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GuestPost - Thu Apr 19, 2018 14:13 This post is contributed by Dr Cordelia Freeman of the University of Nottingham. It is based on a full-length journal article available at: Freeman, C. (2017). The crime of choice: abortion border crossings from Chile to Peru. Gender, Place & Culture, 24(6), 851-868. The Chile-Peru abortion trail is almost unknown but provides a useful way to reflect […] This post is contributed by Dr Cordelia Freeman of the University of Nottingham. It is based on a full-length journal article available at: Freeman, C. (2017). The crime of choice: abortion border crossings from Chile to Peru. Gender, Place & Culture, 24(6), 851-868. The Chile-Peru abortion trail is almost unknown but provides a useful way to reflect on the experiences of Irish women who travel to Great Britain in search of abortion healthcare. Drawing on research on the Chile-Peru case, this post reflects on some similarities and differences with the Ireland-Great Britain example. Chile has had some of the most restrictive anti-abortion laws in the world. Until last yearabortion was illegal in every single case and now it will be permitted in three very strict cases; if the pregnancy was a result of rape, when the woman?s life is at risk, and when a foetus is not viable. The criminalisation of abortion has not prevented women from procuring abortions but instead has pushed the practice further underground with fatal results. The primary cause of maternal mortality in Chile is complications arising from clandestine abortions and mortality due to abortion is between 10 and 100 times higher in Latin America than in most European countries. The National Health Service estimates that in 2014 there were almost 34,000 admissions after abortions which had gone wrong. Women are quite literally dying due to state legislation. This risk is not shared equally among all Chilean women.Wealthier women can pay for the safety and discretion of a private doctor who they can trust won?t go to the police. A safe abortion in Chile can cost $500-1000, which is beyond the means of many Chileans. Therefore, only women with money can afford a safe private procedure within the country or can travel to another country where it is not illegal. Chile?s geography makes it very isolated and means leaving the country is very costly. However, one part of Chile is closely connected to another jurisdiction: the northernmost city of Arica. In this region of Chile women have the opportunity of crossing the border to Peru easily and quickly where abortion options are more cheaper and more accessible. While abortion legislation in Peru is less draconian than in Chile, it does remain illegalin most cases.A woman that consents to an abortion can be sentenced to up to two years in prison while anyone who performs an illegal abortion can be sentenced to 1 to 6 years in prison. However, despite this, abortions are more easily accessible, cheaper, and punished less often than in Chile.The result of this has been an ?abortion trail? whereby women travel from Northern Chile to Tacna, a city in Southern Peru in search of abortion. The cross-border ?abortion trail? between Chile and Peru resembles the travel by Irish women to Great Britain, where a long-establish ?abortion corridor? sees 9-10 Irish women travel every day. Chile and the Republic of Ireland are both Catholic countries where the abortion debate has become politicised instead of being seen as a personal, healthcare issue. Strict, prohibitive legislation within national borders has meant that women have been forced to travel elsewhere in order to find a safe(r), more accessible, or legal abortion. This means that in both examples, ?trails? have emerged due to the frequency of travel and kinship networks whereby routes and clinics are recommended between friends and family as well as organisations. While there are these similarities between the Irish and Chilean cases there are two significant differences. The first is that when Irish women travel to Britain for abortion healthcare they are able to visit licensed healthcare professionals. Information about how and where to access safe clinics is available online to Irish women, though laws restrict what Irish doctors from providing detailed information on how/ where to access abortion in England. By contrast, when Chilean women travel to Peru for abortion healthcare they are committing an illegal act and visiting clandestine clinics of unknown quality. Given the underground nature of abortion provision in Peru, the abortion provider may not even have received any training and given the lack of regulation there is no avenue for finding out which clinics will be safe, hygienic, and run by a medical practitioner. Given this there is a significant amount of fear of something going wrong. One interviewee reported: ?I know it?s a risk that the standards of hygiene there aren?t the best, or so I have been told, that they?re scary places.? Another interviewee who had been herself for an abortion recalled: ?Obviously I was scared for my life, oh it was awful, yeah I was terrified, it?s like these are things that aren?t legal you know, anything illegal is going to scare you because it?s not safe, you can?t go to someone if it goes wrong, you don?t have that right, there is no right to an abortion?. While Irish women undoubtedly also experience fear on the abortion trail, they have much more information and assurance with regards to the safety of the procedure upon their arrival in England. The second difference is that travel to Britain for Irish women is time-consuming and can be expensive. To cross the Irish Sea, women have to travel by aeroplane or boat, both of which need organising beforehand, and they will often need at least one night?s accommodation in Englad. However, women who travel from Arica in Northern Chile to the nearest town in Peru, Tacna can do so very easily and cheaply. There are regular buses that run a shuttle service across the border for $2 and take just over an hour. This means that women can travel spontaneously and cheaply and often they can be back in Chile after just a few hours. This means that women with jobs, children or other caring responsibilities can make the trip much more covertly. One healthworker I interviewed suggested that women can find a level of anonymity in Peru which is almost impossible in Arica which is small and gossipy. She told me that ?in Tacna, it?s more accessible, no-one asks any questions?. The comparison of the Chile-Peru and Ireland-England abortion trails helps us to better understand how abortion trails function across context, with important similarities and differences. As such, it allows us to theorise abortion travel in a global context. However, there are key differences and particularities that mean that the way trails work and how they are experienced by those who travel them will depend on their political and geographical contexts.
GuestPost - Wed Apr 18, 2018 14:08 This post is from Dr Sydney Calkin of the University of Durham Abortion access is fundamentally geographical: looking at abortion as an issue of space and power can help us to understand the continuities between contexts where abortion is illegal and where it is legal, as well as the gaps between abortion law and access in […] This post is from Dr Sydney Calkin of the University of Durham Abortion access is fundamentally geographical: looking at abortion as an issue of space and power can help us to understand the continuities between contexts where abortion is illegal and where it is legal, as well as the gaps between abortion law and access in practice. In this post, I draw on a geographical approach to abortion to make two arguments: first, spatial strategies to restrict abortion access often take the form of regulation of medical care that do not directly attack the legality of abortion but make it practically unavailable by making willing doctors scarce or distant. Second, medication abortion is transforming this landscape by challenging medical control over abortion and is prompting the state to respond to re-assert control. Laws that ban abortion do not operate in a geographical vacuum: in a world of increased mobility, low-cost travel, and cross-border social networks, women who live in states with highly restrictive abortion laws can (and do) access abortion by going abroad. In Ireland, for example, 9-10 Irish women still travel to Englandevery day in pursuit of abortion access. Irish women are dependent on medical services in England, so that changes in healthcare availability in England has serious consequences for non-residents. The reliance on abortion trails is not limited to inter-state travel between states with different abortion laws; it happens as well within states where abortion access is deliberately constrained and made scarce. In places where there is legal provision for abortion, opponents of abortion rights deliberately create extra-legal obstacles that widen the spaces between women seeking abortion and doctors willing to provide it. Geography becomes a useful tool for widening and compounding inequalities to access and making abortion access dependent on a woman?s mobility, as a factor of her wealth or migration status. In the USA, space is used as a deliberately strategy to create obstacles to access. Opponents of abortion access have passed a variety of measures that attempt to restrict abortion without rising to the level of violating the constitutionality of the right to abortion (as it falls under privacy with the doctor) established in the Roe v. Wade decision.[1]These often take the form of the imposition of obstacles that build up extra-legal barriers to access. Targeted Restrictions on Abortion Providers(TRAP laws) have attempted to shut abortion clinics by requiring them to modify their facilities at the level of the clinic (for instance by widening hallway space) or by shutting them down by virtue of their location (for instance by requiring them to negotiate special admitting privilegeswith nearby Catholic hospitals who will not grant such privileges). Waiting periods have attempted to raise the cost of abortion access, because in large states with few clinics, abortions that require mandatory multiple appointments and waiting periods mean women must travel long distances several times, including overnight stays and several days out of work. In some states, waiting periods between initial counselling and the abortion itself are even further drawn out: South Dakotalaw says weekends and holidays cannot count in the waiting period. In such contexts, seemingly minor legal obstacles translate directly into financial obstacles and map onto existing inequalities. Where courts have found abortion to be constitutional, and explicitly ruled against its complete prohibition, opponents have adopted spatial strategies to create large zones where abortion is legal but inaccessible. Opponents of abortion use spatial strategies to create patchy geographies of access and large zones of exclusion where abortion is legal in theory but unavailable in practice. It?s no surprise, then, that studies have found Google search results for ?DIY abortion?correlate to areas with the most restrictive laws. However, just as space is used as a resource to restrict abortion access, such creative use of space is also a resource for the expansion of reproductive freedom. Medication abortion (with pills) is a cheaper and more mobile form of abortion whose increasing availability holds out the promise of a future where abortion is not so spatially bound. These pills can cross borders more easily than women can travel across borders, and they hold out the freedom for a private abortion at home without the burden of travel. These operate in a few different ways, each with the intention of expanding the available modes of access to abortion and challenging the state by deliberately violating its laws or pushing their boundaries in productive ways. High profile campaigns by the activist group Women on Waves with shipsand droneshave raised awareness of the mobility of medication abortion, but the majority of the increases in access have come through online networks who help ship pills or provide advice. Safe abortion hotlines and online networks operate across the world to provide advice to women who seek abortion pills. They can advise women on how to access pills that must be shipped into the country, bought on the black market, or where sold for other medical conditions. Research has shown they can provide a good standard of advice and care, with medical outcomes as generally as good as clinical outcomes.[2]Over the last few years, access to medication abortion pills through online networks like Women on Web and Need Abortion Irelandhas transformed the landscape of abortion access in Ireland, where numbers of Irish women travelling to England for abortion have dropped steeply as numbers of women accessing pills has risen.[3]More formalized telemedicine technology that has been developed for rural medicineis being used to connect doctors and patientsover great distances. While ordering abortion pills online is generally illegal, and in some places prosecuted severely, formal telemedicine consultation with doctors provides a legal pathway for abortion care across distances. These kinds of activist efforts are pushing abortion access beyond the nation-state framework ? deliberately breaking the law of the state in order to facilitate access to abortion. In doing so, they?re showing us how feminist activism that starts in the home or the community can transform public policy ? what Leslie Reagan calls the ?private invading the public? and forcing change at the state level.[4]In short, there are important continuities between jurisdictions where abortion is legal and illegal, because anti-choice forces have been effective in places at curtailing access in practice by making abortion care geographically distant or raising the extra-legal barriers to access. The use of medication abortion to work around restrictive abortion laws points to the potential for wider access regardless of state laws, but it also points to the potential for changing patterns of abortion access to drive political change.
[1]Sanger, Carol. About Abortion: Terminating Pregnancy in Twenty-First Century America. Harvard University Press, 2017. [2]Grossman, D., & Grindlay, K. (2017). Safety of medical abortion provided through telemedicine compared with in person. Obstetrics & Gynecology, 130(4), 778-782; Aiken, Abigail RA, Rebecca Gomperts, and James Trussell. “Experiences and characteristics of women seeking and completing at?home medical termination of pregnancy through online telemedicine in Ireland and Northern Ireland: a population?based analysis.” BJOG: An International Journal of Obstetrics & Gynaecology 124, no. 8 (2017): 1208-1215. [3]Sheldon, Sally. 2016. ?How Can a State Control Swallowing? The Home Use of Abortion Pills in Ireland.? Reproductive Health Matters24(48): 90-101; Aiken, Abigail RA, Irena Digol, James Trussell, and Rebecca Gomperts. “Self reported outcomes and adverse events after medical abortion through online telemedicine: population based study in the Republic of Ireland and Northern Ireland.” BMJ 357 (2017): j2011. [4]Reagan, Leslie J. When abortion was a crime: Women, medicine, and law in the United States, 1867-1973. Univ of California Press, 1997.
GuestPost - Tue Apr 17, 2018 13:01 This post is from Professor Kath Browne of Maynooth University and Professor Catherine Nash of Brock University It is becoming increasingly important to give a name to the ways in which gender and sexual rights are being resisted. Those opposed to gender and sexual rights no longer employ the spectre of the ?disgusting? gay man […] This post is from Professor Kath Browne of Maynooth University and Professor Catherine Nash of Brock University It is becoming increasingly important to give a name to the ways in which gender and sexual rights are being resisted. Those opposed to gender and sexual rights no longer employ the spectre of the ?disgusting? gay man or heap scorn on ?fallen women?, as such tactics are barred, both legislatively (including criminalising hate speech) and culturally (Ireland as an egalitarian place is becoming core to national identities). However, resistances to sexual and gender rights remain and they now take a different form than in the past: they employ a framing we name as ?heteroactivism?. Heteroactivism operates distinctively in places where ?unnaturalness? cannot be linked to the figure of the ?disgusting homosexual? because this figure is now generally seen as accepted as part of the nation. Instead, heteroactivists focus on ?natural? procreation and genetics, thereby seeking to reassert heterosexuality as the ?normal?, common sense and unquestioned centre. Heteroactivism relies on a particular form of heterosexuality (married, childrearing couples, composed of normatively gendered men/women), claiming not only that it is ?best for children?, but that such configurations are the ?best for society?. Whilst it may seem that the notion of heteroactivism most clearly applies to opposition to same-sex relationships and families (as well as to the very existence of trans people) heteroactivism is also a useful term to understand those who are opposed to abortion/choice. Lesbian, Gay, Bi and Trans (LGBT) activists have been perplexed as to why anti-abortion groups engage so fervently in same-sex marriage debates. However, the distance between LGBT and anti-abortion policies is not so great for those opposed to the liberalisation of sexual and gender rights. The seemingly disparate causes of opposing abortion and same sex marriage are both part of what heteroactivists see as the undermining of the rightful place of heterosexuality and it reproductive imperative. Indeed, organisations that campaign against sexual and gender rights regard LGBT and abortion rights as overlapping and intersecting manifestations of liberal or progressive agendas. Heteroactivists see these rights and the ideas behind them as promoted by a small but coherent and well-organised cohort to the detriment of society. In Ireland, those who protest the advancement of sexual and gender laws, such as same sex marriage and abortion develop parallel arguments illustrated in the campaigns against the legalization of same sex marriage and the liberalizing of abortion laws. In the Vote No campaign for the same sex marriage referendum 2015, the use of ?surrogacy? was a key way in which gay men were evoked but not mentioned, for example the Vote No poster below. Instead, the focus was on the ?love? of the mother and the ?need? for ?a? mother, as a way of suggesting that gay men were dangerous and could not be trusted to make the ?right? choice with regards to children. Subtly bringing the ?predatory gay man? into the debate is a crucial discursive tactic which serves to vilify gay men without suggesting that they are all ?deviant?, instead focusing on ?prospects? and potentials. These subtle and unspoken references are heard clearly by LGBT people and the furtive link to concerns regarding children is a powerful heteroactivist tactic.
Vote No poster from the 2015 Irish Same-Sex Marriage Referendum The Vote No logo with a heart in the ?o?, indicates love. Countering accusations of homophobia and hateful speech levelled against heteroactivists, the heart suggests hope. It makes a no vote one that is made with, and for, a specific form of heterosexual love. The homosexual other is implicitly rejected by invoking moral society debates to create a specific Irish (hetero)sexualised nationhood, making gay men in particular less than, and other to, the Irish Mammy. In the anti-abortion campaign, there are echoes of these tactics which are specifically designed not to expressly vilify women who have sex outside of marriage, and to focus on care for ?the mother? and the baby. A prime example of this is the ?love both? sticker which echoes the ?love? of the vote no poster.; here the love is for ?both? and instead of a heart, the use of 2 O?s creates an interconnected entity that is mutually dependent. The argument is that you cannot separate the love of mother and child, you must ?love both?. This is important because ?both? implies the existence an entity that can be loved, that must be loved, the fetus implicitly becomes something that demands to be loved, to be cared for in ways that will not be possible if the 8thamendment is repealed.
The representation of the connected Os also creates an imaginary pregnant woman, and one that is quite advanced in her pregnancy, well beyond 12 weeks. However, it is not simply a pregnant woman. This visual is representing a woman and her unborn child, both. The imperative is to love, but this love cannot be only afforded to the woman, it must be given to both. In loving both, you are also ?protecting both? through ?protecting? Ireland?s 8thamendment. The call to ?love both? is crucial tactic for anti-abortion activists to avoid the either/or situation of either supporting the mother (choice) or protecting the foetus (anti-choice). Like many heteroactivists, they seek to occupy a ?middle ground?. They reject the mother or foetus opposition arguing that this enables them to ?love both?. Despite these efforts however, the crux of a referendum vote is choice. Yet it is not only about a choice, but who can choose. The imagery and text point to the idea of who can make ?good choices? and of course those who cannot, and therefore should not be allowed to do so. Those who cannot make ?good choices? must be prevented from making choices about their pregnancy, their body. To love both then is to remove choice and to ?protect? in place of care for the mother, or the foetus. It is clear then that the links within resistances to LGBT equalities and abortion are more than organisational. There are parallels that can be drawn in the campaigning tactics and visual language being used. This campaign is specifically Irish and the call to ?Protect Ireland?s 8thamendment? points to a specific form of Irishness, one that uses love to prevent access to ?immoral? choices, and seeks to draw on the ?equalities? of a ?modern Ireland?, to ?love both?. This is very different from the vilification of immoral sex out of wedlock, with a focus instead on the love for mother as well as child. This protective love asks to remove choice, whether this is the choice to marry or reproductive and health choices. Naming this as heteroactivism enables engagement with new resistances to sexual and gender rights.
GuestPost - Mon Apr 16, 2018 14:01 This blog post is from Professor Katherine Side of Memorial University, Canada Despite the lengthy process leading up to the May 25, 2018 referendum on Article 40.3.3 (the Eighth Amendment) of the Constitution, there is little direct discussion about medical abortion. Legal access to abortion in Ireland is long overdue, and pending a ?repeal and […] This blog post is from Professor Katherine Side of Memorial University, Canada Despite the lengthy process leading up to the May 25, 2018 referendum on Article 40.3.3 (the Eighth Amendment) of the Constitution, there is little direct discussion about medical abortion. Legal access to abortion in Ireland is long overdue, and pending a ?repeal and replace? vote, the Taoiseach and the Tánaiste propose a ?doctor-led? protocol [1]Where doctors? involvement provides clarity and support for medical abortion, it is likely to be welcomed. Where doctors? involvement limits access, impinges on timeliness, and breeches privacy, it is likely to be unwelcomed. Medical paternalism, legal scholar Sally Sheldon notes, can be just as restrictive as state paternalism. The referendum outcome could provide clear legalisation, safe practices, and expanded access. Consideration must be given to who is involved and how they?re involved in abortion. Medical abortions are safer with expanded access, not restricted access. Better health outcomes could be achieved through a state-supported model that balances access to medication and a wider range of qualified practitioners, with rights to safety, security, and privacy. Medical abortion combines two pills, Mifepristone and misoprostal, marketed under the tradename Mifegyne©. These medications reflect current abortion practice in Ireland. They are largely responsible for decreases in surgical abortions among non-residents in the UK.[2] Illegal use of medical abortion is not a secret. Twelve presenters discussed medical abortion at the Citizen?s Assembly.[3]Professor Abigail Aiken shared research examining medical abortion use in Ireland and Northern Ireland with the Joint Oireachtas Committee.[4] People before Profit TD, Brid Smith displayed a package of medical abortion pills in the Dáil. The Citizen?s Assembly and the Joint Committee recommend that abortion risk be defined by clinical practice. Medical abortion is included in the World Health Organization?s clinical practice guidelines for safe abortion. A growing body of evidence questions the necessity of medical supervision.[5] The reality is that medical abortion pills have been used in private Irish homes for a decade without medical supervision or negative side effects.[6] The introduction of a doctor-led protocol for medical abortion will likely limit access. The proposed wait time of up to 72 hours between pregnancy confirmation and medical abortion access doubles domestic travel requirements and costs.[7] It lengthens an already limited window for the use of medical abortion pills.[8] Proposed reporting mechanisms involving two physicians, reporting to the Health Service Executive and the Minister of Health focus on gatekeepers, instead of on a rights-based approach to access.[9] A growing body of evidence from the United States indicates that medical supervision is often accompanied by non-medically necessary requirements (i.e. scans, tests, directive counselling, consent) that interfere with the safety of early abortions.[10] Advocacy groups have already pioneered telemedicine access for safe medical abortion.[11]The Ethical Guidelines of the Irish Medical Council permit doctors in Ireland to practice telemedicine. [Irish Medical Council. 2016. Guide to Professional Conduct and Ethics for Registered Medical Practitioners, 8thEdition). A state-led model of telemedicine for medical abortion reduces domestic travel needs and costs. It cuts unnecessary wait times, ensures privacy, and permits early access, which enhance safety.The needs of difficult-to-access and vulnerable populations could be met by English language translation servicesthat are already included in telemedicine services; and, telemedicine would permit state assurances about the safety of medications. Telemedicine might appeal to some doctors.[12] It doesn?t require a significant financial investment for infrastructure and keeps operational and overhead costs low. It accommodates doctors? urban concentration, addresses their workload issues, and offers flexible scheduling that is likely to result in fewer missed appointments. Shared responsibilities with other specialists would benefit doctors and enhance access.[13]Allowing nurse prescribers and midwives to support medical abortion recognises their ?advanced levels of practice,? promotes timely access, and better services rural health needs. And, their work as health practitioners is deemed ?appropriate and safe? by independent reviewers.[14] In exceptional circumstances, after care needs could be met by non-profit sexual health agencies, or the Health Service Executive?s Sexual Health and Crisis Pregnancy Programme. Both already provide aftercare for illegal medical abortions in Ireland. A broadly resourced, state-run, telemedicine system for medical abortion models good management practices by providing safe services with the appropriate providers, instead of relying on specialised medical experts to oversee the provision of routine, low-risk procedures. Medically supervised locations and home-based practices are not mutually exclusive. In Sweden, France, and Great Britain, who is involved and the locations of medical abortion are combined in ways that permit flexibility and accommodate users without risking safety. This combined model could also, in the short term, accommodate hospitals that assign low priority to abortion access.[15] The Policy Paper for the Regulation of the Termination of Pregnancy proposes that a person who procures, or seeks to procure their own abortion would not be guilty of an offence; yet it is silent about the realities of medical abortion. This silence is unlikely to change medical abortion practices in Ireland. The proposed imposition of a new regime of medical supervision may not change practices either, and it may limit opportunities for the future development of a rights-based approach to health.
[[1]]The Tánaiste calls for the imposition of ?strict medical guidelines.? [[2]]Under the 2013 Protection of Life During Pregnancy Act, surgical abortions in Ireland are rare. [[3]]Not all presenters were asked requested to address abortion. [[4]]Aiken, Abigail, Irena Digol, James Trussell and Rebecca Gomperts. 2017. ?Self-Reported Outcomes and Adverse Events after Abortion through Online Telemedicine,? British Medical Journal357: 1-8. http://www.bmj.com/content/357/bmj.j2011?utm_source=rss&utm_medium=rss [[5]]Grindlay, Kate, Kathleen Lane and Daniel Grossman. 2013. ?Women?s and Provider?s Experiences with Medical Abortion Provided through Telemedicine: A Qualitative Study,? Women?s Health Issues23 (2): 117-122. https://doi.org.10.1016/j.whi.2012.12.002?utm_source=rss&utm_medium=rssand, Raymond, Elizabeth, Daniel Grossman, Ellen Weibe, Beverly Winikoff. 2015. ?Reaching Women Where They Are: Eliminating the Initial In-Person Medical Abortion Visit,? Contraception92 (3): 190-193. https://doi.org/10/1016.j,contraception.2015.06.020?utm_source=rss&utm_medium... [[6]]Ngo, Thoai, Min Hae Park, Haleema Shakur, and Caroline Free. 2011. ?Comparative Effectiveness, Safety and Acceptability of Medical Abortion at Home and in a Clinic: A Systemic Review,? Bulletin of World Health Organization89: 360-370. http://europepmc.org/articles/PMC3089386?utm_source=rss&utm_medium=rss [[7]]https://www.irishtimes.com/news/politics/policy-paper-to-include-time-period-... , Department of Health.2018. Appendix 2, Policy Paper, Regulation of Termination of Pregnancy. 08 March.http://health.gov.ie/wp-content/uploads/2018/03/Policy-paper-approved-by-Gove... Research in Canada finds that those who travelled furthest to access legal domestic abortion services reported ?more difficult?journeys (Sethna and Doull 2013, 53). Sethna, Christabelle and Marianne Doull. 2013. ?Spatial Disparities and Travel to Freestanding Abortion Clinics in Canada,? Women?s Studies International Forum38: 152-162. http://dx.doi.org/10.1016/j.wsif.2013.02.001?utm_source=rss&utm_medium=rss [[8]]The WHO recommends use for less than 12 weeks, or 84 days; current providers provide pills in Ireland up to10 weeks gestation. [[9]]de Londras, Fiona and Mairead Enright. Repealing the 8th? Reforming Irish Abortion Law. Bristol: Policy Press, 2018. [[10]]Boonstra, Heather? Medication Abortion Restrictions Burden Women and Providers and Threaten U.S. Trend Towards very Early Abortion,? Guttmacher Policy Review16 (1) https://www.guttmacher.org/gpr/2013/03/medication-abortion-restrictions-burde... [[11]]Some advocacy groups use doctors for telemedicine abortion access; others do not. [[12]]Grindlay, Kate, Kathleen Lane and Daniel Grossman. 2013. ?Women?s and Provider?s Experiences with Medical Abortion Provided through Telemedicine: A Qualitative Study,? Women?s Health Issues23 (2): 117-122. https://doi.org.10.1016/j.whi.2012.12.002?utm_source=rss&utm_medium=rss [[13]]Naughton, Corina, Jonathan Drennan, Abbey Hyde, Deirdre Allen, Kathleen O?Boyle, Patrick Felle and Michelle Butler. 2012. ?An Evaluation of the Appropriateness and Safety of Nurse and Midwife Prescribing in Ireland,? Journal of Advanced Nursing69 (7): 1478-1488. https://doi-org.qe2a-proxy.mun.a/10.1111/jan.12004?utm_source=rss&utm_medium=... [14]Naughton, Corina, Jonathan Drennan, Abbey Hyde, Deirdre Allen, Kathleen O?Boyle, Patrick Felle and Michelle Butler. 2012. ?An Evaluation of the Appropriateness and Safety of Nurse and Midwife Prescribing in Ireland,? Journal of Advanced Nursing69 (7):1485. https://doi-org.qe2a-proxy.mun.a/10.1111/jan.12004?utm_source=rss&utm_medium=... [[15]]Jones, Rebecca and Stanley Henshaw. 2002. ?Mifepristone for Early Medical Abortion: Experience in France, Great Britain, and Sweden,? Perspectives of Sexual and Reproductive Health34 (3): 154-161. https://www.guttmacher.org/sites/default/files/article_files/3415402.pdf?utm_...
Fiona de Londras - Mon Apr 16, 2018 13:58 On 27 February 2018 the Institute for Advanced Studies at the University of Birmingham hosted a workshop, organised by Fiona de Londras and Sydney Calkin, on ‘Spatiality and Abortion Travel’. This was generously hosted by the Long Room Hub in Trinity College Dublin. Focusing primarily on Ireland, the day considered abortion travel and the ‘spaces’ […] On 27 February 2018 the Institute for Advanced Studies at the University of Birmingham hosted a workshop, organised by Fiona de Londras and Sydney Calkin, on ‘Spatiality and Abortion Travel’. This was generously hosted by the Long Room Hub in Trinity College Dublin. Focusing primarily on Ireland, the day considered abortion travel and the ‘spaces’ between abortion law and the reality of access to abortion across disciplines and countries. Over the course of this week we will publish one post per day presenting some of the insights from the workshop. The hashtag is #abortiontravel
Fiona de Londras - Sat Jan 20, 2018 12:58 In the last week, while the members of the Oireachtas were making statements in response to the report of the Joint Committee on the 8th Amendment as well as the Citizens’ Assembly recommendations which it discussed, the spectre of repeal and replace has arisen again. The Citizens’ Assembly recommended the repeal of the 8th Amendment […] In the last week, while the members of the Oireachtas were making statements in response to the report of the Joint Committee on the 8th Amendment as well as the Citizens’ Assembly recommendations which it discussed, the spectre of repeal and replace has arisen again. The Citizens’ Assembly recommended the repeal of the 8th Amendment and its replacement with a provision ?explicitly authorising the Oireachtas to address termination of pregnancy, any rights of the unborn and any rights of the pregnant woman?. It is broadly agreed that in doing so the Assembly was reflecting a concern with the possibility of residual constitutional foetal rights existing that might, through subsequent litigation, be found to frustrate or circumscribe the Oireachtas in legislating for abortion. The Joint Committee acknowledged that concern but, finding the risk of it materialising in ?real life? marginal, proposed instead a ?repeal simpliciter? that would delete Article 40.3.3 and not replace it with anything. We now hear that both the Taoiseach and, potentially, leader of Fianna Fáil Micheál Martin are concerned with the possible ramifications of repeal simpliciter, so that repeal and replace is firmly ?back on the table?. In this post I outline (a) whether this is necessary, and (b) if it were to be pursued what the options are. Is repeal and replace necessary? There is an arguable legal case that repeal and replace is necessary if we want to ensure that the Oireachtas has the power to legislate for abortion unrestricted by any constitutional rights of the foetus. This is because (a) there are some (non-binding) suggestions from early case law that the foetus had constitutional rights before the insertion of the 8th Amendment in 1983, (b) there are some (conflicting) suggestions from contemporary case law that the foetus may have a larger suite of constitutional rights than ?only? the right to life enshrined in Article 40.3.3. So there is some cause for concern. However, it is reasonable to expect that should the electorate vote to remove the 8th Amendment in the context of the current repeal debates and discourse?i.e. clearly to allow for a substantial legislative space for the Oireachtas?that any court faced with an argument of foetal constitutional rights would most likely interpret the deletion of Article 40.3.3 as removing constitutional rights from ?the unborn?. This would not mean that there would be an absolute right to access abortion: the rights on which access to abortion would then rely (e.g. privacy, and bodily integrity) can be limited by the pursuit of a legitimate social aim provided those limitations are proportionate. So, as in other countries, time limits or procedural requirements could be imposed on access to abortion, but those limitations could not diminish the ?heart? of a pregnant person?s right to access lawful abortion. In all likelihood, then, a simple repeal would ensure the Oireachtas could legislate for access to abortion and that unenumerated foetal rights would not exist to undermine or frustrate that. But of course such an outcome cannot be guaranteed, and it seems to be this?this quest for absolute legal certainty?that is driving much of the argument in favour of a replacement provision. To some extent it seems as if politicians want to be absolutely sure of what they can do so that no claims of unconstitutionality would emerge. But legal certainty of that kind just doesn’t exist; not in any field of policy. Instead, we seek a reasonable level of legal certainty within which the Oireachtas can operate and accept that from time to time a challenge in court might reveal that it overstepped its constitutional bounds. There appears to be a political nervousness, though, in accepting such a level of certainty as sufficient in the context of abortion (on which see this excellent analysis from Máiréad Enright). This might well be where the suggestions that abortion law could even be immune from judicial review come from, notwithstanding the extraordinary and (to my mind at least) unjustifiable nature of such a proposition. So, while there may be a technical legal argument in favour of repeal and replace (indeed, this is an argument that I myself subscribed to for some time?see p. 11 and following here), what underpins it may well be a deep desire for some absolute and final determination of the constitutional position on abortion, absolving the Oireachtas of its usual role of making a judgement about whether proposals are or are not constitutional, and removing the possibility of constitutional judicial oversight. Options for Replace If the proposal to repeal and replace is pursued, then the replacement provision must be carefully considered. There does not seem to be any realistic argument being made that a replacement provision would try to enunciate the situations in which abortion would lawfully be available in Ireland; the mention in Micheál Martin?s speech of an ?enabling? provision, for example, indicates clearly that such a detailed provision is not in mind. Nor should it be. As agreed almost universally by experts at the Joint Committee, such a complex provision would create unacceptable levels of uncertainty and a cumbersome and unworkable constitutional landscape. Instead, if what is sought is a simple enabling provision, then it should be designed by reference to its objectives:
As I have previously argued, doing that can be achieved by a simple provision such as ?Nothing in this Constitution prohibits abortion as provided for by law?. Should one prefer a more positive wording, something like ?The Oireachtas is hereby empowered to regulate the termination of pregnancy by law? might be considered, but the latter wording does not clearly indicate that (if they exist) unenumerated foetal rights have been repealed. What is of fundamental importance, however, is that any proposed replacement should not attempt to reinsert ?the unborn? as a constitutional rights bearer, or to ?balance? the rights of the pregnant person and the foetus in its text. To do this would simply muddy the waters of the scope and nature of the Oireachtas’ legislative authority and pregnant people’s constitutional rights, and in doing so utterly undermine the decisional security that pregnant people need to make decisions that are right for them about whether to continue with a pregnancy. The protection and preservation of foetal life is a legitimate and valuable societal goal. However, when that is pursued by endowing the foetus with constitutional rights it sets up a legal contest of rights between a pregnant woman her foetus that inevitably results in the practical reduction of women?s enjoyment of constitutional rights. It is far better to pursue the preservation of foetal life through the promotion of voluntary and consensual pregnancy by providing appropriate sex education, contraception, health care, effective and adequate social and socio-economic supports for parenting, and a well-designed law regulating abortion in which proportionate limitations on or procedural requirements for access to abortion are laid down in law. Such a law much be accompanied by rights-based guidelines and medical training, and must place at its centre the wishes, well being, health and empowerment of pregnant women. A replacement constitutional provision cannot hope to achieve that, and if it is to be pursued at all, must be a simple enabling provision that enhances clarity around the legislative power of the Oireachtas by ensuring that residual foetal constitutional rights cannot be invoked to prevent access to lawful abortion. This draws to some extent on arguments made in Fiona de Londras & Máiréad Enright, Repealing the 8th: Reforming Abortion Law in Ireland in which we argue in favour of repeal simpliciter. The book will be published on 7 February 2018 and will be made available for free online.
GuestPost - Mon Jan 15, 2018 09:30 This guest post is contributed by Donnchadh O’Conaill, a post-doctorate researcher at the Department of Philosophy in the University of Fribourg, Switzerland. It is written and contributed in a personal capacity. This week the Dail meets to discuss the Oireachtas Committee ‘s recommendation that abortion be allowed on request up to 12 weeks into a […] This guest post is contributed by Donnchadh O’Conaill, a post-doctorate researcher at the Department of Philosophy in the University of Fribourg, Switzerland. It is written and contributed in a personal capacity. This week the Dail meets to discuss the Oireachtas Committee ‘s recommendation that abortion be allowed on request up to 12 weeks into a pregnancy. This is likely, though by no means certain, to form the basis of a proposal to remove the Eighth Amendment from the Constitution. The committee’s recommendation was a politically momentous decision, but one which may have even greater significance in shaping the direction of the national debate to come. Until recently much of the narrative around repealing the Eighth Amendment had focused on certain types of cases and on specific grounds on which abortion might be justified. These cases included fatal foetal abnormalities and pregnancies which occur as a result of rape or incest.[i] Stories describing these cases are undeniably powerful. They are by no means the only kinds of case which have been discussed, but they have been central to the growing movement for repeal. The Oireachtas Committee’s recommendations are likely to shift the focus of the debate away from specific kinds of case and towards considering access to abortion regardless of the woman’s reasons (within a time limit). This change presents certain opportunities for the repeal side, but also for their opponents. For the repeal side, it allows for a much more workable law, should a referendum be held and carried; in contrast, it would be extremely difficult to craft a law allowing abortion on the specific grounds of rape or incest. A law based on time limits would bring Irish law into line with most other regimes in the EU, which tend to allow abortion on request up to a certain time limit, with exceptions on limited grounds after that point. And it may allow repeal campaigners to argue that the chances of further liberalisation would be slim, considering how little change there has been in the abortion regimes of most EU countries with comparable laws. This proposal also offers opportunities for opponents of repeal. Most importantly, the recommendations would amount to abortion on demand, albeit within a strict time limit (one may not want to use this phrase, but allowing abortion regardless of the specific reasons the woman has for requesting it is what it means). A large section of the Irish public would have serious reservations about this prospect. More generally, allowing abortion within a limited time frame in effect acknowledges that the moral status of the foetus changes as it develops. The foetus undergoes enormous physiological changes between conception and birth. One line of thinking is that these changes have moral significance ? bluntly put, the life of a zygote is less important than that of a foetus which is much closer to term. Implicit in this view is a certain picture of what the moral value of a foetus consists in. And this is where the really deep philosophical difference between pro-life and pro-choice views is found. To make the point clearer, it helps to distinguish three different kinds of question one can ask about abortion: we can term these the moral, legal and meta-ethical questions, respectively. The moral question is whether abortion is ever permissable, morally speaking, and if so in which circumstances.[ii] The legal question is whether abortion should be legally available, and if so in which circumstances. The meta-ethical question may be less familiar, at least under that description. Meta-ethics is, very roughly, the study of moral values, properties or concepts.[iii] Rather than asking what is good or what is morally permitted, we ask what is morally valuable, and why. The central meta-ethical question about abortion is as follows: what is it about the foetus which makes it morally important, to the extent that it is morally important? An opponent of abortion will often answer that its humanity, the fact that a foetus is a living human being, is enough to give it the same moral value as any other human. Someone who supports the widespread availability of abortion may propose that the foetus is valuable only when it can survive outside of the womb; or they may suggest that the foetus acquires a moral status comparable to an infant or an older person only when it becomes sentient, i.e., becomes capable of having conscious experiences. This is generally agreed to occur in the second trimester at the very earliest. The meta-ethical question is a genuinely difficult one, and it is trecherous terrain for proponents of repeal. That abortion is the taking of an innocent human life, and that this is always a bad thing, is a clear line for opponents of abortion to take. It is trickier to argue that some human lives are not as important as others; taking this line requires clarifying what it is about human lives which makes some valuable and others not, and that is not an easy task. Given the recommendations of the committe, it will be difficult for proponents of repeal to avoid the meta-ethical question. This is because the committee’s recommendations would, if enacted, in effest amount to adopting two different legal regimes concerning abortion: unrestricted access up to twelve weeks, restricted access thereafter. Supporters of repeal must not only be able to justify each regime separately, but must have some answer as to why the two should go together.[iv] By far the most obvious answer is that the law should take account of changes in the moral status of the foetus as it grows and develops.[v] The difficulty is how this change in moral status is best understood and most effectively defended.
[i] For instance, Amnesty International has made such cases a prominent part of its campaigning for repeal (https://www.amnesty.org.uk/ireland-abortion-laws-repeal-eighth-amendment?utm_... ). [ii] A further question concerns the circumstances under which abortion would be, if morally permitted, the right choice. For an excellent disucssion see Rosalind Hursthouse, ‘Virtue Theory and Abortion’. [iii] For an accessible introduction see http://www.iep.utm.edu/metaethi/?utm_source=rss&utm_medium=rss. [iv] Nor would it help for proponents of repeal to argue that just one regime or the other should be enacted. There is little chance that the public would accept abortion on request without time limits , and legislating for abortion on the basis of specific grounds, e.g., rape or incest, would be inpracticable. [v] Something like this was proposed, in passing, by John Crown (https://www.independent.ie/opinion/analysis/doctors-need-to-join-in-the-embry... ).
admin - Tue Nov 07, 2017 11:56 Today, 10 human rights organisations including the Irish Council of Civil Liberties (ICCL) brought a court challenge against the lawfulness of the UK Government?s mass digital surveillance regime. They argued at the European Court of Human Rights that the UK government?s ability to access people?s private communications, without their knowledge or consent, is unlawful. The […] Today, 10 human rights organisations including the Irish Council of Civil Liberties (ICCL) brought a court challenge against the lawfulness of the UK Government?s mass digital surveillance regime. They argued at the European Court of Human Rights that the UK government?s ability to access people?s private communications, without their knowledge or consent, is unlawful. The case is founded on Articles 8 (the right to privacy), Article 10 (the right to freedom of expression and information), and Article 14 (against discrimination) of the European Convention on Human Rights. This is not the first time ICCL has challenged the UK?s surveillance systems. In 1999, ICCL, Liberty and British-Irish Rights Watch brought another challenge to the Strasbourg Court in relation to the UK Ministry of Defence?s system of surveillance. In its 2008 judgment, the Court found that the UK system was in breach of the right to respect for private and family life under Article 8. Almost ten years later, the present case concerns the existence of digital surveillance programs that are now far more extensive and powerful. Edward Snowden revealed through released documents in 2013 that governments across the world are using modern technology to collect our private communications in bulk. The UK has intercepted and stored all communications entering and leaving the UK via fibre-optic cables. Here in Ireland, fibre-optic cables are also alleged by Snowden released documents to have been intercepted. The Snowden documents show specifically how the framework of cables connecting Ireland to digital information beyond its borders are being tapped by the UK government. Apart from everyday citizens, the UK government is also watching human rights organisations aligned with the ICCL, giving rise to grave concerns about the impact of surveillance on democratic freedoms. In particular, we now know that they?ve spied on the South African Legal Resources Centre, a rights group connected with the ICCL through the International Network of Civil Law Organisations (INCLO). INCLO is 13 independent national human rights organizations in the global North and South. This level of interference in our private activities via digital surveillance is unprecedented. Through access to our digital data, governments can now easily see where we?re going, who we?re talking to, and what interests we have. All without our knowledge or consent. The ICCL stands against these encroachments on our fundamental right to privacy. Several INCLO members have also joined Tuesday’s court challenge against the UK?s international surveillance regime, including the Legal Resource Centre, Liberty, the American Civil Liberties Union, the Egyptian Initiative for Personal Rights, and the Canadian Civil Liberties Association. As Martha Spurrier, Liberty?s Director has written of the mass surveillance: ?No democratic state has ever deployed it against its citizens and human rights advocates and remained a rights-respecting democracy?. The Snowden files have shown the world the power and potential threat that modern mass surveillance poses to our privacy and to democratic freedoms. We at the ICCL and our international human rights colleagues understand that it is necessary to work together to safeguard privacy rights on a global scale. We will continue to fight, at the European Courts and elsewhere, against the erosion of our hard earned democratic rights via government programs of mass digital surveillance. Elizabeth Farries is the Information Rights Program Manager for both the Irish Council of Civil Liberties and the International Network of Civil Law Organizations. She is also a PhD Candidate researching digital privacy rights and cybermisogyny at the Trinity College Dublin.
Eilionoir Flynn - Mon Oct 23, 2017 12:53 Human Rights in Ireland is delighted to welcome this guest post from Aine Sperrin. Aine is a PhD student at the Centre for Disability Law and Policy, NUI Galway, where her research focuses on achieving the right to independent living for people with intellectual disabilities in post-conflict states. This blog has been written by Aine in […] Human Rights in Ireland is delighted to welcome this guest post from Aine Sperrin. Aine is a PhD student at the Centre for Disability Law and Policy, NUI Galway, where her research focuses on achieving the right to independent living for people with intellectual disabilities in post-conflict states. This blog has been written by Aine in a personal capacity and does not represent the opinions or positions of any organisation with which she is associated. This year marks the tenth anniversary of Ireland signing the United Nations Convention on the Rights of Persons with Disabilities (CRPD). This landmark has been seized upon by disability advocates to highlight the delay in recognition of their rights. It has prompted a resurgence of rights awareness and reignited a public discussion on the standards of services and lack thereof for persons with disabilities. Independent living is an activity which the majority of us perform every day. It is fundamentally based on utilising the resources and supports necessary to live our daily lives in the way which we see fit. The concept evolved when patriarchal, segregated medical models of disability services were rejected by persons with disabilities in the 1960s in the United States. The ethos of the Independent Living Movement demanded choice and control over one?s own services and recognition of society creating disabling barriers. While all human rights apply non-discriminatorily to everyone, persons with disabilities do not enjoy their fundamental human rights on an equal basis with others. The recognition of these inequalities prompted the United Nations to draft a disability specific Convention. The CRPD does not create any new rights. It provides a framework for existing civil, political, social, economic and cultural rights to be implemented for persons with disabilities. Article 19 of CRPD relates to independent living and community participation. It provides significant detail into what actions States should take to achieve independent living. ?States Parties to this Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that: (a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement; (b) Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community; (c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.’ Alongside the actual text of Article 19, there are numerous guidance documents from international human rights bodies. These include the 2017 annual thematic report on independent living from the Office of the High Commissioner for Human Rights, research by the European Union Agency for Fundamental Rights and most specifically to this discussion General Comment No 5 from the Committee on the Rights of Persons with Disabilities. United Nations General Comments provides in-depth guidance by a Treaty Monitoring Body on a particular issue. CRPD General Comment No. 5 recognises the historic deprivation of choice and control in the lives of persons with disabilities. It reinforces persons with disabilities as rights holders but recognises the continuing social exclusion arising from disability. The interdependence of civil and political rights with economic, social and cultural rights enshrined in Article 19 is highlighted as well as the protection for the right to independent living and community participation by other human rights treaties. Article 19 can provide a supportive role to the international development agenda and Sustainable Development Goals by ensuring accessibility of sustainable cities and human settlements. The Comment notes the progress made in realising Article 19 by numerous states to date but identifies the barriers which remain. These include denial of legal capacity which limit decision making about living arrangements, inadequacy of social support and protection to facilitate independent living. Likewise at a national level inadequate legal frameworks and budgets, the continuation of institutionalisation and lack of deinstitutionalisation strategies also contribute to preventing full participation in communities. At community levels attitudinal barriers, inaccessible public services, lack of monitoring of Article 19 initiatives, continued segregation of disability issues and inconsistencies in rural/urban experiences contribute to preventing enjoyment of Article 19 for persons with disabilities. The General Comment focuses in detail on each aspect contained within Article 19. The discussion on Article 19 (a) suggests that the enjoyment of the right to independent living goes further than merely conducting daily activities. Independent living entails exercising choice and control in all aspects of daily life. The General Comment acknowledges that the physical building an individual occupies does not equate to independent living where there are restrictions imposed regarding living arrangements, segregation from the community and a disproportionate amount of persons with disabilities resident within a setting. Personal assistance provided for by Article 19 (b) should be an option to avail of disability services in which the individual can act as an employer themselves. It is also possible to contract out the role of the employer. The elements required for CRPD compliant personal assistance are provision of funding based on individual criteria, control of the service by the individual and the maintenance of a one-to-one relationship with the assistant. Appropriate supports should be provided to facilitate communication of direction of personal assistance services. Accessibility of non-disability specific facilities which are available to the general population is contained within Article 19 (c). These include facilities where commercial, educational, transport, and social activities occur. Community development must accompany deinstitutionalisation programmes in order to be successful. Residential properties which are accessible and adaptable should be made available in the community, must be of a variety to facilitate individuals and families and must also be affordable. Arguments by States of the inability of some persons with disabilities to live independently due to high support needs are incompatible with Article 19. The enjoyment of the right to live independently across gender, age, sexuality, ethnicity, race, refugee and asylum status, religious belief and linguistic minority is highlighted. Economic considerations cannot take precedence over the human rights of the individual. The provision of choice and access to information on choices are central elements to accessing independent living in a CRPD compliant manner. Connected to this is recognition of legal capacity to have choices and decisions respected as enshrined in Article 12 CRPD. The recognition of persons with disabilities as rights holders when accessing individualised support rejects the medical and charitable models of service provision. The State is obliged to immediately implement the right to choose one?s place of residence as this is a civil-political right. The socio-economic rights to individualised support must be realised progressively. The state must not act in such a way to violate Article 19 and it must protect the individual from violations from families, third parties or entities. It must also promote the right to independent living through all of its statutory functions such as judicial, budgetary and administrative. The General Comment also highlights the interdependence of Article 19 on the fulfilment of other CRPD provisions such as the rights to non-discrimination, accessibility, education and awareness raising. Steps to be taken at a national level are clearly outlined. The provision of adequate resources for independent living, consultation with persons with disabilities on deinstitutionalisation strategies, tackling negative attitudes and monitoring deinstitutionalisation strategies are among the recommendations which Ireland could benefit from the most. Independent living as outlined in the General Comment No. 5 is the gold standard for which Ireland should be aiming. There are worrying developments in relation to how alternative appropriate supports are not being devised and delivered alongside the process of deinstitutionalisation in Ireland today. At a Department of Health public consultation on personalised budgets which I attended on 11th October 2017 the importance of choice and control was high on the agenda. Self-advocates, families and representatives of the disability sector highlighted that when there are no services available, that choice remains theoretical. Assessments of need are provided with no guarantee of the needs being addressed. This is a reality in pre-CRPD ratification Ireland. The Taskforce on Personalised Budgets heard this. There is ample guidance from expert bodies. The State must capitalise on the wealth of international expertise on how to approach independent living for persons with disabilities.
Fiona de Londras - Tue Oct 03, 2017 06:31 Fiona de Londras | @fdelond There is going to be a referendum on the 8th Amendment in 2018. That much is clear. What we don?t yet know is what proposition will be put to the people. In part, this is because the Citizens Assembly recommended that Article 40.3.3 ?should be replaced with a constitutional provision […] Fiona de Londras | @fdelond There is going to be a referendum on the 8th Amendment in 2018. That much is clear. What we don?t yet know is what proposition will be put to the people. In part, this is because the Citizens Assembly recommended that Article 40.3.3 ?should be replaced with a constitutional provision that explicitly authorises the Oireachtas to legislate to address termination of pregnancy, any rights of the unborn and any rights of the pregnant woman?. In doing this, it is very clear that the Assembly was concerned to ensure that the Oireachtas would have the power to introduce wide-ranging abortion law reform should it wish to do so; this is evident from the legislative recommendations it then went on to make. Whether the Assembly meant that the Oireachtas should be given an express power to legislate, or whether it meant that the Oireachtas should have the power to create law that would be immune from constitutional challenge is unclear: I discussed this here. What is clear, though, is that the Assembly wanted there to be no dispute about the power of the Parliament to make law for abortion. Why, then, did it recommend repeal rather than replace? The concern about repeal A simple ?repeal? would simply delete Article 40.3.3 from the Constitution, leaving constitutional silence about abortion. This is, actually, the most common scenario when we look at constitutions around the world. As Máiréad Enright noted here, it is quite rare explicitly to govern abortion through the constitutional text. Why, then, is there some doubt about whether or not to simply embrace constitutional silence in Ireland? The main reason is that it is not entirely clear whether the foetus had constitutional rights before the 8th Amendment was inserted in 1983, if so how extensive those rights were, and whether they would still exist even if the text in Article 40.3.3 were removed. In other words, there is an arguable case that simple repeal would not make sufficiently clear that the Oireachtas can legislate for abortion, even to what many would consider a fairly extensive degree (as recommended by the Assembly), and that any law that might be passed would be struck down by the Courts for unconstitutionally interfering with foetal constitutional rights. It is very clear?and widely acknowledged?that this is an unlikely scenario, but it is a possible one. It is also possible, but unlikely, that a Court would say that removing Article 40.3.3 would create an unlimited right to access abortion so that no restrictions on abortion would be permitted (e.g. term limits, or grounds). By far the most likely outcome is that abortion could simply be regulated in the same way as we regulate most things. That is: the Constitution would require that laws for abortion respect recognised constitutional rights, such as pregnant persons’ rights to privacy and bodily autonomy. However, in doing that the Oireachtas could interfere with these rights (or limit them, let?s say) provided (i) they did so in pursuit of a legitimate aim, and (ii) they did so in a manner that was proportionate. In other words, the Oireachtas could limit abortion access in order to pursue the societal value of preserving foetal life, but would have to ensure that limitations did not disproportionately interfere with women?s constitutional rights. It would have to strike a balance, just as the Citizens Assembly recommendation suggests. The options for replace The argument for replace is, in broad terms, that a replacement provision might make it clearer to both the Courts and the Oireachtas how the balance is to be struck. There are a couple of ways this could be achieved:
Let me address each of these separately. Expressly striking the balance by specifying grounds in the Constitution This approach would involve saying that abortion was only permitted in specified cases. We might reasonably expect these to be at least rape, incest, ?fatal foetal abnormality?, risk to life, and perhaps (serious) risk to health. The provision might say either that the Oireachtas may or that the Oireachtas must make abortion available in these cases; the latter of course would exclude any realistic possibility of foot-dragging. However, specifying grounds has a number of significant disadvantages. First, it requires the terms themselves to be defined in a way that makes them usable. Given that we have not managed properly to define ?unborn? in 34 years of jurisprudence on the 8th Amendment one wonders whether this is possible. Second, it is not clear how one would access abortion under these grounds?would you have to report a rape, for example?and there would be a possibility that legislation providing access to abortion would be struck down for making it practically impossible to access abortion even in these cases (by, for example, placing undue obstacles in the path of trying to exercise these rights). Third, it would tie the hands of the Oireachtas, which would not be able to respond to political, scientific, medical or other developments in order to make abortion more (or less) widely available in the future; that would require a referendum. Fourthly, it would simply not meet the needs of thousands of pregnant persons in Ireland who cannot access legal abortion in this country now. In other words, it would not solve the problem. It also would not enable the kind of legislative change clearly envisaged by the Citizens Assembly. Clearly establishing that foetal constitutional rights do not exist or act such to prohibit the regulation of abortion There are a few ways that a new constitutional text might make clear that the Oireachtas can legislate for abortion without being curtailed by legally enforceable, constitutional rights. The simplest is probably to insert a phrase such as ?Nothing in this Constitution shall prohibit abortion as provided for by law?. Such a phrase makes it clear that the Oireachtas is permitted to legislate for abortion, although it does not compel it. It also clarifies the situation vis-à-vis foetal rights, so that when legislating for abortion the Oireachtas has to simply take into account whether any legislation it is proposing properly vindicates the rights of pregnant persons. As already mentioned, it could pursue a societal aim of preserving foetal life, but in doing so it could not interfere disproportionately with women?s rights. This provision very simply, in other words, places abortion into the realm of ordinary decision making for the legislature: it makes it clear that it can be approached as an object of law-making in the same way as any other issue, while clarifying that the Oireachtas is not constitutionally constrained from providing for abortion access. What this proposed provision does not do is expressly to mention or address the broader implications of the 8th amendment. The 8th amendment is part of a socio-legal tapestry of norms, practices and behaviours in medical and legal practice that means that, when pregnant, women often experience a broad disregard for their consent, autonomy, and self-determination, including in labour. There is an understandable concern to try to ensure that addressing the 8th Amendment also addresses these broader implications. However, the negative wording I have suggested above would allow that to happen. First, removing the 8th Amendment would remove the constitutional ?nudge? towards an approach to maternal medical care that means that so many women experience disempowering and disempowered pregnancies. Second, removing the 8th Amendment would return pregnancy to the realm of ordinary constitutional rights protection, so that pregnant persons would reach for and seek to assert constitutional rights (such as privacy or bodily autonomy) in order to resist repressive approaches to medical and health care relating to a pregnancy. Whether this would be sufficient materially to change practice would depend on the broader approach to implementing constitutional change: it will require not only legislation on abortion, but possibly also legislation on autonomy and pregnancy rights, and certainly practicing protocols and guidance for the medical profession, as well as training and engagement in rights-based approaches to maternal medical care. However, that would likely be the case regardless of the choice of words inserted into the Constitution. Providing for an express, positive right to reproductive autonomy or health, or to self-determination in medical decision-making One possible approach that has received remarkably little attention is to insert a positive right to reproductive autonomy or reproductive health in the Constitution. This was never proposed to the Citizens Assembly, even though it exists in numerous constitutional orders around the world. Such a right would positively compel legislative change to ensure that autonomy was guaranteed during pregnancy (including labour) and, indeed, in relation to questions of becoming and staying pregnant. Such a right would ensure, thus, that the constitutional change ?reaches? the broader socio-legal implications of the 8th Amendment. It would also allow for the limitation of abortion access again provided that was done in pursuit of a legitimate aim (such as the preservation of foetal life) and in doing so only interfered proportionately with the right to reproductive autonomy/health as protected by the Constitution. In many ways, this option is both the least considered and the neatest approach to remedying the perceived difficulties with the 8th Amendment. Repeal or replace? Whether one favours repeal or replace very much depends (a) on how concerned one is about the uncertainty that might arise in the case of repeal, (b) what the wording of the proposed replacement is, and (c) how one interprets the political situation in which a referendum is likely to take place. If one is sufficiently concerned about the uncertainty that might arise, wants to propose something that they consider is likely to garner the support of much of the political class (which would then campaign for it, one assumes), would provide reasonably certain parameters for legislative action, and would enable the assertion of rights during pregnancy beyond abortion, then replacement with something like the ?Nothing in this Constitution?? provision would seem most likely to fit the bill. However, the gains are somewhat marginal when compared with a simple ?repeal? provision. The only question is whether the political establishment will (a) take a hyper-literal approach to the Assembly?s recommendation, and (b) be prepared to make the positive argument that express regulation of abortion law does not belong in the Constitution. As the Committee on the 8th Amendment prepares to finish its first module?on matters of constitutional design?tomorrow, the preliminary answers to these questions should begin to become clear. |
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