Much has been written about the outcome of a high-profile Belfast court case this week. But there was another case in Belfast in the last couple of years which should command our attention over the coming weeks.
If the Eighth Amendment is not repealed, the Irish state will never be in a position to decriminalise any termination of a pregnancy in Ireland unless it is necessary to avoid a real and substantial risk to the life of the pregnant girl or woman (including the risk of suicide).
That means that it will continue to be a criminal offence for anyone to terminate any pregnancy in Ireland in the case of a rape, incest, or in the case of a fatal foetal abnormality. It will also continue to be a criminal offence to terminate a pregnancy in order to avoid a serious risk to the health (as distinct from the life) of the pregnant girl or woman (such as an increased risk. including blindness. in the case of a diabetic woman).
Take a very real Belfast court case as an example that actually happened on this island in the last two years; a 19 year old teen-age girl, who could not afford to travel to Britain but instead ordered online and self-administered an abortion pill readily available from Britain, was reported by house-mates to the police, admitted what she had done, and was prosecuted as a criminal and given a suspended prison sentence at the age of 21. That happened two years ago this week in Belfast.
But it would and could have just as easily happened in Dublin or Cork. And, as sure as night follows day, it will happen in Dublin and Cork, now that the abortion pill is relatively easily accessible and available (albeit illegally) in the Republic.
Going back to the X case in 1992, we would do well to remember the facts. The girl victim was 14 years of age when she was impregnated by a rapist described in the High Court judgment as “a depraved and evil man”, the father of a school friend. The State successfully sought an injunction restraining her and her parents from arranging for an abortion in Britain or from bringing her out of Ireland until nine months had elapsed.
The Supreme Court, on appeal, by a majority held that there was jurisdiction based on the Eighth Amendment to grant such travel injunctions as the right to life of the unborn outweighed the right of the girl or woman to travel abroad. But it also decided that the risk of suicide that had been established was a risk to the life of the girl that could justify a termination of her pregnancy either in Ireland or abroad. On that narrow basis, the injunction granted in the High Court was discharged.
The result of the decision in the X case created huge public reaction. The Government, in response, put three constitutional amendments before the people intended effectively to reverse the courts’ decision.
One was to prevent the risk of suicide being a ground for abortion. The people rejected that proposal. The second was to prevent the issuance of travel injunctions as a means of preventing girls and women from accessing abortion abroad. The people approved this proposal. The last proposal was to make lawful the giving of information in Ireland about access to abortion services abroad. The people also approved that proposal.
So the people in 1992 at the ballot box amended the Constitution to prevent the Eighth Amendment being used to stop Irish women travelling for the purpose of an abortion and to make abortion information available.
In doing so, the Irish people clearly recognised that an embryo or foetus resulting from a rape, as in the X case, did not really have the same moral right as regards its life as its mother or a toddler would have.
The simplistic language of the Eighth Amendment which purportedly equates the rights of an embryo with that of an adult citizen was, and is, a political and legal falsehood. That fictitious equality of rights was massively diluted by the amendments approved by the people in response to the X decision.
The Dáil did nothing to enact laws on foot of the Eighth Amendment until the outcome of the Savita Halapanaver tragedy brought forth the Protection of Life In Pregnancy Act 2013.
That Act provided for lawful terminations in Ireland unborn only on grounds of risk (including suicide) to the life of the mother but left all other terminations to be criminal in Ireland, including use of the abortion pill, terminations for rape and incest victims, terminations to avoid serious but not life-threatening risks to the health of the mother, and terminations in the case of fatal foetal abnormality.
In a time-line, the Dáil had only legalised contraception (only for married couples and on a doctor’s prescription in 1979 and even for condoms) as a result of the Supreme Court decision in the McGee case. That was Charles Haughey’s “Irish solution for an Irish problem”.
The McGee decision by our judges so frightened Catholic conservatives that they started to campaign for a pro-life amendment, claiming that we could not trust the judiciary not to decide an Irish version of the Roe v Wade abortion case in the US. They succeeded in persuading both FF and FG in 1982 to promote the Eighth Amendment adopted in 1983. That was thirty five years ago.
The right to travel for abortion inserted in the Constitution was aptly described in the Seanad this week as “an English solution for an Irish problem”. For a quarter of a century, we have been exporting our abortion problem to Britain and Holland at the rate of at least twelve women per day.
The abortion pill has now created a new and very different situation. Early term abortion has arrived in Ireland as a criminal option delivered through the letter box.
If we vote no, we will have latter-day Ann Lovetts dying in other Granards for want of medical treatment in the aftermath of taking abortion pills. We will have the shame of back street abortion. We will have the hypocritical exodus of Irish women forced to go to Britain seeking abortions. There will be prosecutions of adults who supplied girls with the abortion pill. Rape victims who do not want to carry the foetus of their rapist will be forced to travel abroad to protect themselves from the consequences of the crime committed against them, or face prosecution if they end their pregnancy in Ireland.
This is what retaining the Eighth Amendment means. No less.
Let’s remember Miss X and her agony. And let’s remember too the young girl in Belfast who received her suspended sentence in Belfast.
She read in the next day’s paper a statement from the North’s pro-life movement, Precious Life, claiming that her sentence was too lenient for a crime that carries a maximum sentence of life imprisonment.