Programme for Reforming Abortion Law Conference March 22 2013

Conference

Reforming Abortion Law: Comparative Perspectives

March 22nd 2013 (1.30pm – 5.30pm)

BHSC G_06

PROGRAMME

Registration 1 – 1.30pm

1.30pm Welcome (S. Mullally, Director of the Centre for Criminal Justice and Human Rights)

1.35pm Opening Remarks: The Hon. Mr. Justice Seán Ryan, Judge of the High Court (Chair)

Panel 1:

  • · 1.45 Professor Carol Sanger, Barbara Aronstein Black Professor of Law, Columbia University NY

‘About Abortion: Trying to Understand Abortion Regulation in the United States’

  • · 2.25 Prof Blanca Rodriguez Ruiz, University of Sevilla

Gender in constitutional discourses on abortion. Looking at Spain from a comparative

perspective’

  • · 3.00 Johanna Westeson, Centre for Reproductive Rights, NY

‘Abortion law and policy in Central and Eastern Europe. Recent trends and European human rights jurisprudence.’

3.25 – 3.45 Q+A

3.45-4.05 Break (Tea / Coffee)

Panel 2

  • · 4.10 Dr Ruth Fletcher, Keele University

‘’Abortion in the UK: Regulation and Resistance’

  • · 4.40 Dr Claire Murray, University College Cork

‘The narrative of the hysterical woman: the discourse on the inclusion of suicide in the Irish legislation on abortion’

  • · 5.00 Prof Siobhán Mullally, University College Cork

‘Reforming abortion law in Ireland; the limits of rights’

5.15 – 5.30 Q+A and Close

Conference convenors: Dr Claire Murray and Prof Siobhán Mullally, Law, UCC

BOOKING DETAILS:

Registration Fee: €40

Trainee Solicitors and Barristers €15

Students: €10

Online booking and fee payment available at: https://www.uccconferencing.ie/product/reforming-abortion-law-comparative-perspectives/

Registration Fee can also be paid at the event or preferably in advance by cheque payable to University College Cork Law Department (Send to: Noreen Delea, Dept of Law, University College Cork, Cork, Ireland)

Queries: Contact Noreen Delea at: ccjhr@ucc.ie

4 CPD Group Hours available

The venue is fully accessible. Please notify us of any specific accessibility requirements.

This event is supported by an Irish Research Council New Foundations Award and the Dean of Law Strategic Fund

 

The Price of Accountability by Dr Fiona Donson

Accountability is lost in the axing of the Mobility Allowance scheme

The decision by the Department of Health to close two disability schemes – the Mobility Allowance andMotorised Transport Grant – following sustained criticism of their operation by the Ombudsman raises some serious questions about the effective operation of accountability mechanisms concerning government departments; not least whether Government Departments are both willing and able to respond to structural criticisms.

The Department of Health closed the two mobility schemes on the 26th February 2013 to new applicants, and current recipients (4700: mobility allowance and 300: motorised transport grant) will lose their benefits on the 26th June 2013. No indication was given as to what would replace the schemes, not least because the Department has been unable to devise a lawful and effective mechanism within their apportioned budget of €10.6 million. In announcing the end of the schemes, Minister Kathleen Lynch T.D. stated that the Government had “agonised” over its decision, had found all alternatives to be illegal and thus had no choice but to end the schemes. The impression created is of a department striving to find a solution but being given no space by the law to fix the problem. However, the detailsof this saga reveal asomewhat different picture.

History of the illegality findings

The first formal finding of illegality in relation to these schemes came in 2011 with the launch of the Ombudsman Office report “Too Old to Be Equal”which found that Mobility Allowance scheme to be in breach of the Equal Status Act 2000 because the benefit was only available to those under 66 years old. This age restriction was not absolute, however, as those in receipt of Mobility Allowance before reaching the age of 66 continued to receive their allowance payments after that age. The report found that the Department of Health was aware of the illegality of the upper age limit, but that it had shown no “sense of urgency” to make the scheme compatible eleven years after the Equal Status Act had been passed. This despite having received similar warnings from the Equality Authority when it published a case report in 2008 relating to the Motorised Transport Grant following which the Department removed the upper age limit.

The Ombudsmanrecommended that the Department review the scheme and revise it to ensure compliance with equality legislation and that this be completed within a 6 month period. There was no recommendation as to how the scheme should be amended, but an emphasis that it should be compliant with the law.

In April 2011 the Department accepted the recommendation and agreed to carry out the review but then took no action. As a result the Ombudsman’s2011 Annual Reportstrongly condemned the Department’s failure:

“In my original Investigation Report I observed that the apparent inability of the department to deal with issues, such as the inclusion of an illegal condition in the Mobility Allowance Scheme, leaves it open ‘to the perception that it is unconcerned with the fact that it is operating a scheme which is at odds both with the law of the land and with human rights law more generally.’ More than a year later, the Department had not shown that this perception is unwarranted.”

One might assume that such strong criticism in a report from the Ombudsman would prompt a reaction, yet the Department continued to prevaricate with the result that a follow-up reportwas published in 2012 under section 6(5) of theOmbudsman Act 1980.

At this point the department statedthat it was in fact unable to act on the advice because it “would create liabilities the State could not afford”. The Office of the Ombudsman rejected that approach criticizing the

“attempt of the Department to represent its position as a common sense response to an unfortunate situation in which, in order to target limited resources effectively, it is necessary to infringe on the law. There are options to be considered on how best to use scarce resources. Breaking the law is not one of those options.”

The continuing violation of the law, and resultant complaints to both the Ombudsman and the Equality Tribunal, were in fact creatingliabilities to individuals who had been discriminated against by the illegal system. We do not have a figure as to how much the department paid in settling these liabilities but the “Too Old to Be Equal” report prompted a payment of €6000 to the family of the deceased original complainant in 2011.

The Department of Health’s response and accountability principles

The position of the Department of Health, in relation to this investigation,clearly conflicts withfundamentalaccountability principles.

  1. Integrity and trust – the public should be able to trust the state to act with integrity in areas of complexity particularly against a background of scarce resources. Unfortunately, the Department of Health has consistently failed to engender trust in its actions in this area. For example, representatives of the Department, including Minister of Health Reilly, gave evidence before the Joint Oireachtas Committee on Public Service, Oversight and Petitions on February 6th 2013. The hearing considered the operation of the schemes and discussed options, but at no point during the hearing did Department ofHealth officials indicate that the schemes were likely to be abandoned within three weeks of the hearing. The Minister announced the appointment of an external expert to review the transport needs of people with disabilities and Minister Lynch commented that “The comprehensive review required will be considered and if that can be done in a shorter period than six months we will be very happy. We need to emphasise again than this should not be an exercise that will drive fear into people.” That review has now developed into a “project group”designed to examine the schemes and recommend a solution, howeverthe likelihood of it agreeing on, andthen implementing such a solution within four months is improbable given the failure of the department to find a workable solution since 2011. It is in fact unclear as to whether the Department thinks that a solution is possible, if it is then one must question why they scrapped the schemes in advance of announcing its replacement. A more cynical view might be that they have concluded there is no acceptable solution, whether on cost or legal grounds, and that the project group is a way of legitimising the final termination of mobility supports.
  2. Honesty and transparency – State agencies should act in an open and honest way; if there was a danger that the Mobility Allowance Scheme was to be abolished or altered people affected should have been given the necessary information. However, as noted above, there was no warning. The statement by Minister Lynch in the Dáil that this “has not come as a bolt out of the blue for anyone” is therefore somewhat disingenuous– it was certainly known that something had to be done, but not that the Department would leave vulnerable people unsupported. Indeed, the Disability Federation of Ireland stated on RTÉs Morning Irelandthe morning after the announcement that the closure of the schemes had come “out of the blue” and that there had been no consultation with disability groups. The failure to consult and the high handed nature of the decision to cancel the schemes therefore casts doubt on the limited guarantees made as to future support in this area. The department’sstatementthat the decision was not a cut and that €10.6 million remained “committed to meeting the transport needs of relevant people” is a hollow commitment when it is placed alongside the Minister Lynch’s reassurance thata “full Government approach” examing how to introduce a universally accessible transport system was being carried out. That suggests a shift away from disability benefits moving the money to transport.
  3. Fundamental human rights norms – the apparent willingness of the Department of Health to override the fundamental principle of equality because of cost concerns appears to indicate, as the Ombudsman stated in her follow up report, that “it has a very weak sense of the importance of supporting human rights principles and, indeed, a very weak sense of the rule of law and of its obligation to act in accordance with the law.”The problem is that equality here, according to the department, would cost the state somewhere between €170million and €300 million. The cost of cutting the scheme completely and making everyone equally immobile is attractive on paper, though the knock on costs of the loss of access to jobs, family and community for those affected is unquantifiable in financial terms.

Accountability failures

The accountability context of this decision of Department of Health is extremely illuminating as regards the government’s overall attitude to the rule of law and the need to respect our mechanisms of accountability. In October 2012, the Government announced the expansion of the jurisdiction of the Ombudsman and finally steered through the long awaited Ombudsman (Amendment) Act 2012. This process involved a clear political endorsement of the Ombudsman as a key champion of the people. Yet at the same time, a major State Department was failing in its responsibility to follow her recommendations and bring an important disability scheme into line with the law. The Ombudsman used that moment, in an example of “the mobilisation of shame” to launch the follow-up report on “Too Old to be Equal”. However, it appears that the impact of both that report and the later hearings before the Joint Oireachtas Committee in February 2013 was to prompt the Department into what appears to be an impetuous decision of cancellation rather than to encourage a thoughtful response that would bring it in line with the rule of law and wider accountability and human rights principles.

The behaviour of the department over the last three years has therefore embodied the attitudes of resistance and unresponsiveness which undermine Government statements claiming that the Office of the Ombudsman, and an expansion of its remit, is essential for “ensuring that fair treatment is always provided” to the public and to achieving improved accountability in public bodies. There is clearly a tension in government between the acceptance of the need for an institution such as the Ombudsman and the rejection of its findings on the ground in situations, such as the mobility allowance, where those findings challengeestablished administrative practice or make life inconvenient for government.

For its part, the Office of the Ombudsman has maintained the moral high ground in this dispute. It might be criticised for failing to offer, from the start, any solutions to the breach of equality, though it would argue that it is not in a position to provide policy answers. By not engaging with the detail in the aftermath of its report, but focusing on the accountability framework it has maintained a consistently detached position from the rather murky political fray. Yet at the same time, has become a thorn in the side of the Department of Health, to such an extent that there is a clear problem in the relationship between the two as identified by the Joint Oireachtas Committee earlier this year.

As to solutions, it may be that the most obvious is one that maintains the discrimination, something the Ombudsman would have been reluctant to recommend. As Mel Cousins has argued, placing of the scheme on a statutory footing might have been sufficient to avoid a finding of illegality. And this point is important – the mobility allowance scheme, like so much of our government, operated with no statutory foundation and on the basis of unpublished guidelines. Whilst this was perhaps once normal, it is no longer acceptable to ignore accepted principles ofaccountability and the rule of law by allowing such administrative mechanisms to operate without transparency, openness and apparent fairness.

Caesarean Section Refusal in Ireland: Ireland’s Fragmented Case Law by Katherine Wade*

On Sunday, 10th March 2013, it was reported that Waterford Regional Hospital made an emergency application to carry out a caesarean section on a woman who refused the intervention, as she wanted the baby to be born naturally(Reilly, “Hospital Sought Court Order to Force Mother to Have C-Section, Irish Independent, 10, March 2013). The woman was 13 days overdue. The Court was told that the baby could die or have severe brain damage and the mother would be at serious risk of haemorrhage if the procedure were not carried out. It was later reported that when the case was called, the woman reconsidered and consented to the procedure. This is the second instance in which a caesarean section refusal has been reported in the media in Ireland. In 2010, it was reported that a woman refused a caesarean section in order to await a High Court ruling about whether her baby should be administered treatment for HIV on its birth, to which she refused consent.

The law is particularly unclear in the context of caesarean section refusal in this jurisdiction. In this context, two fundamental constitutional rights come into stark contrast with one another, namely, the right to autonomy of the woman and the right to life of the unborn. The issue of the balancing of these rights in the context of a treatment refusal by a woman has not been addressed to date in Irish case law. The balancing of these rights has developed in the context of abortion, and there has been little discussion in the case law about the interaction of these rights in other instances which involve a threat to the life or wellbeing of the foetus, such as maternal drug use or caesarean section refusal.

It is clear that there is right to refuse treatment in Irish law. This was held to be part of the right to autonomy in Re a Ward of Court [1996] 2 I.R. 79. The right to life of the unborn is contained in Article 40.3.3°, which states:

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.

The first thing to note is that Article 40.3.3° is not a constitutional provision about abortion. It is a general provision relating to the requirement on the State to protect the right to life of the unborn. Therefore, it would be centrally relevant in caesarean section refusal cases, where the refusal causes a risk to the life of the unborn child.  However, as noted the main focus in relation to this constitutional provision has been on the issue of abortion. Attorney General v X[1992] 1 I.R. 1is the seminal case in relation to this constitutional provision. It held that an abortion is permissible

[I]f it can be established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible.

It was also held that a risk to a woman’s life caused by the threat of suicide satisfies the test laid down in X. In the context of abortion, the right to life of the unborn can only be subordinated to the right to autonomy of the woman, if there is a real and substantial risk to her life. A core problem with this is that the meaning of “real and substantial risk” is unclear. For example, it is unknown where the line should be drawn between life and health in these circumstances. The question which arises in the caesarean section context is whether a woman can refuse a caesarean section on the grounds that it will cause a reduction in her quality of life. This happened in England and Wales, in Rochdale Healthcare (NHS) Trust v C[1997] 1 FCR 274, wherein a woman refused a caesarean section due to back pain and painful scars suffered from a previous caesarean section. The other issue relates to the level of risk which must be posed to the life of the unborn to mandate State intervention to protect its right to life. It is unclear, for instance, if the State must intervene in a situation where the unborn is at risk of being born with a disability as a result of the refusal, which was a reported risk in the current case.

One case which can give some guidance in this regard is G. v. An BordUchtála[1980] I.R. 32 wherein Walsh J. stated that the right to life of the child, having been borninvolves the right to be reared and educated, the right to liberty, work, rest and recreation and the right to maintain that life at a proper human standard in matters of food, clothing and habitation.  This case refers to the right of the child “having been born”. The meaning and scope of the right to life of the child before it is unborn remains unclear. However, it could be argued that since the born child has the right to liberty and recreation etc., it has the right to be born in the healthiest state possible in order to realise these rights. This might mean that measures which could reduce its risk of developing brain damage, for example, such as an enforced caesarean section, should be carried out if necessary. As Sherlock (1989) notes, G v An BordUchtála seems to suggest that the right to life of the child entails more than just the right to be born and involves a certain quality of life. However, she also argues that since the right to life of the foetus and woman are equal, it may be assumed that the woman’s right to life also includes these rights. Thus, this might mean that if a caesarean section were to lead to a reduction in her health or quality of life, the refusal could be constitutionally permissible.

In relation to guidance on the specific issue of caesarean section refusal in Ireland, not much can be gleaned from the case law. It is clear that if the woman refuses the intervention and is found to lack capacity to make this decision, a decision will be made on the basis of her best interests. This is line with the Supreme Court judgment in Fitzpatrick and Another v. K and Another [2008]. However, the possible approach of the Irish courts in relation to a competent woman’s refusal to consent to a caesarean section is difficult to assess. In this situation, the rights of the woman and the unborn would have to be balanced against each other. The only available information about how the courts have approached this issue in the past comes from media reports of two cases. For example, the 2002 case ofSouth Western Health Board v K and Anor[2002] I.E.H.C 104indicated that a woman’s autonomy could be subordinated to the rights of the unborn. In this case, a woman refused to undergo treatment which would reduce the risk of transmitting HIV to her foetus. Although this does not relate to caesarean section refusal, one aspect of the case is relevant. Finnegan P. advised her that if she refused to give birth in a hospital he would have to make “much more serious orders affecting her bodily integrity” (Irish Times, 20 July 2001). However, as Casey (2002) notes, since further details are not available,it is unknown whether such orders could mean forced confinement, twenty-four hour supervision or the forced administration of medicine. It could be argued that while the latter interventions come within the scope of “practicable” measures, as permitted under the Constitution, a caesarean section is not “practicable”, due to the invasiveness of the procedure.

In contrast,in the unreported case of Health Service Executive v F, (High Court, ex tempore, Birmingham J., November 20, 2010) a different approach appeared to have been taken.  In this case, the HSE secured a High Court order allowing a doctor to administer certain drugs to the baby of a pregnant woman upon birth with the view of reducing the risk of transmission of HIV. The woman declined to consent to this treatment. She also refused a caesarean section on the day that was medically advised, but agreed to have it four days later. In the interim she wanted the court to determine whether it was in the child’s best interests to be treated with the drugs.It was reported that ‘Justice George Birmingham had earlier stated that she could not be forced to have a caesarean section and said no order could be made requiring her to undergo such a procedure’ (Mooney, ‘Court: Baby Must Have HIV Drugs’, Sunday Times, 21 November 2010, 8). However, since no further details on the case are available, it is unknown how such a conclusion was reached and how the constitutional rights of the woman and the unborn are to be balanced in a case of caesarean section refusal.

 

The current case gives little added guidance in this area. It was reported that “Judge John Hedigan said that if it is not necessary, then it is appropriate that no court order is made”. This could mean that if it had become necessary to carry out the caesarean section, the Court would have made an order for its enforcement. On the other hand, it may be a general statement that unless it becomes completely necessary, it is inappropriate for the Court to make any order in this regard. It is hoped that a reported judgment might become available in order to ascertain whether the Court dealt with the issue of the interaction of the right to life of the unborn and right to autonomy of the woman in any detail. In the two cases involving caesarean section refusal, the woman eventually relented and agreed to the procedure. Therefore, the Court has not had to engage in an in-depth analysis of the scope, meaning and interaction of the constitutional rights at issue. An analysis of article 40.3.3° in the Courts and in the literature has been, to date, confined to the area of abortion. Its meaning and scope in the context of a competent woman’s refusal to consent to a caesarean section remains to be seen.

 

*Katherine Wade, PhD Candidate, University College Cork, Department of Chidlren and Youth Affairs Research Scholar.

Citations:

A. Sherlock, “The Right to Life of the Unborn and the Irish Constitution” (1989) 24(1) Ir. Jur. 13.

G. Casey, “Pregnant Woman and Unborn Child: Legal Adversaries” (2002) 8(2) M.L.J.I. 75.

 

 This has been cross-posted from www.humanrights.ie

 

 

Submission to the Joint Oireachtas Committee on legislating for abortion by Dr Claire Murray

Submission to the Joint Oireachtas Committee on Health and Children on Legislation to Give Effect to the Constitutional Right to Access an Abortion in limited circumstances

11th January 2013

Dr. Claire Murray, Lecturer in Law, University College Cork

 

  1. 1.     Constitutional Position

Article 40.3.3 provides that “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.”

The right to life of the unborn is protected under Irish constitutional law, but it is not an absolute right, and must be balanced with the equal right to life of the mother. In Attorney General v X[1] (the X case) the Supreme Court, when interpreting Article 40.3.3, established that there is a right to a lawful abortion in Ireland in very limited circumstances i.e. where, as a matter of probability, there is a real and substantial risk to the life of the mother, including a risk to life through suicide, and that risk can only be removed through the termination of the pregnancy. The risk does not have to be immediate. In any circumstances outside that narrow situation e.g. where the health or well-being of the mother is at risk, there is currently no legal provision for an abortion in this jurisdiction. Therefore, if an abortion was carried out in circumstances which were subsequently found not to come within the test set out in the X case there is a risk, however small, of criminal sanctions for both the woman and anyone who assisted her.[2]

In two subsequent referenda, in 1992 (proposed 12th Amendment) and in 2002 (proposed 25th Amendment) the people voted to reject proposals to remove the threat of suicide from the grounds for lawful abortion, which would have restricted the decision of the Supreme Court in the X case. The possibility of broadening the grounds on which abortion is lawful in Ireland has never been put to the people by way of referendum. Therefore it is settled law that it is lawful for a woman to access an abortion in this jurisdiction where it can be established as a matter of probability that there is a real and substantial risk to her life, as distinct from her health, which can only be avoided by the termination of her pregnancy. The difficulty is that there is no legal guidance available as to how to give effect to this right. This was the core issue in A, B, and C v Ireland.

  1. 2.     The decision of the European Court of Human Rights in A, B and C v Ireland[3] and the Government decision to legislate

The ECtHR found that the State’s failure to provide a framework to give effect to constitutionally permitted abortions was a breach of C’s right to private and family life. Under Article 8, the State has a positive obligation to provide effective and accessible means of protecting the right to respect for private life. The ECtHR concluded that the uncertainty around the implementation of Article 40.3.3 had resulted in “a striking discordance between the theoretical right to a lawful abortion in Ireland on grounds of a relevant risk to a woman’s life and the reality of its practical implementation.”

The ECtHR was quite clear in stating that there is no right to an abortion under the ECHR. A majority of the Court ruled that it was within the margin of appreciation afforded to the State the extent to which, if any, it allowed for abortions within the State.[4] However, the ECtHR found that because Ireland had allowed for legal abortions within a very narrow set of circumstances i.e. within the terms of the X case, and therefore women already had a constitutional right to access abortions in Ireland where they satisfied the threshold, the State had an obligation to ensure that this right was an effective one in practice.

The decision of the ECtHR did not change the legal position on abortion in Ireland. It has not extended the circumstances in which an abortion in permissible. It merely requires us, as a State, to ensure that the rights we afford our citizens are real rather than illusory.

Following the Report of the Expert Group on the Judgment in A, B, and C v Ireland the Government has committed to introducing legislation, supported by regulations, to provide a clear framework for accessing abortions in this jurisdiction within the narrow constitutional grounds. This option was described by the Expert Group as being “constitutionally, legally and procedurally sound.”[5]

  1. 3.     Core issues for consideration in legislating for abortion in Ireland

 

  •  Repeal of sections 58 and 59 of the Offences Against the Person Act 1861

The ECtHR observed in the A, B and C case that the criminal provisions of the 1861 Act constitute a significant chilling factor for both women and doctors in the medical consultation process, regardless of whether or not prosecutions have in fact been made. The need to address this issue was further highlighted by the UN Special Rapporteur on the Right to Health who stated on his visit to Ireland in December 2012 that “criminal laws and other legal restrictions disempower women, who may be deterred from taking steps to protect their health, in order to avoid liability and out of fear of stigmatization.” While it may be considered necessary to guard against unlawful abortion in the jurisdiction it is not necessary to do so by means of an extremely outdated provision of the criminal law.

  • Procedure for determining when the constitutional test is satisfied

The question of when there is a risk to the life of the mother is a clinical decision. The purpose of the legislation is to set out a clear procedure within which these clinical decisions can be made. It is important that the procedure included in the legislation is not too burdensome. This is a medical procedure and should not become too adversarial or too bureaucratic. It is also vital that the clinical decisions are made in a timely manner to enable women to make appropriate healthcare choices. The recommendation by the Expert Group that two doctors be involved in the process is sensible.[6] It is crucial that a formal review process be established for circumstances where there is a disagreement between the woman and the medical professionals involved or between doctors. The review body should be independent, competent to review the reasons for the decision and the relevant evidence, there should be a possibility for the woman to heard, the body should issue written reasons for its decision, and the decisions must be timely.[7]

  • The risk of suicide

A threat to the life of the mother, including by reason of a threat of suicide, is part of the test set down by the Supreme Court in the X case. It is therefore settled law and must be included in the statutory provisions relating to abortion. As noted above the Irish people have twice rejected the possibility of removing the risk of suicide from the test. It is deeply disrespectful towards women to suggest that including a provision to this effect in the legislation will result in women fabricating suicidal ideation in order to obtain an abortion in this jurisdiction. This suggestion also contributes to further stigmatisation of persons with mental health difficulties.  There is no justification for including in the statutory scheme a different procedure to determine if there is a real and substantial threat to the life of the mother where that threat arises as a result of suicidal ideation, particularly where the suggestion appears to be that the threshold would be higher in these circumstances because of the risk of fraud. To do so would be unjustifiably discriminatory.

 

  1. 4.     Beyond legislation for X

Any legislation introduced cannot go beyond what is currently constitutionally permissible. Therefore legislation in accordance with the decision of the Supreme Court in the X case will not allow for access to abortion in circumstances where the health of the woman is at risk or where the pregnancy is the result of a rape. However, a recent opinion poll suggested that 82% of the electorate would support the availability of abortion in these circumstances.[8] It is also not yet clear whether the current constitutional position includes cases of fatal foetal abnormalities, given that the life of the mother is not at risk in these circumstances, and the courts have not yet interpreted how the right to life of the unborn applies in such a difficult and traumatic situation. The result is that many women travel abroad to access abortions in these circumstances. Introducing legislation to give effect to the decision in the X case will not address these issues and therefore a mature debate on how the State will meet the needs of these women is required.  Broadening the grounds on which abortion is available in Ireland would require the repeal, by way of referendum, of the 8th Amendment to the Constitution.

Author Profile: This submission is made by Dr. Claire Murray, Lecturer in the Department and Faculty of Law, University College Cork. Dr. Murray is a graduate of UCC (BCL, PGCTLHE, PGDTLHE, PhD) and Kings Inns (BL). She researches in the areas of mental health law, feminist theories of rights and family law. She lectures in welfare law, family law and tort law and is a coordinator of the Gender, Law and Sexuality research initiative within the Law Department in UCC. Dr. Murray holds a pro-choice position on abortion.  


[1] [1992] 2 IR 1.

[2] Section 58 of the Offences Against the Person Act 1861 criminalises abortion and states that a person who procures a miscarriage “shall be guilty of a felony, and being convicted thereof shall be liable to be kept in penal servitude for life.” Section 59 further provides that anyone who assists in procuring a miscarriage through the provision of drugs or instruments shall be guilty of a misdemeanour.

 

[3] [2010] ECHR 2032.

[4] The margin of appreciation allows States to interfere with rights to the degree to which it is necessary and proportionate in a democratic society.

[5] Report of the Expert Group, page 49.

[6] Expert Group Report, page 32.

[7] Expert Group Report, page 38.

[8] Sunday Business Post/Red C opinion poll published on December 2nd 2012.