Constitutional Prohibition

While most European countries liberalized their abortion laws in the 1970s and 1980s as a result of the struggles of the women’s movements, Ireland became on outlier, holding a referendum to introduce a constitutional ban on abortion in September 1983. The referendum involved asking the electorate to insert a so-called “pro-life” article into the Constitution – known as the eighth amendment – to copper-fastening the prohibition on abortion by equating, in legal terms at least, the life of a pregnant woman with that of a fetus. It reads: ‘The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right’. These 43 words clearly subordinates the life of a pregnant woman to that of the fetus, and renders abortion illegal in Ireland in all circumstances, except where abortion is deemed medically necessary in order to save the life (as distinct from the health) of the pregnant woman. In practice these 43 words mean that legally a fetus is an independent entity whose rights must be protected regardless of the risk to the life, health and well-being of the pregnant woman. These words have meant that young girls, who were raped and became suicidal as a result of their pregnancies where denied medical care and instead forced to endure a combative legal system where doctors, psychiatrists, barristers and judges debated there entitlements to excise control over their own bodies and decide what happened to them.

The campaign to have this so called “pro-life” amendment inserted into the Constitution, was until 2015’s campaign for Marriage Equality, the most successful single-issue movement in the history of the Irish State. The campaign emerged in the late 1970s and 1980s when a number of very small conservative Catholic groups, fearing that the growing support for more liberalization in Irish society could lead to abortion becoming legal in Ireland at some point in the future. They sought to enshrine Catholic teaching on abortion in the Constitution and thereby ensure a “backlash” against what they viewed as the increasing advance of a liberal social agenda. Following the introduction of equal pay legislation in Ireland, Irish conservatives began to argue that the EEC (now the European Union), was attempting to force a liberal social regime onto the country and that it would soon force Ireland to adopt an ‘abortion on demand’ regime. The decision by the US Supreme Court in Roe v Wade (1973), an extension of a 1965 US privacy ruling on the right to contraception, had a profound effect on conservative forces in Ireland. They began to fear that at some point a similar case would arise and that the Irish Supreme Court would decide that the right to privacy in marital affairs not only included a right to contraception (as the Irish Supreme Court ruled in the 1978 McGee case) but a right abortion as well. As far as the conservative elements of Ireland were concerned, what was needed was a provision in the constitution that was designed to ban abortion outright, and not leave it open to the Supreme Court to interpret a right to abortion. It was this fear that drove them to begin an intensified campaign to change the law that would have ramifications for thousands of women in Ireland.

The first call for a constitutional amendment appeared in a leaflet produced by a fundamentalist Catholic lay-group the Irish Family League, headed up by John O’Reilly, which specifically targeted the McGee ruling and saying that the matter of contraception was far too important to be left to the Supreme Court. O’Reilly went on to establish the Pro-Life Amendment Campaign (PLAC) campaign in January 1981. While the focus of PLAC was to ban abortion, as journalist Fintan O’Toole argued ‘for all of these groups, abortion was just one front in a wider religious war’: the real agenda was to roll back the tide of progressive social change. From the outset the ideology behind the campaign was much broader than just contraception and abortion. One of the first fronts the campaign organised on was opposition to the formation of a multi-denominational primary school in Dublin, arguing that it was fundamental challenge to the country’s Catholic-dominated education system. They also began campaigns against ‘immoral’ TV shows, family planning clinics and were vociferously opposed to the establishment of first Dublin Rape Crisis Centre. However, it quickly became clear that abortion was the most likely issue to maximize support for traditional values. After two and half years of fierce campaigning the eighth amendment was accepted in a national referendum by a majority of two to one. Emboldened by their victory, anti-abortion campaigners intensified their efforts and canvassed for prosecutions against organisations providing abortion advice or information such as Students Unions and the Well Woman clinics. Two years later they would once again successfully mobilize against attempts to introduce divorce into Ireland.

Oppression and abortion

Struggles over abortion have always reflected wider dynamics at play in Irish society. Conservative forces found by the end of 1980s that they were unable to hold back the tide of secularization. The collapse of Catholic hegemony which was long in the making found itself accelerated by the revelations around sexual abuse, the Magdalene laundries, religious institutions and the mother and baby homes. The blame for this painful, abusive aspect of Irish history cannot be solely located at the gates of the Catholic Church; rather it is intimately woven into the structure of the Irish State.

Support for the anti-abortion position has fallen significantly in recent years. There were two important turning points in this decline, both involving tragic cases where people were forced to confront the complexity of Irish abortion laws not as theoretical or abstract ethical questions but as restrictions on the rights and freedoms of women. The first was the 1992 X case which involved a 14 year old rape victim known only as Ms X. In February 1992, the parents of Ms X attempted to take her Britain for an abortion because their daughter, who had had been raped, said she would rather end her own life than continue the pregnancy to term. The response of the Irish State was to issue a High Court issue injunction preventing her from leaving the country.

When the story broke in the Irish media some days later, there was a public outcry. Thousands of people took to the streets to express their shock and anger at the treatment of X, as she became known. The girl’s parents lodged an appeal with the Supreme Court and the Court, under pressure from the mass protests that took place around the country, ruled that a woman has a right to abortion in Ireland if her life is at risk, including at risk by suicide. The consequence of that Supreme Court ruling meant that abortion would now be legal in Ireland, albeit in highly restrictive circumstances. The following November, hoping that anger over the X-Case had evaporated, the government, under pressure from the Catholic right, held a referendum hoping to roll back the X-Case judgment. They failed. The Irish people voted in favour of a maintaining the X-case judgment; they supported a constitutional amendment guaranteeing the right to travel abroad for an abortion; they supported the right to women having access to information on abortion (until 1995 it was illegal to even give someone the phone number of an abortion clinic in Britain or Europe). The X Case had changed public opinion about abortion in Ireland but, although the government vowed to legislate, political fear of the Catholic right remained. Seven successive governments failed to recognize the Supreme Court’s judgment with enabling legislation.

In 2012 the eighth amendment produced a further tragedy, directly contributing to the death of a young woman. Savita Halappanavar, an Indian woman living in Ireland, presented to University College Galway Hospital with a miscarriage. Following a medical examination the miscarriage was confirmed but doctors felt that due to presence of a fetal heartbeat they could not act, citing the eighth amendment. This delay proved fatal and she died of septicemia. The death of Savita Halappanavar again provoked a wave of national and international horror at Ireland’s punitive abortion regime. The government were forced to act and finally introduce “X-case” legislation – the Protection of Life During Pregnancy Act (PLDPA) 2013 permitting abortions where a woman’s life is at risk including the risk of suicide. But the presence of the eighth amendment in the constitution meant that even this new law was highly restrictive, requiring a panel of medical experts to assess claims of suicidality. It was also difficult to interpret, with the strong anti-abortion position enshrined in the constitution defining the medical landscape. In the summer of 2014 a young migrant woman, Ms Y, who was pregnant as a result of rape, became suicidal after being denied an abortion. Begging for a termination, the woman went on hunger strike but instead of acceding to her request, an order to force-feed her was obtained from the High Court and she was coerced into continuing her pregnancy until the fetus was viable. It was the death of Savita Halappanavar and the Ms Y case that would galvanize a whole new generation of “Repeal” activists determined to end the horror and hypocrisy of Ireland’s abortion laws.

These hypocrisies are probably best expressed in the 1992 referendum, which added a constitutional protection guaranteeing women the right to travel outside of the State to access abortion. This has facilitated a situation where it has become the norm for Irish abortions to occur in Britain—allowing the pro-life movement to claim for many years that Ireland was “abortion free,” which thousands of Irish women access terminations abroad. But too little attention is paid to the suppositions embodied in this so called right to travel. It presupposes that every woman has the financial means to travel and that every woman has the necessary documents to travel outside of the state. Many of cases that have ended up before the Irish courts have involved either poor and vulnerable young women or migrant women fleeing torture, poverty, and persecution and who have already been left to languish in Ireland’s notorious direct provision system. In other words Irish law facilitates unequal access to abortion dependent on the socio-economic circumstances of the pregnant woman. Better off women are constitutionally mandated to travel abroad and can avail of government supported counseling services on their return; women unable to travel abroad who terminate their pregnancies in Ireland, using for example the abortion pill, face a 14 year prison sentence and little or no professional support from a counsellor or doctor.

The struggle for abortion rights in Ireland, and around the world, raises fundamental questions about the type of society that we want to live in. In developing strategies to fight for abortion rights we need to consider what meaningful access to abortion would involve and look at the variety of intersecting issues – from class and migration to medicine and mental health – which shape women’s access to abortion. As Ireland prepares to vote on its abortion laws this summer, it is not only voting on access to a medical procedure but on the type of care and support society offers parents, children and families so that women can make meaningful choices about their lives.