Catholic church] have brought the government, Irish Catholics and the Vatican to an unprecedented juncture.” The church may teach that “neither the unborn child nor the mother may be deliberately killed,” as the Sean Brady, the primate of all Ireland, wrote in response to the proposed new legislation, but the church’s view hasn’t been the be-all and end-all for years. The Pope has never been the world’s biggest fan of contraception, but that doesn’t mean Irish people have to go to the UK to buy it. Similarly, Catholicism hasn’t been particularly hot on homosexuality, but civil partnerships have been legal for more than a year now. 

 

Referendum or not, the Irish house of parliament will have its chance to vote on the new bill and bring a little logic to the country’s stance on abortion on April 19. In practical terms, passing the bill will only bring the law into line with a decades-old court judgement. But it would open the door to a broader abortion debate, a conversation which is badly overdue.