The gov­ern­ment ef­fec­tively con­ceded the prin­ci­ple of law­ful ter­mi­na­tion for fa­tal foetal ab­nor­mal­ity preg­nan­cies whilst ig­nor­ing the plight of women who ex­pe­ri­enced them

Irish Independent - Weekend Review - - FRONT PAGE - GLAR­ING CON­TRA­DIC­TION

Abor­tion is a com­plex and dif­fi­cult is­sue. It has al­ways been thus. But re­gard­less of whether the elec­torate votes to re­move Ar­ti­cle 40.3.3 from the Con­sti­tu­tion or whether cit­i­zens elect to re­tain the peren­ni­ally di­vi­sive Eighth Amend­ment, the is­sue will never truly go away. Let me ex­plain why. The 1983 ref­er­en­dum that in­tro­duced a con­sti­tu­tional ban on abor­tion was passed by 67pc of vot­ers.

But the seeds of the amend­ment’s downfall were con­tained in its am­bigu­ous word­ing which obliges the State to give due re­gard to the equal rights to the ex­pec­tant mother and her un­born as far as prac­ti­ca­ble.

This ig­nored the ob­vi­ous fact that where rights col­lide, a hi­er­ar­chy will pre­vail.

The Eighth Amend­ment is and was re­sound­ingly silent as to when hu­man life should be deemed to be­gin for the pur­poses of en­joy­ing le­gal pro­tec­tion.

The word un­born was it­self a new term, prompt­ing many to warn of the dan­gers of giv­ing con­sti­tu­tional pro­tec­tion to the un­born with­out clar­i­fy­ing its mean­ing and ef­fect.

The late Peter Suther­land, then At­tor­ney Gen­eral, warned the gov­ern­ment that the pro­vi­sion was a “time bomb” wait­ing to hap­pen, one which set up the in­evitable con­tests we have wit­nessed for the last 35 years.

The X case, in­volv­ing the plight of a sui­ci­dal 14-year-old girl preg­nant as the re­sult of a rape, was the first test of the Eighth.

It led to a Supreme Court rul­ing that where there is a real and sub­stan­tial risk to the life, as dis­tinct from the health of the mother, in­clud­ing the risk of sui­cide, then abor­tion is law­ful in Ire­land.

The rul­ing ap­palled the pro-life move­ment which did not want any ex­cep­tion, es­pe­cially a men­tal health one, be­ing carved out of the new con­sti­tu­tional pro­vi­sion.

In the X case, the late Supreme Court judge Mr Jus­tice Niall McCarthy be­rated the gov­ern­ment for its “in­ex­cus­able fail­ure” to in­tro­duce ap­pro­pri­ate abor­tion laws.

It would take un­til 2013, 30 years af­ter the 1983 poll, be­fore a flawed law pur­port­ing to give ef­fect to the X case was passed.

In 1992, a ref­er­en­dum was held to re­move the new sui­cide clause.

But the elec­torate, which sup­ported a near com­plete ban on abor­tion in 1983, re­fused to do so. On the same day, the Ir­ish pub­lic ap­proved the right of women to travel out­side of the coun­try for abor­tion and ac­cess in­for­ma­tion about law­ful abor­tion ser­vices out­side of the State.

In do­ing so, the Ir­ish pub­lic em­bed­ded a glar­ing con­tra­dic­tion into the Con­sti­tu­tion, sanc­tion­ing abor­tion by grant­ing in­for­ma­tion and over­seas travel rights — and grant­ing lim­ited abor­tion rights for sui­ci­dal women and girls at home — but ban­ning the pro­ce­dure here.

By the late 1990s, the pub­lic was ag­i­tated by other matters which ur­gently called for le­gal clar­ity of the sta­tus of the un­born.

This was against the back­ground of then rapid de­vel­op­ments in as­sisted hu­man re­pro­duc­tion (AHR) tech­nolo­gies in­clud­ing IVF and sur­ro­gacy which to this day are un­reg­u­lated in Ire­land.

In 1996, the Con­sti­tu­tion Re­view Group called for laws to reg­u­late the pro­vi­sion of abor­tion in line with X and to in­clude matters such as the def­i­ni­tion of the un­born, ap­pro­pri­ate le­gal pro­tec­tion for doc­tors, time lim­its and cer­ti­fi­ca­tion for when there was a real and sub­stan­tial risk to life of women.

The CRG said laws were needed to as­cer­tain whether the Eighth had an im­pact on AHR tech­nolo­gies. Their plea was ig­nored.

In 2002, the Fianna Fáil/PD gov­ern­ment held an­other ref­er­en­dum to re­move the sui­cide clause and pro­vide a def­i­ni­tion of the un­born that made it clear that Ar­ti­cle 40.3.3 did not pro­tect em­bryos out­side of the womb.

Once again the elec­torate re­fused to re­move the sui­cide ex­cep­tion and, with that de­ci­sion, the pro­posed statu­tory def­i­ni­tion of the un­born fell too.

In 2005, the Com­mis­sion on As­sisted Hu­man Re­pro­duc­tion pro­duced a re­port which once again pointed to the lack of clar­ity sur­round­ing the mean­ing of the word un­born amid in­creased pub­lic con­cerns about the lack of reg­u­la­tion of as­sisted re­pro­duc­tion clin­ics. No leg­is­la­tion was forth­com­ing. It is ironic that the Ir­ish pub­lic was bounced, in many re­spects, into cre­at­ing a con­sti­tu­tional ban on abor­tion amid con­cerns a run­away ju­di­ciary would use con­sti­tu­tional rights, in­clud­ing pri­vacy, as a Tro­jan horse to in­tro­duce a lib­eral abor­tion regime.

The op­po­site pre­vailed: law­mak­ers de­volved all re­spon­si­bil­ity for the Eighth Amend­ment to the ju­di­cial arm of gov­ern­ment.

It would be im­pos­si­ble to re­hearse the al­pha­bet soup of le­gal ac­tions, in­clud­ing the frozen em­bryo case, gen­er­ated by the Eighth and the re­fusal of politi­cians to leg­is­late for it.

But a few bear men­tion as they point to the in­evitabil­ity of fu­ture con­flicts as past ones.

One is a case that is sig­nif­i­cant not be­cause it reached the Euro­pean Court of Hu­man Rights, but pre­cisely be­cause it did not.

The D case in­volved a woman whose preg­nancy had re­sulted in a di­ag­no­sis of fa­tal foetal ab­nor­mal­ity who trav­elled abroad for a ter­mi­na­tion.

The case was not ad­mit­ted to the Court of Hu­man Rights be­cause the Ir­ish gov­ern­ment ar­gued that it was “an open ques­tion” in Ir­ish law as to whether the Eighth would per­mit a law­ful abor­tion if, in ex­cep­tional cases like Miss D’s, it could be es­tab­lished that there was no re­al­is­tic prospect of the foe­tus be­ing born alive.

The Euro­pean court agreed with the gov­ern­ment that there was at least a ten­able ar­gu­ment that the bal­ance between the con­sti­tu­tion­ally en­shrined rights to life of mother and un­born could shift in favour of the mother where the un­born suf­fered from an ab­nor­mal­ity in­com­pat­i­ble with life.

In de­feat­ing Miss D’s ap­pli­ca­tion to bring her case to Stras­bourg, the gov­ern­ment ef­fec­tively con­ceded the prin­ci­ple of law­ful ter­mi­na­tion for fa­tal foetal ab­nor­mal­ity preg­nan­cies whilst ig­nor­ing the plight of women who ex­pe­ri­enced them.

Af­ter Fine Gael and Labour swept to power in 2011, an Ex­pert Group was es­tab­lished to set up a le­gal frame­work to give ef­fect to the now 20-year-old X case, fol­low­ing a trio of cases that fell be­fore the ECtHR in 2009 known as A,B and C.

But weeks be­fore the Ex­pert Group re­ported in 2012, Ire­land was con­vulsed by the death of Savita Halap­panavar, a wa­ter­shed mo­ment in Ire­land’s abor­tion his­tory. We know that a com­bi­na­tion of fac­tors led to this tragic ma­ter­nal death. What we can’t ig­nore is a clear find­ing by an in­de­pen­dent in­quiry that a lack of le­gal and clin­i­cal guid­ance was a ma­jor fac­tor.

The gov­ern­ment in the ear­lier A, B and C case said that where there is a risk to a mother’s life, there is a “clear and bright blue line” provided by Ir­ish law that is nei­ther dif­fi­cult to un­der­stand nor ap­ply. But that has been com­pre­hen­sively dis­missed by the vast bulk of medics who say that the Eighth has a chilling im­pact on their prac­tice.

In De­cem­ber 2014, 20 lawyers mused for sev­eral days in the High Court about the fate of a foe­tus whose heart was still beat­ing in­side its dead mother.

A con­sul­tant neu­rol­o­gist who treated the woman at the hospi­tal where she was pro­nounced dead sought le­gal ad­vice, but none was forth­com­ing. So he and two col­leagues found them­selves in a room try­ing to fig­ure out Ar­ti­cle 40.3.3.

Few peo­ple in 1983 could have en­vis­aged a time when dead women could serve as ca­dav­eric in­cu­ba­tors, where the en­tire hu­man genome could be se­quenced and, crit­i­cally, edited.

They could not con­tem­plate ec­to­ge­n­e­sis, the de­vel­op­ment of em­bryos in ar­ti­fi­cial con­di­tions out­side the uterus that has been suc­cess­fully tri­alled in the an­i­mal king­dom.

They could not an­tic­i­pate that the so­lu­tion to Ire­land’s abor­tion prob­lem, ex­port­ing it over­seas, would be cir­cum­vented by tech­nol­ogy and sci­en­tific ad­vances that al­low women to pur­chase and im­port med­i­cal abor­tion pills il­le­gally on­line and un­der­take the risks of a self-in­duced ter­mi­na­tion in her own home with­out med­i­cal su­per­vi­sion, our new “back­street”.

There has been some con­cern that per­mit­ting ac­cess to law­ful ter­mi­na­tion be­fore 12 weeks ges­ta­tion would lead to the erad­i­ca­tion of con­di­tions such as Down syn­drome.

But pre-im­plan­ta­tion ge­netic screen­ing and di­ag­no­sis, the next medico-le­gal fron­tier, may ren­der much of those pre­na­tal ar­gu­ments moot as more prospec­tive par­ents opt to have their em­bryos pro­filed be­fore im­plan­ta­tion, in ef­fect tak­ing such de­bates out­side of the womb where the Supreme Court has ruled (in the frozen em­bryo case) em­bryos do no at­tract pro­tec­tion.

The ques­tion of how and when per­son­hood be­gins, and it what cir­cum­stances it at­tracts pro­tec­tion, lies at the heart of the medico-le­gal mon­ster we cre­ated in the Eighth.

And whether you are pro-life, pro-choice or strug­gling in between, what is un­de­ni­able is that the Ar­ti­cle 40.3.3 has proved to be a crude and un­work­able mech­a­nism for all.

Dearb­hail McDon­ald is former Le­gal Editor of In­de­pen­dent News­pa­pers and has writ­ten ex­ten­sively on the his­tory of the Eighth Amend­ment.

Time bomb: The X Case in 1992 brought protests to the street and ref­er­enda amend­ing as­pects of Ire­land’s abor­tion laws

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