Cross posting this article written by Alison Spillane from TheJournal.ie.
Twenty years on from the landmark Supreme Court ruling in the X case it is both astonishing and disheartening that so little progress has been made.
Over the past two decades, successive governments have failed to legislate for the Supreme Court judgment which established the right of women to access abortion when their lives are at risk, including the risk of suicide. In so doing, they have withheld a constitutional right from women in Ireland.
In the interim, we have seen a working group, a Cabinet committee, an Oireachtas committee and two referenda (1992 and 2002) in which the Irish people reaffirmed the Supreme Court ruling by refusing to remove suicide as legitimate grounds for abortion. More recently, the European Court of Human Rights (ECHR) ruled in ABC v Ireland that the rights of Applicant C had been violated under Article 8 of the European Convention on Human Rights due to the State’s failure to legislate for the existing constitutional right to abortion. The Court noted there was a “striking discordance” between the theoretical right to a lawful abortion in Ireland on grounds of a relevant risk to a woman’s life and the reality of its practical implementation.
In January this year, after much can-kicking, Minister for Health James Reilly appointed a 14-member expert group to consider the ECHR judgment of December 2010. The expert group is charged with examining the options available to the government on how to implement this ruling.
In one sense, the establishment of the expert group is a step in the right direction but it is also a delaying tactic allowing government to push this issue to the margins for as long as possible. The reality is that an expert group is not necessary – the legislation required for X is in fact relatively straightforward (although we must be careful the law is not too rigid); the element requiring the most work is the medical guidelines needed to accompany it which should provide long overdue clarity for medical professionals who have been forced to censor themselves due to the severe penalties they could receive under archaic legislation.
Do we really need to legislate for X?
Often when the X Case comes up in the public domain the argument thrown up by the pro-life lobby is that, as things stand, doctors will always act to save the life of a woman even if this means unintentionally terminating her pregnancy, thus there is no need for legislation in this regard.
In reality, things are far more complex than that. As demonstrated by the ABC case where Applicant C – a woman in remission from cancer – found she could not access clear medical advice about the threat to her life if she continued with the pregnancy, or the damage that may have been done to the foetus as a results of tests she had undergone as part of her cancer treatment. Doctors stayed silent, left in a very unclear situation themselves, and were unwilling to advise this woman because of the legal implications surrounding abortion provision. Due to the negative climate around abortion in Ireland doctors are fearful and often unsure whether they can assist a woman, for example, in the provision of post-abortion care – abortion remains a criminal offence under 1861 legislation, carrying a maximum penalty of life imprisonment.
As a result of the failure to legislate for X, Sections 58 and 59 of the Offences Against the Person Act 1861 are still in force meaning that women and medical professionals run a risk of serious criminal conviction. As the European Court of Human Rights observed, “The criminal provisions of the 1861 Act would constitute a significant chilling factor for both women and doctors in the medical consultation process, regardless of whether or not prosecutions have in fact been pursued under that Act”.
Why has the State not acted?
As part of its defence in the ABC case, the Irish government argued that restrictions on abortion in Ireland were based on “profound moral values deeply embedded in the fabric of society”. Recent opinion polls, however, beg to differ. The inaugural Irish Times/Behaviour & Attitudes Social Poll published in October 2007 found that 69% of women believe the government should legislate for abortion where the woman’s life is at risk. In 2010 a Marie Stopes/YouGov poll found that 87% of those questioned supported abortion where a pregnancy seriously endangers a woman’s life. It is clear that Irish attitudes to abortion have liberalised significantly over the past two decades.
Successive governments have displayed extreme political cowardice and conservatism in their refusal to introduce the relevant legislation. For the most part elected representatives have been afraid to touch the topic and in doing so they have greatly underestimated the electorate, as demonstrated by the opinion polls above. To be fair to backbench and opposition TDs, the pro-life lobby has traditionally been more visible and vocal on this issue (due in part to the rather staggering amount of resources it seems to have at its disposal) and elected representatives need to know that their constituents support them before they take a stand.
Unfortunately, this issue has for too long been monopolised by an extremely vocal and well-resourced minority who cry “Murder!” at the slightest mention of women’s reproductive rights. This approach stifles public debate and hinders reasonable discussion about a very complex topic. In advocating the right of women to access abortion when their lives are at risk, including the threat of suicide, I do not expect everyone to agree with me. But it is unjust for those who disagree to force that opinion on the rest of us, thereby preventing women from accessing life-saving treatment and doctors from providing proper and necessary care to patients. For twenty years this has been the status quo in Ireland, and the time to act is long overdue.
Alison Spillane is a political researcher and a co-ordinator of the Irish Feminist Network.
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