Saturday, March 17, 2018

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Irish Abortion Referendum 2018 – Irish Feminism's Final Frontier

Barry Gilheany with the first in a series of articles on the campaign for the Repeal of the 8th Amendment.


Recent articles in TPQ on the proposal to remove the Eighth Amendment or Article 40.3.3 designed to, in perpetuity, to forestall any attempt to introduce liberalising abortion legislation in the Republic of Ireland, from the Irish Constitution have condemned it as an attack on “national self-determination” and defends the anti-abortion firewall of Article 40.3.3 as “based on a particular vision of the common good, which places a high value on personal freedom, while limiting the deliberate ending of innocent human life” [1]   

I aim in this piece to show that the Eighth Amendment does anything but protect national self-determination, the dignity of women or even unborn life. That in reality the removal of the Amendment and the promised accompanying legislation permitting elective abortion in the first trimester of pregnancy represents probably the final stage in the maturation of the Republic of Ireland as a sovereign and liberal democracy. Irony of ironies, the Republic could well end up with an abortion law aligned to the norm in Western Europe and one that is more liberal that that of the British Abortion Act of 1967 with its two doctor stipulation and where abortion is still criminalised under the 1861 Offences Against the Person Act (and certainly more liberal than that in Northern Ireland to where the 1967 Act was never extended and where abortion is a devolved matter for the moral majorities of the two tribes there. Truly Home Rule is no “longer Rome Rule!)

The proposed referendum this year (most likely at the end of May) to remove from Constitution of the Republic of Ireland the Eighth Amendment or Article 40.3.3 which bans abortion in the Republic and to replace it with a promise to introduce to introduce effective abortion-by-request in the first trimester (three month period) legislation may well represent the final denouement in the Republic's generation long political, legal and cultural conflict over abortion.

The draft heads of a Referendum Bill were passed at the weekly cabinet meeting on 20th February 2018 and a draft bill will decided at last week's Cabinet meeting where Minister of Health, Simon Harris, is presented a policy paper which will seek to repeal the second Irish statute (the first is the Offences Against the Person Act, 1861) dealing with abortion – the Protection of Life During Pregnancy Act, 2013 and replace it with new legislation.

The legislation will provide for terminations “without specific indications” (effectively abortion on demand) for up to 12 weeks or the first trimester of pregnancy. The legislation will also enable the provision of abortion pills in the first trimester in all medical settings, although it will be a GP-led service. In addition it is proposed that terminations will only be provided after 12 weeks where there is a “serious threat” to the life, physical health and mental health of the mother. In the case of the latter, the opinions of three medical professionals must be sought; where both health and life are at risk two must be consulted No gestational limits will be applied in these cases of in that of fatal foetal abnormality[2].

The proposed new law will decriminalise women who procure abortions but will impose criminal sanctions on medical professionals who carry out abortions outside this legislative framework.[3]

Thus Article 40.3.3 or the Eighth Amendment is to be entirely removed and replaced by a clause, the 36th Amendment, which stipulates that the Oireachtas (the Irish Parliament) may legislate to regulate termination of pregnancy.

To counter the spectres of the abortion “industry” looking for prospective “customers” in the manner of Big Tobacco seeking out new markets for its toxic products amongst children in the developing world which the pro-life/anti-choice conjures up as being behind the “pro-abortion” lobby, I aim to show that the removal of the Eighth Amendment from Bunreacht na hEireann and the proposed legislation to replace it can represent a genuine Irish solution to a sui generis Irish problem. I draw upon the works of the Irish feminist legal scholars Mairead Enwright, Fiona de Londras from Birmingham Law School and Ruth Fletcher from Keele University Centre for Law, Ethics and Society to show how a model of abortion law change in the Republic of Ireland can properly enshrine women's bodily integrity, agency and autonomy while also accommodating societal interest in the value of unborn life.

The model for future abortion law in Ireland developed by Enwright et al from Birmingham Law School came out of their work as the group of legal experts for the Commission for Repeal of the Eighth Amendment established by Labour Women in late 2014 has been proposed by Labour Women. In addition to this group of legal experts, this Commission also comprised a political group, a medical group Its stated aim was to … examine the best legal and political strategies to accomplish:

(1) Repeal of Article 40.3.3 of the Constitution in its entirety
(2) The introduction of detailed legislation providing for the circumstances in which abortion may legally take place; the Access to Abortion Bill, 2015

It should be noted that the following draft does not represent Labour Party policy whose Conference in February 2015 passed a motion proposing more limited changes. This model is designed with “women's lived experiences in mind”.[4]

The proposed model is guided by four principles:

First, that such a law would regulate abortion in Ireland by primary reference to the bodily integrity, welfare, agency, autonomy and self-determination of the pregnant woman while still recognising a public interest in preserving foetal life where possible and with the consent of the pregnant woman. Such legislation would differentiate in terms of time limit, for example, between abortions in differing circumstances in which abortion is permissible. Five are proposed: where there is a risk to health up to the end of the 12th week of pregnancy; where there is a risk of severe or disabling damage to health up to the end of the 24th week of pregnancy; where there is a risk to life, including suicide, no term limit. No term limits likewise in the cases of fatal foetal abnormality and emergency. In addition key Guiding Principles are inserted into the proposed law which would apply in the interpretation and application of the law which would reframe approach to abortion law[5]


These Guiding Principles would:

(1) Guarantee access to abortion services in accordance with the provisions of the Act

(2) Protect the rights of the pregnant woman to;

a. life;
b. freedom from torture, cruel, inhuman and degrading treatment;
c. bodily integrity and autonomy;
d. self-determination, including the right to informed decision-making in relation to medical treatment;
e. private and family life, including the right to privacy
f. health, including the right of access to appropriate health-care in a safe and prompt fashion, and the right of access to healthcare information.

(3) Access to abortion services will not be hindered due to race, sex, religion, national or social origin, disability, HIV status, marital or family status, immigration status, sexual orientation, age or other social status.

(4) The maintenance of embryonic and foetal life is an important social function, which should be voluntary and consensual.

In addition, the Bill would reinforce the importance of consent to all medical treatment and decriminalise abortion.[6]

Second, in challenging the mainstream consensus, this new Irish abortion law would not (I) provide for a separate rape ground in order to obviate the requirement of any woman to prove rape or to participate in any criminal law process; (ii) would provide for a simple health ground applicable in early pregnancy removing any requirement to prove severe or disabling threat to health . It would also remove the “fatal foetal anomaly” in current legislation. In simplifying health indications thus, the group feel that they are reflecting current European and national human rights law.[7]


Third, the proposed law seeks to replace “pronatalist paternalism” in Irish medical practice with a “welfare orientation” by which the pregnant woman is seen as the patient and abortion as a medical practice and which would enable medics to pursue the course of treatment they believe is suitable for their primary patient (i.e. the pregnant woman) and facilitate a genuinely equal doctor-patient relationship.[8]

Fourth, the proposed law while ensuring that abortion is actually as widely available as possible, respects the 'deeply held convictions of members of the medical profession and of the general public' regarding the status of the unborn. Medics refusing to participate in abortion on the basis of a “good faith” objection would be allowed to exercise such conscientious objection ( except when there is an immediate risk to the life or severe and disabling damage to the health to the woman) providing they inform and maker alternative arrangements for the patient. However health-care institutions may not invoke such objections and a duty would be placed on the Minister of Health to ensure that maintenance of a “safe and timely” service while accommodating conscientious objectors. The proposed law would establish a Review Tribunal of mixed representation of medics, practising lawyers and “other people” which would hear objections to adverse decisions “within strict deadlines” so that the pregnant woman can make representations. Finally to ensure access to abortion services for women, the law would prohibit harassing or intimidating behaviour” outside premises where abortion services are provided and provide an obligation to provide full information to women on their entitlements under the Act.[9]

A possible model for reconciling the women's right to bodily integrity is given by Ruth Fletcher in evidence to the Oireachtas on the Protection of Life during Pregnancy Bill, 2013. She argues that the “best ethical argument for legal recognition of the 'unborn' from its earliest stages is that it will, subject to assistance from the pregnant woman, become a person in the future. Since the future personhood argument does not apply to foetuses with lethal abnormalities, they should be excluded from legal definitions of the 'unborn'.[10]

A second pillar of a compelling state or societal interest in the protection of unborn life which does not negate women's bodily integrity lies on the potential of the embryo/foetus to become a person, not on actual personhood. The moral status that derives from this potentiality cannot be superior to the moral status that derives from sentience; i.e. the actual capacity to feel pain or pleasure nor can it equivocate to the higher moral status which accompanies personhood and the capacities for reason, will and communication. Based on this balancing of the values that accrue from potential person and actual personhood, Fletcher makes the following recommendations: that the unborn should be defined so as to exclude those foetuses which have lethal abnormalities and will not have a future independent life and that the unborn should be defined to mean “the foetus following the earliest moment at which sentience is possible.[11]

Critiquing the narrow margins of the 'risk to life' ground for abortion in the 2013 legislation because of the supposed requirement under Article 40.3.3 to treat the life of the pregnant woman as the same as the life of the embryo ; Fletcher argues for a full evaluation of the pregnant woman's interests as well as those of the unborn. Foetuses are the bearers of biological life and future persons, but this kind of lifer cannot be equated with that of breathing, feeling and comprehending women. Thus a legal test should be: “It is an offence to carry out a medical procedure, in the course of which or as a result of which unborn human life is ended, where there is a real and substantial threat to the life of the woman, including to her life interests in mental and bodily integrity” (Fletcher, 2013).

Fletcher defends conscientious objection provisions subject to the conditions that they must apply to individuals rather than organisations and only in circumstances where alternative provision is readily available. Conscientious objection is not an absolute interest as it is constrained by the need to prevent harm to others, pregnant women in this scenario, Finally, if conscientious objection to the provision of abortion is legally acceptable then so is a 'conscientious objection' to the sustenance of an embryo/foetus within one's body. Where an informed conscience tells a woman that termination of her pregnancy is the best moral resolution to dilemmas that have arisen in the course of this pregnancy, then that conscience is entitled to respect, recognition and legal accommodation.[12]

Finally, criminalisation of women who seek abortions does not achieve the constitutional aim of protecting foetal life. It has failed to prevent the hundreds of thousands of abortions that Irish women have sought outside Irish jurisdiction since the insertion of Article 40.3.3 into the Irish Constitution will not prevent any more. Criminalisation in stigmatising those with unwanted pregnancies and disabling their healthcare providers has worsened immeasurably the physical and psychological experience of unwanted pregnancy. Rather than criminalising women who seek abortion, Irish legislation could vindicate unborn life by investing in pregnancy-related care and research into miscarriage. Thus the legislature should either repeal Sections 58 and 59 of the Offences Against the Person Act 1861 (what better assertion of Irish independence and sovereignty from Victorian British rule!), without replacing it with a new offence. Or if it is not willing to follow the path of decriminalisation, it should at minimum define the offence to exclude attempts to cease a pregnancy and reduce significantly the maximum 14 years incarceration penalty as it punishes a decision which gives effect to the legitimate moral choices of women and their healthcare providers.[13]

Abortion law, as it stands in the Irish Republic is, from the point of view of women, is is very formulaic, totally medicalised and almost completely negates women's health needs, decision-making capacities and lived experiences. I have outlined the elements of a progressive abortion law in Ireland (and indeed elsewhere) One that makes the woman, as a rights bearer with agency, autonomy and bodily integrity, at the centre of decision-making but also one that, while refuting personhood arguments for foetal rights, also engages with the case for a compelling societal interest in the value of foetal life based on its potentiality.

To those that believe that unborn law is sacrosanct from the moment of conception, I say that no one on the pro-choice side of abortion divides seeks (or should seek) to criminalise the holding of such a viewpoint in the manner that those of use who do not believe, based on similarly sincerely held ethical convictions, that absolute personhood begins at the moment of conceptions and that no one on the pro-choice seeks to negate the personal autonomy of those with pro-life convictions either in body or mind in the way that generations of Irish women, North and South, and those who have dissented from dominant anti-choice cultures North and South. Feminists and humanists are not deaf to arguments about the value of unborn life.

The question I would put to those who wish to retain the Eighth Amendment is : how would the privileging of unborn life in its purely biological sense have prevented the endangerment of unborn life from a thalidomide scandal or the effects of a Bhopal or Agent Orange? How does it prevent the foetus from exposure to noxious substances like alcohol, tobacco, hard drugs and workplace or other environmental poisons that its mother may be ingesting.

These questions are particularly compelling now that the Supreme Court has found that Article 40.3.3 has ruled that the only right that the right has is to be born; it appears to have no rights to protection from the sorts of harm listed above.

Repeal The Eighth Amendment! Up The Republic!

References


[1] Dr Anne McCloskey “Republicanism, Sovereignty and The Right to Life" The Pensive Quill 13th February 2018.
[2] Irish Times, 21st February 2018.
[3] '' ''
[4] Mairead Enright, Vicky Conway, Fiona de Londras, Mary Donnelly, Ruth Fletcher, Natalie McDonnell, Sheelagh McGuinness, Claire Murray, Sinead Ring & Sorcha ui Chonnachtaigh Abortion Law Reform in Ireland: A Model for Change Feminists@law Vol 5, No 1 pp.1-8 (2015)
[5] Enright et al: p.5
[6] '' '' p.4
[7] '' '' p.4
[8] '' '' p.4
[9] '' '' p.5
[10] Dr Ruth Fletcher Opening Statement to the Health Committee on the General Scheme of the Protection of the Protection of Life During Pregnancy Bill, 2013 pp.1-5 http://oirechtas.ie/parliament/media/committees/healthandchildren/Dr-Ruth Fletcher, - Keele University.pdf
[11] Fletcher: p.2
[12] Fletcher: p.4
[13] Fletcher: p.5 


➽ Barry Gilheany is the author of a PhD thesis Post-Eighth Abortion Politics in the Republic of Ireland from Essex University, Department of Government. He is also the author of The Discursive Construction of Abortion in Georgina Waylen & Vicky Randall (Eds) Gender, The State and Politics Routledge, 1998. This is the first in a series of articles that he will be writing for TPQ in the course of the abortion referendum campaign in the Republic of Ireland. He is currently resident in Colchester, Essex.

14 comments :

AM said...

Barry,

welcome with the first piece for TPQ.

A piece that broadens the discussion and helps ensure that people know more rather than less.

While I oppose the perspective of Anne McCloskey, she has kick started the current discussion and we are grateful to her for having done so.

I was talking to a university professor during the week who is supporting Repeal. But he made the point that the result will be a close call: that RTE and the Irish Times understand Dublin very well they make little effort to do so in the rural communities. He feels abortion touches a different chord in Ireland to that of gay marriage or divorce; that many people who are not religious will oppose it.

Whatever way it goes, and I expect Repeal to win, we have a situation now where about 5000 Irish women travel abroad each year to have an abortion. We will likely still have 5000 continuing to travel abroad or having them at home. Nobody is going to refrain from having an abortion in the event of a win for the anti-Choice people.

Barry Gilheany said...

AM

Your last sentence is the most important and should be the unifying strapline for Repeal. The Eighth Amendment has not saved one single foetus as it never addressed the social and cultural reality of abortion in Ireland. Abortion policy is for legislators to deliberate and not to be the subject of abstract, culturally supremacist haloes in the Constitution.

Thanks for publishing my piece. I look forward to writing more.

Anonymous said...

'the anti-choice people' - if it wasnt such a serious topic, that would be funny. not happy calling us pro-life, we are now the awful anti-choice people. however, in a world where consumerism is the global religion, i actually take some pleasure in being labelled 'anti-choice'.
RTE = R.epeal T.he E.ighth
Irish Times = Oirish Times
Your statistic is wrong about 5,000 irish women travelling abroad each year to have an abortion. 10,000 irish people travel abroad, 5,000 come home.

"Nobody is going to refrain from having an abortion in the event of a win for the anti-Choice people. "

seriously, just think about that. are you saying if the anti-choicers (as u call us) lose, and the 8th is scrapped, that abortion statistics arent going to rise, and God forbid, rise to 1 in 5 like our neighbour? barry gilheany thinks this sentence should be the strapline for Repeal and goes on to talk about " culturally supremacist haloes " . im lost for words guys. as i said at the very beginning of this 'debate' weeks back - we have all the arguments (a very simple one too i may add) and u lot are left with nothing but outrageous propaganda and illogical nonsense and lawcourt gibberish mixed with a persistent refusal to acknowledge the child in all this. gilheany, you have come out saying that the 8th doesnt protect unborn life. what planet are u on? are u trying to get a job in north korean media? this canard is swiftly followed by the unfortunate sentence that repealing the 8th - "permitting elective abortion in the first trimester of pregnancy represents probably the final stage in the maturation of the Republic of Ireland as a sovereign and liberal democracy" - what an unfortunate choice of phrases - 'abortion in the first trimester' and 'final stage of maturation' - all in the one sentence. skincrawling abuse of the english language. you then go on to mention 'feminist legal scholars' (gee i wonder what their position is) who are all for 'women's bodily integrity, agency and autonomy ' while, at the same time, (are you ready folks, get ur orwell glasses on now) - 'while also accommodating societal interest in the value of unborn life.'

ffs, as i said, nothing but outrageous propaganda and illogical nonsense talk.

Anonymous said...

'The model for future abortion law in Ireland developed by Enwright et al from Birmingham Law School came out of their work as the group of legal experts for the Commission for Repeal of the Eighth Amendment established by Labour Women in late 2014 has been proposed by Labour Women. '
is that birmingham england, alabama or the moon? also - how brutally ironic that these women are called 'labour women'. i will say no more on that.

then we have - This model is designed with “women's lived experiences in mind”. - except for the depressed and dead by their own hand's experiences u can be sure. this wonderful group of lawyers, politicians and medics also believe - " that they are reflecting current European and national human rights law." can somebody show me current european and national human rights law? and when we're talking about human rights are we talking about George Soros idea of human rights or human rights which include the fundamental human right to life. i feel its the former.

"Third, the proposed law seeks to replace “pronatalist paternalism” in Irish medical practice with a “welfare orientation” by which the pregnant woman is seen as the patient and abortion as a medical practice and which would enable medics to pursue the course of treatment they believe is suitable for their primary patient (i.e. the pregnant woman) and facilitate a genuinely equal doctor-patient relationship."
jesus christ - its getting diabolical again, so the pregnant woman is seen as the patient and the baby doesnt exist anymore, is that right? what happened to the doctor caring for both. no no no, thats "pronatalist paternalism" and an abortion is "a course of treatment"(i wonder did the feminist lawyers from birmingham come up with that one) which must make way for "welfare orientation" (i hope u still have ur orwell glasses on).

this writers arguments go into evil overdrive in the paragraph beginning with "A second pillar of a compelling state or" - it stands on its own and needs no analysing. i will say though that this -"The moral status that derives from this potentiality cannot be superior to the moral status that derives from sentience; i.e. the actual capacity to feel pain or pleasure nor can it equivocate to the higher moral status which accompanies personhood and the capacities for reason, will and communication. " - is worthy of an entire conference on its own, a conference on the collapse of humanity and civilization that is. the child feels unimaginable pain mr gilheany, screams and puts up the fight of its little life against the instruments of mutilation and death. oh, but its u and the alabama lawyers who have the 'higher moral status' i presume.

sorry, but ive had enough of the nonsense. as i said, its all bollox talk disguised as ethics and law and morality and medical expertise. tragic. as for ur final question, it makes no sense and shows that, unsurprisingly, this is just another longwinded illogical nonsensical piece of word jugglery that says nothing but remains consistent in one thing only - its refusal to acknowledge the humanity of the unborn child.

Barry Gilheany said...

Grouch

You will be delighted to know that my next piece looks at international human rights jurisprudence on abortion and how it relates to the Eighth Amendment and subsequent case law.

AM said...

Barry,

that should be an informative piece. All of this broadens the debate and gives people more information.

Steve R said...

Women commentators = zero

AM said...

Steve,

the majority of articles in this tranche have been written by women. We don't always know the gender of the commenter but I suspect you are right.

Anonymous said...

the footage below was taken in ireland, this is not comely maidens dancing at the crossroads though, this is an irish sex worker (her title) whipping up the crowd at a repeal event. please note the uncomely maidens in the crowd at the end. as wb yeats might ask - was it for this the wild geese spread the grey wing on every tide? anyway, she makes as many points as barry's article.

https://www.youtube.com/watch?time_continue=1&v=un23nZRXVHg

also, here are some wonderfully articulate young irish ladies at the same event;

https://www.youtube.com/watch?v=U8G3JrPMpnU

pro-lifers are up against the corporate media/university/political brainwashing matrix and that is indisputable now when u listen to the young ladies above. as for the antifa lad at the end - the mind boggles. the above two clips are so tragic on so many different levels, im convinced that right now, as a people, the irish have hit rock bottom.

Anonymous said...

steve, how dare u discriminate against trannys, as if its all only about women, and non-binary people are affected by all this too, as is my friend who wants to be a horse. ur such a bigot steve.

Steve R said...

Grouch, I'm not a feminist and there are only two genders.

AM,

All this soul searching and procrastination over a law which mainly affects women, seems arrogant when it's conducted by us males!

Anonymous said...

steve, i was pulling ur leg.

Anonymous said...

Excellent article Barry .
I particularly liked the argument about "conscientious objectors in the medical profession".
Italy went through all these arguments in the early 1970s and doctors have the right to be conscientious objectors as long as the service is maintained in national health service hospitals.
Furthermore Italian law insists it is the woman's decision - the father cannot prevent her from having an abortion if she wants one.

Hope the law, as you proposed, goes through but would think about adding that point.

We need to keep reminding the pro-choice lobby that no woman will be forced or obliged to abort if she doesn't want to. By the same token no woman should be forced/obliged to continue with a pregnancy if, for whatever reason, she feels she cannot.

Final point - it's often a money thing . if the woman has the money to go to England or elsewhere in the EU - no problem. Poorer women suffer discrimination in this too!

AM said...

eurofree3,

it is an excellent article but so are the points you made in very concise fashion. The poor are most definitely discriminated against and that increases the likelihood of back street abortions.

Steve,
when men stop soul searching about women's rights an arrogant complacency sets in. Much like the heterosexual community should soul search about the gay community being denied rights.