Submission from the Abortion Rights Campaign Ireland (ARC) to the Convention on the Constitution

Request that the Convention on the Constitution recommend repeal of the Eighth Amendment to the Constitution of Ireland by referendum

27 November 2013

Executive summary

The Abortion Rights Campaign Ireland (ARC) is an all-Ireland alliance of groups and individuals advocating full reproductive rights, including the right to choose abortion.

The Eighth Amendment to the Constitution of Ireland, namely Article 40.3.3°, signed into law in 1983, equates the right to life of a pregnant woman with that of an embryo or fetus, effectively from the point of implantation. It reads:

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.

ARC requests that the Convention on the Constitution recommend repeal of the Eighth Amendment for the principal reasons summarised below.

  • Following the signing into law of the Protection of Life During Pregnancy Act 2013 (PLDPA), Ireland still has, along with Malta, the most restrictive abortion laws in Europe. The PLDPA, subject as it is to the provisions of the Eighth Amendment, merely perpetuates the medical risks and loss of bodily integrity that pregnant women in Ireland have always faced, particularly since 1983. The 2013 Act codifies a medically unserviceable and false dichotomy between risk to health and risk to life. As long as Article 40.3.3° remains on the statute books, the PLDPA and any other attempts to comprehensively safeguard pregnant women’s health and lives in Ireland are rendered meaningless.

  • The Eighth Amendment is discriminatory. In denying women in Ireland access to all necessary medical care, a restriction not placed on men, Irish law clearly places less value on women’s lives and well-being than on men’s. When considered alongside the Thirteenth Amendment (enacted in 1992), which provides for the right to travel abroad for abortion services, the Eighth Amendment further discriminates against those for whom travel is problematic or impossible: young women and girls; women with certain disabilities; women in poverty or of low socio-economic status; asylum seekers; and women in controlling or abusive relationships.

  • The ostensible aim of Article 40.3.3° is to prohibit women in Ireland from procuring abortions. However, Ireland is not, has never been and never will be ‘abortion-free’. Firstly, some abortions are sanctioned on Irish soil when the woman’s life is in obvious and immediate danger. Secondly, over 150,000 women have travelled abroad to access safe, legal abortions since 1980. Thirdly, an inestimable number of women now procure abortions at home by self-administering abortifacients ordered online. These contemporary realities of Irish abortion show Article 40.3.3° to be an archaic and counterproductive law. Far from stopping abortions while safeguarding women’s lives, it ensures that abortions occur generally at a later gestational age and/or with greater risk to the woman’s health and life.

  • The flagrant disregard for women’s rights inherent in Ireland’s draconian abortion laws has spurred global concern for the situation of pregnant women in Ireland. Successive cases taken to Irish and European courts and the often preventable deaths of a number of women, particularly since 1983, have sparked censure in international media on the issue. More significantly, Ireland’s abortion laws have been subject to consistent criticism by a number of authoritative international human rights bodies, notably the UN Human Rights Committee, the UN Committee on the Elimination of Discrimination against Women and the Council of Europe Human Rights Commissioner.

  • There has been a sea change in opinion on Ireland’s abortion laws, even over the past ten years. As the majority of the Irish population now support far broader access to abortion than is currently available, the Eighth Amendment must be seen as a legal anachronism that contradicts the desires of the Irish people. Its removal from the Constitution should therefore duly be put to a referendum.

     

What is the Abortion Rights Campaign Ireland (ARC)?

ARC is an all-Ireland alliance of groups and individuals advocating full reproductive rights, including the right to access safe, legal abortion in Ireland. We believe that women’s health and women’s lives matter. Like any other personal healthcare decision, choosing whether or not to carry a pregnancy to term is a decision that should ultimately be made by the patient, in this case the pregnant woman.

Despite successive opinion polls showing an inexorable trend toward increasing societal acceptance in Ireland of abortion, many barriers to women’s full reproductive rights remain across the island of Ireland. ARC is working toward dismantling these barriers so that women can make their own decisions in the best interests of both themselves and their families.

What are the aims of ARC?

  • To educate the public and policymakers about the need for legislation to give full effect to the X and C judgments, i.e. legislation allowing for practicable access to abortion services in the case of a risk to the woman’s life, including the risk of suicide;

  • To promote broad national support for a referendum to repeal the Eighth Amendment to the Constitution of Ireland by Dáil Éireann; to campaign for the introduction of extensive abortion legislation by the Northern Ireland Assembly; and to ensure the health of pregnant women in Ireland is protected in line with international human rights norms;

  • To educate the public and policymakers about the need for access to free, safe and legal abortion in Ireland for all those who need it, regardless of citizenship status or financial capacity, in line with the provision of other basic healthcare options;

  • To mobilise support nationally among a diverse range of communities and individuals, including trade unions, student unions, human rights bodies and other groups, for the right to choose abortion;

  • To promote the provision of relevant, impartial and up-to-date information to support evidence-based policymaking and to challenge ‘pro-life’ misinformation and stigmatisation that seek to threaten reproductive rights.

ARC’s request to the Convention on the Constitution

 Under the Resolution of the Houses of the Oireachtas of July, 2012, the Convention on the Constitution is required to examine a range of issues and make other recommendations as it sees fit. On this basis, ARC are requesting that delegates to the Convention review Article 40.3.3° of the Constitution and make a further recommendation to repeal it so that women can access safe, legal abortion services within this jurisdiction.

1983 to 2003: What has changed?

The Eighth Amendment to the Constitution, approved by referendum and signed into law 30 years ago, in 1983, introduced a constitutional prohibition on abortion in Ireland. It reads:

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 Amendment equates the right to life of a pregnant woman with that of an embryo or fetus, effectively from the point of implantation. During debate surrounding drafting stages of the Amendment, its wording was criticised as sectarian, vague, draconian and unworkable by preeminent constitutional lawyers and medical professionals. However, amid intense lobbying by the Catholic Church (despite opposition from other mainstream churches) and newly formed ‘pro-life’ pressure groups, coupled with broad support across the Fianna Fáil and Fine Gael parties, the referendum passed by roughly a two-to-one majority.

The penalties for procuring an abortion were already set out under the 1861 Offences Against the Person Act, which has now been effectively replaced by the Protection of Life During Pregnancy Act 2013 (PLDPA). However, the drafting of the 2013 Act was subject to the provisions of the Eighth Amendment and the Supreme Court judgment handed down in the X Case. This has resulted in the legislative codifying of a paper-thin distinction between risk to health and risk to life in the PLDPA. The question frequently asked is when a risk to health becomes a risk to life.

The question is unanswerable, and without repeal of the Eighth Amendment, doctors are left in much the same muddy waters as before the passing of the PLDPA. As medical consensus as to when a risk to health becomes a risk to life is impossible, any legislation that erects a wall between the two will merely perpetuate the ‘significant chilling factor’ women and doctors in Ireland have always faced when serious complications in pregnancy arise.1 Without repeal of the Eighth Amendment, no legislation will ever safeguard pregnant women’s lives.

It is worth noting that Ireland is one of only three of the 47 countries of Europe to outlaw abortion in the case of a risk to the woman’s health.

We will further explore the effects of legislative restrictions on abortion later in this submission.

A note on Ireland’s maternal mortality rate

The assertion frequently repeated by ‘pro-life’ groups and individuals that Ireland has the lowest maternal mortality rate (MMR) in the world often goes unchallenged in the media and in our legislative chambers. Sometimes stated as ‘Ireland, without recourse to abortion, is the safest place in the world for a mother to have a baby’, this falsehood relies on outdated estimates and the presupposition of an unestablished link between restrictive abortion laws and low MMRs. The assertion is made with reference to Maternal Mortality in 2005, a World Health Organization (WHO) report that provided estimates on MMRs globally in that year. However, Ireland’s crude method of determining MMRs with reference to Central Statistics Office (CSO) data alone, as was the case in 2005, resulted in an under-reporting of these figures. An updated and more comprehensive method of gathering MMRs instigated by Maternal Death Enquiry Ireland, which brings the data collection process into line with international norms, shows that Ireland’s MMR is in fact average for a developed country.2 3

Further, implying that legislative restrictions on abortion result in lower MMRs is a false presupposition. Many countries where abortion is fully legalised report below-average MMRs. Austria, for example, where abortion is fully legal upon request of the woman (‘abortion on demand’), recorded only four maternal deaths for every 100,000 live births in 2005. The average for developed countries is nine.4Furthermore, as the MMR of developed countries is expressed as either a single-digit figure or a very low double-digit figure per 100,000, the incidence is so rare and subject to so many variables as to render comparison with a view to crowning a leader in maternal care based on MMRs alone meaningless.

Discrimination in the Irish Constitution

Women, of course, bear the brunt of discrimination engendered in Article 40.3.3°. The law denies women in Ireland access to all necessary healthcare, a restriction not placed on men. In doing so, Irish law clearly places less value on women’s lives and well-being than on men’s. When considered alongside the Thirteenth Amendment (enacted in 1992), which provides for the right to travel abroad for abortion services, the Eighth Amendment further discriminates against those for whom travel is problematic or impossible.

Firstly, young women and girls may feel unable to tell their parents about an unwanted or crisis pregnancy, partly due to the persistence of the stigma surrounding abortion in certain pockets of Irish society. They may not be able to travel without the consent of a parent or guardian. They may not possess a valid travel document. They may be unable to travel due to educational commitments. They are obviously more likely to face financial barriers to travel.

The Eighth Amendment, in consideration alongside the right to travel, further discriminates against women with certain disabilities, for example those of impaired mobility.

As asylum seekers cannot leave or attempt to leave the Irish State without consent of the Minister for Justice and Equality, pregnant asylum seekers have no choice but to carry unwanted or crisis pregnancies to term. Given the conditions associated with the system of direct provision in which asylum seekers reside, forcing women in these circumstances to give birth to unwanted children is a further unnecessary cruelty. It is worth noting that asylum seekers in Ireland today spend an average of three years and eight months in direct provision.

Lastly, women in controlling or abusive relationships are also disproportionately affected by the combination of amendments in Article 40.3.3° as they may face increased difficulty in leaving Ireland for abortion access.

 

An obsolete, counterproductive and dangerous law

 Abortion has always been a global phenomenon and is an incontrovertible reality for thousands of women in Ireland today.

Legislative restrictions on abortion services are not associated with lower abortion rates. Preventative, not punitive measures are the only proven way of reducing the rate of unwanted pregnancies and concomitantly the abortion rate. Two proven preventative measures are widespread access to affordable contraception, and comprehensive, unbiased sex education in schools. These form part and parcel of a pro-choice vision of reproductive rights and sexual health awareness.

Laurence Tribe, a preeminent scholar and professor of Constitutional Law at Harvard Law School, noted as far back as 1990:

[S]ex education and birth control work. In Sweden a law was enacted in 1974 that was designed to increase the use of birth control in order to reduce the rate of abortion. This law put into place an aggressive program of birth control education and provided for reductions in the cost of contraceptives. The result has been a sharp decrease in the rate of both teenage pregnancy and abortion in Sweden.5

Contrastingly, Romania in the late 1980s, after 25 years of legislative restrictions on contraceptives and abortion services enacted under Nicolae Ceauşescu’s Government, had the highest rate of maternal mortality and one of the highest abortion rates in Europe.6 7

An Irish Times front-page headline last summer revealed that women travelling from Ireland for abortion services are more likely than residents of England and Wales to undergo the procedure at later fetal gestational ages.8 Although the reasons for this consistent increased proportion of later-term abortions among patients from Ireland were not given in the article, the statistic is hardly surprising. Women in Ireland who have chosen abortion and who are compelled to travel to access services safely and legally must book travel and accommodation, arrange time off work and childcare and save the money required for these arrangements and for the procedure itself. These hurdles do not stop many women from accessing abortion services but they do delay the execution of a decision that has already been made. This shows a fundamental futility and hypocrisy at the heart of Ireland’s abortion laws and the vain ‘pro-life’ drive to stop an unstoppable phenomenon: the Irish solution to abortion, far from reducing the abortion rate, could be said to result directly in an increase in later-term abortions.

Like similar efforts in other countries with repressive abortion laws, Ireland’s abortion restrictions are indeed fruitless on a number of counts.

Firstly, some abortions are sanctioned on Irish soil when the woman’s life is in obvious and immediate danger. However, the distinction between risk to health and risk to life written into the Eighth Amendment means that doctors’ hands are sometimes tied until it is too late to act in time to save the woman’s life.

Secondly, Ireland’s punitive abortion laws, far from stopping women in Ireland having abortions, have resulted in the unsustainable situation of at least 156,076 women having travelled from Ireland for safe, legal abortions between January 1980 and December 2012. In 2012 alone 3,982 women made this journey.9 These are conservative figures based on women who provide Irish addresses when obtaining abortion services in the UK. Many more women travel to other jurisdictions, provide non-Irish addresses or provide no address at all. In any case, it is estimated that at least eleven women leave Ireland every day to access safe, legal abortion services.

Thirdly, an inestimable number of women in Ireland now procure abortions at home using abortifacient pills ordered online. In 2009 alone Irish Customs seized in excess of 1,200 abortion pills. This figure may only represent the tip of the iceberg of the true volume of such pills being imported by women in Ireland: many pills are successfully delivered to their addressees.10 The Eighth Amendment should be repealed to bring abortion out of bedrooms and into the safety of hospitals and clinics.

No woman in Ireland has ever been prosecuted for having procured an abortion outside the terms of the Eighth Amendment. This is despite the fact that some women have publicly admitted to self-administering abortifacient pills in Ireland. This fact alone reveals the reality of the unenforceability of Ireland’s abortion laws.

With the possible exception of smear tests, abortion is probably the most common gynaecological procedure a woman in Ireland is likely to have. It is estimated that between one in ten and one in fifteen women of reproductive age in Ireland have had an abortion. This plurality of realities of Irish abortion lays lie to any notion of Ireland being ‘abortion-free’. It is unconscionable that a significant fraction of half of the Irish population are forced to travel overseas for such a common medical procedure.

The Constitution must be fit for purpose as a source of law for the people of Ireland. Article 40.3.3° is an obsolete, counterproductive and dangerous law.

 

Why should women have the right to abortion?

Article 40.3.3° and the resulting legal restrictions on abortion violate the human rights of women in Ireland. Numerous authoritative human rights bodies and courts internationally have voiced concern over the legal status of abortion in Ireland and have noted that it needs to be addressed and progressed.

In the case of A, B and C v Ireland (2010) the European Court of Human Rights (ECtHR) found that the lack of clarity of Ireland’s abortion laws violated Article 8 of the European Convention on Human Rights (ECHR) guaranteeing the right to privacy. C in this case was pregnant and suffering from a rare form of cancer and could not get clear information from a doctor as to whether or not she was entitled to an abortion. The ECtHR noted that Ireland had an obligation to legislate for clarity regarding the circumstances under which abortions can be performed. This gave rise to the PLDPA.

Article 7 of the International Covenant on Civil and Political Rights (ICCPR) guarantees the right to be free from cruel, inhuman or degrading treatment.11 ARC maintains that the restrictive stance on abortion currently provided by Article 40.3.3°, in forcing women to carry unwanted pregnancies to term (particularly in, but not restricted to, cases of rape, incest and fatal fetal abnormality), equates to a violation of Article 7 of the ICCPR. The UN Human Rights Council (UNHRC) has made specific recommendations to Ireland to ensure that women are not forced to continue with pregnancies that constitute cruel, inhuman or degrading treatment conflicting with state obligations laid out in Article 7 of the ICCPR.12

In a landmark decision in November 2005 the UNHRC gave its decision in a case taken by human rights bodies on behalf of a young Peruvian woman who was forced by state officials to carry a fatally impaired pregnancy to term. The decision established that denying access to abortion violates women’s basic human rights.

The group Terminations for Medical Reasons (TFMR), together with the Center for Reproductive Rights, is now in the process of filing three separate petitions to the UNHRC. The first of these petitions alleges that under Ireland’s abortion laws women who are forced to travel abroad to terminate their often much wanted but fatally impaired pregnancies are subject to cruel and inhuman treatment.13

General Comment 14 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), namely the right to the highest attainable standard of health, clearly guarantees ‘the right to control one’s health and body, including sexual and reproductive freedom’.14The Committee on Economic, Social and Cultural Rights, along with the WHO, has stated that laws restricting access to abortion are a threat to the right to health of women. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) recommends the removal of any barriers to women’s access to reproductive health services.15 The WHO further acknowledges the widespread recommendations by international human rights bodies and courts of decriminalisation and provision of abortion services in order to protect women’s health.16

On a visit to Ireland in 2012, the UN Special Rapporteur on the Right to Health reiterated the State’s responsibility to remove any legislation that creates a barrier to the right to health, including legislation restricting abortion and reproductive health rights.17

The ICCPR, along with CEDAW, guarantees the right to be free from discrimination based on gender, socio-economic status, national origin, etc.18 CEDAW case law highlights situations where discrimination arises as a result of socio-economic status, preventing adequate access to health services. As previously noted, this is particularly relevant to the predicament of asylum seekers or economically disadvantaged women in Ireland for whom overseas travel for abortion access is problematic or impossible.19 CEDAW has specifically expressed concern over Ireland’s ‘very restrictive abortion laws’.20 The WHO acknowledges that in the majority of countries in the developed world abortion is widely available. However, in countries where severe legislative restrictions are placed on abortion it remains accessible only to the privileged and wealthy.21

Regarding the guarantee of the right to life of the unborn, it has been documented in case law of international human rights treaties that the right to life as provided by the United Nations Declaration of Human Rights, the ICCPR, the ECHR, etc., is generally understood to apply to a person who exists after birth.22

ARC recommends that the Irish State remove Article 40.3.3° from the Constitution in order to adhere to international human rights standards and legislation and to fully guarantee the human rights of women in Ireland.

 

Changing attitudes

Anti-abortion campaigners frequently misrepresent or implausibly analyse the results of successive Irish referenda on abortion to suggest that anti-abortion sentiment prevailed. The fact remains that in referenda in both 1992 and 2002 the Irish people were asked if they would see fit to remove the right to abortion when a woman’s life is at risk, including from suicide. This was rejected by the electorate on both occasions. Furthermore, in 1992, in referenda on the Thirteenth Amendment and Fourteenth Amendment, the people of Ireland also voted, respectively, for the right to information on abortion services and the right to travel overseas for abortion access.

With the signing into law of the PLDPA, as previously noted, Ireland still has, along with Malta, the most restrictive and punitive abortion laws in Europe. In fact, we have among the most restrictive abortion laws in the world. The people of Ireland, however, have repeatedly and increasingly shown that they support legislative change to make abortion more accessible to women in Ireland.

The change in Irish opinion on abortion since the signing into law of the Eighth Amendment in 1983, indeed since the X Case judgment of 1992, is remarkable. According to this year’s Ipsos MRBI poll in the Irish Times, the majority of people in Ireland now support a woman’s right to choose abortion at least in the cases of risk to life (89%), risk to health (78%), fatal fetal abnormality (83%) and rape and abuse (81%).23

With the possible exception of cases of fatal fetal abnormality, legislation giving effect to current Irish opinion on abortion is impossible without repeal of the Eighth Amendment. Article 40.3.3° must therefore be seen as a legal anachronism that contradicts the overwhelming majority views of the Irish people. Its removal from the Constitution should duly be put to a referendum to rectify this anomaly.

Conclusion

ARC urges once again that the Convention on the Constitution recommend repeal of the Eighth Amendment as it is an obsolete, counterproductive, discriminatory and dangerous article of law that violates best medical practice, international human rights norms and the desires of the people of Ireland.

Note

For the sake of brevity and legibility, in this submission ARC mainly uses the word ‘woman’ to denote those who can become pregnant and may require abortions. ARC recognises that women, girls and trans men can all become pregnant.

 

Submissions to the Convention on the Constitution from other Pro-Choice organizations

 

Abortion Rights Campaign Ireland (ARC)

PO Box 12365
Dublin 7

info@abortionrights.ie

1 A, B and C v Ireland (2010) ECHR 2032.

2 WHO, UNICEF, UNFPA and the World Bank, Maternal Mortality in 2005 (2007), available at <http://www.who.int/whosis/mme_2005.pdf> [accessed 26 November 2013]

3 Niall Hunter, ‘Review shows maternal deaths under-reported’, Irishhealth.com, 23 November 2012 <http://www.irishhealth.com/article.html?id=21361> [accessed 26 November 2013]

4 Maternal Mortality in 2005.

5 Abortion: The Clash of Absolutes (New York: W. W. Norton, 1990), p. 212.

6 Michael Leidig, ‘Romania still faces high abortion rate 16 years after fall of Ceausescu’, BMJ, 331:1043 (2005), available at <http://www.bmj.com/content/331/7524/1043.2> [accessed 26 November 2013]

7 Charlotte Hord, Henry P. David, France Donnay and Merrill Wolf, ‘Reproductive health in Romania: reversing the Ceausescu legacy’,Studies in Family Planning, 22:4 (1991), pp. 23140.

8 Pamela Duncan, ‘Irish more likely to have later abortions, UK data reveals’, Irish Times, 6 August 2013, available at <http://www.irishtimes.com/news/social-affairs/irish-more-likely-to-have-0later-abortions-uk-data-reveals-1.1485583> [accessed 26 November 2013]

9 Irish Family Planning Association, ‘Statistics’ <http://www.ifpa.ie/Hot-Topics/Abortion/Statistics> [accessed 26 November 2013]

10 Eilish O’Regan, ‘Women warned of dangers from illegal abortion pills sold online’, Irish Independent, 10 September 2012, available at <http://www.independent.ie/lifestyle/health/women-warned-of-dangers-from-illegal-abortion-pills-sold-online-26896287.html> [accessed 26 November 2013]

11 The International Covenant on Civil and Political Rights (ICCPR), entered into force March 23 1976, ratified by Ireland December 8 1989.

12 UN Human Rights Committee, ‘Concluding Comments: Ireland’, A/55/40, July 24 2000.

13 Kitty Holland, ‘Three Irish women forced to travel to UK to terminate pregnancies take case to UN’, Irish Times, 11 November 2013, available at <http://www.irishtimes.com/news/politics/three-irish-women-forced-to-travel-to-uk-to-terminate-pregnancies-take-case-to-un-1.1590231[accessed 26 November 2013]

14 CESCR, General Comment 14, the right to the highest attainable standard of health, UN Doc. E/C.12/2000/4 (2000); International Covenant on Economic, Social and Cultural Rights (ICESCR), entered into force January 3 1976, ratified by Ireland December 8 1989.

15 CEDAW, General Recommendation 24: Article 12 of the Convention (Women and Health), A/54/38/rev. 1, ch. 1, 1999.

16 World Health Organization, Department of Reproductive Health and Research, Safe Abortion: Technical and Policy Guidance for Health Systems2nd edn (2012), available at <apps.who.int/iris/bitstream/10665/70914/1/9789241548434_eng.pdf[accessed 26 November 2013]

17 Irish Family Planning Association, IFPA Welcomes Call by UN Special Rapporteur on the Right to Health for the Decriminalisation of Abortion <http://www.ifpa.ie/node/514> [accessed 26 November 2013]

18 International Covenant on Civil and Political Rights (ICCPR)entered into force March 23 1976, ratified by Ireland December 8 1989, Article 26; Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 18 December 1979.

19 Irish Human Rights Commission, Observations on the Protection of Life During Pregnancy Bill 2013’, available at <http://www.ihrc.ie/publications/list/ihrc-observations-protection-of-life-during-pregna/[accessed 26 November 2013] 21.

20 CEDAW, July 2005, CEDAW/C/IRL/4­5.

21 Safe Abortion: Technical and Policy Guidance for Health Systems.

22 Center for Reproductive Rights, ‘Whose Right to Life? Women’s Rights and Prenatal Protections under Human Rights and Comparative Law’, available at <http://www.reproductiverights.org/en/document/whose-right-to-life-womens-rights-and-prenatal-protections-under-human-rights-and-comparati[accessed 26 November 2013]

23 Stephen Collins, ‘Poll suggests strong support for proposed legislation’, Irish Times, 11 February 2013, available at <http://www.irishtimes.com/news/poll-suggests-strong-support-for-proposed-legislation-1.1426365> [accessed 26 November 2013]

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