ABORTION POSITION PAPER, Papers of Philosophy

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NWCI Policy Position Paper on Abortion

March 2013

TABLE OF CONTENTS

• Acknowledgements.................................................................................................................................
• Foreword.................................................................................................................................................
• Executive Summary.................................................................................................................................
• NWCI Position: Achieving Gender Equality – The Importance of Reproductive Rights..........................
• Abortion and the Law in Ireland
• Report of the Expert Group on the Judgment in A , B and C v Ireland
• Medical Practice and Abortion
• Psychological, Physical and Financial Costs of Abortion – The Reality for Women in Ireland
• Abortion and Women’s Human Rights
• Trends in European Law........................................................................................................................
• Support for Legalisation of Abortion
• NWCI Recommendations for Policy Change
• References

Executive Summary

This position paper articulates the mandate by NWCI members for the NWCI to adopt a pro-choice position on abortion. It sets out this position and examines the current situation in relation to abortion and the law in Ireland, including the report of the Expert Group on the Judgement of A, B and C, as well as current medical practice. It outlines the impact on women who seek abortion outside the jurisdiction and examines abortion in the context of women’s Human Rights. Finally it looks at trends in European law and public support for abortion in this country. It concludes with a number of recommendations for policy change.

For the NWCI, gender inequality is an intersection of socio-economic, political and cultural inequalities that significantly affect women’s lives. The NWCI views the denial of access to safe and legal abortion in Ireland in this context. For the NWCI, access to safe and legal abortion is indistinguishably linked to human rights values and principles. Failure to provide for safe and legal abortion in Ireland contravenes these rights. Ireland’s prohibitive regulation of abortion and the discriminatory nature of its application have been consistently subject to criticism by international human rights monitoring bodies.

While abortion is legal in Ireland where there is a real and substantial risk to the life of the pregnant woman, including the risk of suicide, this right is largely theoretical. Dating from 1861, the Offences Against the Persons Act remains the basis of criminal law on abortion in Ireland. It criminalises women who procure a miscarriage and anybody who assists them, resulting in the ‘chilling’ effect that this has on women and doctors. In 1983 the Eighth Amendment to the Constitution gave equal rights to the mother and the unborn child. In 1992, in what became known as the X case, the Supreme Court interpreted the article as guaranteeing the right to terminate a pregnancy lawfully and within the State where there is a real and substantial risk to the life, as opposed to the health, of the mother and included the threat of suicide. No legislation has ever been enacted to implement this decision.

In the absence of clear legislation, the medical profession rely on Medical Council Guidelines. These guidelines provide no adequate guidance on what counts as a real and substantial risk to life, as opposed to the health, of the woman. In November 2012, the report of the Expert Group on the Judgment in A, B and C v Ireland was published. The report is unambiguous about Ireland’s legal obligations and finds the implementation option that would be constitutionally, legally, and procedurally sound to give effect to the judgement of the European Court of Human Rights in the A, B and C v Ireland case is a combination of legislation and regulation.

The decision to have an abortion is not one that women take lightly. A pregnancy, planned or unplanned, can become a crisis pregnancy for a range of complex personal, social and economic reasons, including concern for the well-being of other children, diagnosis of serious foetal abnormality, financial worries, pre-existing health problems, including mental health problems, and relationship issues. Over 4,200 women in Ireland travel abroad to access abortion services every year. For all of them, the stress involved in deciding to have an abortion is exacerbated by having to travel to another country to access abortion services, by the expense involved, by feelings of fear and stigma, by secrecy, by a sense of isolation or by lack of support. The need to travel abroad to avail of abortion services causes significant financial, emotional, physical and psychological hardship.

The shift in public attitudes to abortion has been significant in the last decade. Opinion polls and research from 2004-2012 consistently show increased support for access within Ireland. The most recent found that significant majorities were in favour of abortion in Ireland.

The NWCI recommendations for policy changes are:

1. Immediate repeal of the provisions of the Offences Against the Person Act 1861 in relation to abortion.
2. Immediate legislation to implement the Supreme Court ruling in the X Case and the judgment of the European Court of Human Rights in the A, B and C v Ireland case. This legislation should include: i. Criteria and procedures that allow for a practical assessment by doctors and women of a ‘real and substantial risk’ to the life of the pregnant woman including risk of suicide; ii. A framework to examine/resolve differences of opinion between a woman and her doctor or doctors; iii. A duty of care on health service providers to ensure that women receive appropriate information and care, including post-abortion care.
3. Promptly initiate the constitutional reform and enact the legislative changes necessary to introduce safe and legal abortion in Ireland.

safe and legal abortion in Ireland in an overall context of gender equality, including the context of

human rights and social justice.

For the NWCI, and the women we represent, access to safe and legal abortion is indistinguishably

linked to human rights values and principles that protect a woman’s right to privacy, her right to

bodily integrity, her right to self-determination, her right to be free from inhuman, cruel and

degrading treatment and her right to accessible, appropriate and quality health care, as guaranteed

by international human rights instruments. Failure to provide for safe and legal abortion in Ireland

consistently contravenes these rights.

The NWCI views reproductive health and rights within a social justice framework, highlighting the

right to have and not to have children and linking it to other fundamental human rights such as the

right to decent housing, the right to access good education, and the right to have access to health

care. Ethnicity, culture, social class, income poverty, location, sexual orientation, age, disability and

other differences can all contribute to the inequalities in women’s lives and impinge on decisions

concerning their health and wellbeing.

The reality is that many women in Ireland experience crisis pregnancies. In 2010, according to the

Irish Contraception and Crisis Pregnancy Study, one in every seven pregnancies for women in Ireland

were crisis pregnancies^5. Pregnancy can become a crisis due to a range of diverse personal

circumstances. These are often located within persistent gender inequalities and intersect with

other circumstances in women’s lives, including socio-economic status, disability/ability,

immigration status, or where lack of government action in certain areas leaves women without a

choice.

Women’s experience in employment can often influence whether a pregnancy is or becomes a crisis.

In a literature review of research on pregnancy and employment carried out for the Crisis Pregnancy

Programme,^6 Russell and Banks (2011) cite studies showing that a crisis pregnancy may not initially

be interpreted as such but may become so as circumstances change, including in a woman’s

employment.^7 Research cited also suggests that the likelihood of crisis pregnancy is strongly related

to work-life balance policies adopted by employers, workplace culture and maternity arrangements.^8

The authors cite a nationally representative survey of the population, which found 28% of women

and 23% of men had experienced a crisis pregnancy. They report that while crisis pregnancies occur

among child-bearing women of all ages, women in their early twenties are more likely to experience

one. This coincides with the age at which most women enter a critical phase in their employment

experience or career. Three per cent cited ‘work’ and 5% cited ‘financial reasons/unemployment’ as

reasons for the pregnancy becoming a crisis.^9 The authors also refer to further research suggesting

that the absence or presence of flexible working arrangements influences decision-making in crisis

pregnancy. In this instance, women assess whether having a child will have a detrimental effect on

their career trajectories and assess how they will cope with parenthood in their current education or

employment circumstances (Redmond et al , 2006).^10

The outcome of crisis pregnancy varies but according to the same Irish Contraception and Crisis

Pregnancy Study, 21% of crisis pregnancies and 4% of all pregnancies end in abortion. While the

reasons for women deciding abortion is the best option are many and varied, studies have found a

link between their employment and the decision to have an abortion.^11 In a qualitative study carried

out in abortion clinics in the UK, more than one-third of the Irish women who had had an abortion

said career and job-related reasons had strongly influenced their decision. The authors report that in

deciding to terminate a pregnancy the women were not rejecting motherhood per se, but

motherhood in circumstances where they were financially unstable, beginning careers or in

education.

Though Ireland permits abortion in very restrictive circumstances, in reality abortion is not available

even when women may have a constitutional right to abortion. This is due to the fact that legislation

that would clarify the circumstances in which abortion is permissible and which would protect the

woman and her doctor(s) is absent. Ireland, therefore, exports its abortion problem and women are

forced to travel abroad to obtain one, often when they are ill or have had traumatic news of an

unviable pregnancy or in other difficult circumstances. In 2011, at least 4,149 women travelled to

the UK for an abortion with an additional number travelling to The Netherlands and other

countries.^12 Between 1980 and 2011, at least 152,061 women living in Ireland travelled to England

and Wales to access safe abortion services. The statistics are widely accepted to be an

underestimation as not all women living in the Republic of Ireland provide their Irish address. Other

women who cannot travel because they do not have the money or because their legal status in

Ireland prevents them from travelling may be forced to carry an unwanted pregnancy to term or

may import abortion pills unlawfully via the internet.

Stigma and the lack of support services in Ireland can add to a woman’s distress on her return. It is

incorrect and misleading, however, to assume that a woman who has had an abortion will develop

psychological distress as a result of her decision. Though some women experience distress, the

reason for this is often attributable to an inability to access safe and legal abortion in their own

country, and the added stress inherent in this situation.

Highly restrictive abortion laws are not associated with lower abortion rates. As outlined elsewhere in this paper, evidence shows that countries with unrestricted access to early termination of pregnancy do not report higher rates than countries with more restricted access and a comprehensive global study of abortion has concluded that rates are similar in countries where it is legal and those where it is not, suggesting that outlawing the procedure does little to deter women seeking it.

The provision of safe and legal abortion in Ireland would simply provide a service, of which many

women are already availing. The effect of providing access to abortion services in Ireland enables

women to avail of abortion in a way that respects and supports their right to choose.

The NWCI believes that achieving access to safe and legal abortion in Ireland is critical to advancing

the position of women in Irish society. Women must be able to make decisions about their own

bodies and health care free from coercion, discrimination and threat of violence: this, crucially,

includes the decision to carry a pregnancy to term or to seek an abortion and exercise these rights

without discrimination.

Abortion and the Law in Ireland

While abortion is legal in Ireland where there is a real and substantial risk to the life of the pregnant woman, including the risk of suicide, this right is largely theoretical. In its submission to the European Court of Human Rights in 2011, for example, the government was unable to point to a single lawful abortion carried out in the State.^14

Irish law does not permit abortion in cases where a woman is pregnant as a result of rape; where carrying the pregnancy to term puts the physical or mental health or wellbeing of the woman in danger; where the foetus has a severe abnormality incompatible with life outside of the womb; or where a woman has particular difficulties in travelling outside the State (e.g. the case of asylum seekers).

The Offences Against the Persons Act (1861) remains the basis of criminal law on abortion in Ireland. It criminalises women who ‘procure a miscarriage’ and those who assist them, e.g. a doctor, imposing a maximum penalty of life imprisonment in both cases.^15 Healthcare workers and others who provide drugs or other instruments to assist with an unlawful abortion are subject to imprisonment for three years.^16 The legislation also imposes strict constraints on the provision of abortion-related information making it a crime for anyone to knowingly supply the means to ‘procure a miscarriage’.^17 The European Court of Human Rights has found this Act to have a ‘chilling effect’^18 , which refers to women and doctors fearing prosecution and the influence this has on their decisions.

In 1983, a referendum on the Eighth Amendment to the Constitution to insert Article 40.3.3 was passed. It gave equal rights to the mother and the unborn. It states: ‘The State acknowledges the right to life of the unborn and, with due regard to the equal right of the life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.’ To date, no legislation has been enacted to give effect to Article 40.3.3, a fact consistently criticised by the Irish courts.

In 1992, in what became known as the X case, the Attorney General was granted an injunction to prevent a 14-year-old girl pregnant as a result of rape from seeking an abortion abroad. This injunction was appealed to the Supreme Court, whose interpretation of Article 40.3.3 held that the Constitution guarantees the right to terminate a pregnancy lawfully and within the State where there is a real and substantial risk to her life (as distinct from her health) which can only be averted by terminating the pregnancy. It stated that risk of suicide may constitute a real and substantial risk to life.^19

In a subsequent referendum, three amendments to the Constitution were considered:  The Twelfth Amendment proposed that the prohibition on abortions would apply even in cases where the pregnant woman was suicidal. This was rejected.  The Thirteenth Amendment proposed that the prohibition on abortion would not limit the freedom of pregnant women to travel out of the state. This was passed.  The Fourteenth Amendment proposed that the prohibition of abortion would not limit the right to distribute information about abortion services in foreign countries. This was passed.

No legislation was subsequently enacted to implement the Supreme Court judgment despite the finding in the X case that this failure to clarify the circumstances in which lawful abortion was possible was ‘inexcusable’.^20 Without such legislation, women and their doctors have no guidance on the law and run a risk of criminal conviction and imprisonment should a decision taken in a medical consultation be found not to accord with Article 40.3.3. To avoid the criminal law, women have no

option but to travel to another jurisdiction to seek abortion, even in cases where it is lawful in Ireland.

A, B and C v Ireland

In 2009, three women, known as A, B and C, challenged Ireland's restrictive abortion laws at the European Court of Human Rights. Applicant A had children in the care of the State as a result of personal problems and considered a further child would jeopardise the successful reunification of her existing family. Applicant B was not prepared to become a parent. Applicant C was in remission from cancer when she became pregnant. Unaware that she was pregnant she underwent a series of check- ups contraindicated during pregnancy. Upon learning she was pregnant, she was unable to find a doctor willing to make a determination as to whether her life would be at risk if she continued with the pregnancy or how the foetus might have been affected by the tests she had undergone.

On December 16, 2010, the Grand Chamber of the Court unanimously held that Ireland’s failure to give effect to Applicant C’s constitutionally guaranteed right to abortion in the case of a life- threatening pregnancy constituted a violation of Article 8 of the European Convention on Human Rights.

The Court considered that the uncertainty generated by the lack of legislative implementation of Article 40.3.3, and more particularly by the lack of effective and accessible procedures to establish a right to an abortion under that provision, has resulted in a striking discordance between the theoretical right to a lawful abortion in Ireland and the reality of its practical implementation.

Regarding the two other applicants, the Court found that Irish laws prohibiting Applicants A and B from terminating their pregnancies in Ireland for health and wellbeing reasons interfered with their right to respect for their private lives. While recognising the serious physical, financial and psychological impacts of travelling abroad for abortion services, the Court, by a majority vote of eleven votes to six, held that because Applicants A and B could lawfully travel to England for an abortion and access pre- and post-abortion information and medical care in Ireland, there was no violation of Article 8.^21

In 2010, the European Court of Human Rights ruling in the case of in A, B and C v Ireland that Ireland’s failure to implement the existing constitutional right to a lawful abortion in the case of C when a woman’s life is at risk violates Article 8 of the European Convention on Human Rights (ECHR). The Court found that:

1. No criteria had been laid down in law by which a ‘real and substantial’ risk to a woman’s life could be measured.
2. There was no framework in place to resolve any difference of opinion between a woman and her doctor or between doctors.
3. The serious criminal penalties for having or assisting in an unlawful abortion would constitute a significant ‘chilling factor’ for women and their doctors, regardless of whether prosecutions have been pursued under the 1861 Offences Against the Person Act.

As a signatory to the European Convention on Human Rights, Ireland is obliged to implement the court’s judgement. In January 2012, the Government established an expert group to recommend a series of options on how to do this. The final report was presented in November 2012.

Expert Group says it was not its function to specify how the judgement should be implemented but rather to provide options, it finds the implementation option that would be constitutionally, legally, and procedurally sound is a combination of legislation and regulation. Primary or amending legislation would regulate access to lawful termination of pregnancy in Ireland in accordance with the X Case , the requirements of the European Convention on Human Rights and the judgment in A, B and C v Ireland. This legislation would provide for the drafting of regulations to deal with relevant detailed and practical matters such as changing medical practices and scientific advances, as well as addressing emerging challenges to implementation. Most aspects of the provision of lawful termination of pregnancy would be set out in primary legislation, with certain operational matters delegated to the Minister to govern by way of regulation.^24

The advantages of this option, according to the report, are that:

 It fulfils the requirements of the judgement.

 It provides for appropriate checks and balances between the powers of the legislature and the executive, and

 It is amenable to changes arising in clinical practice and scientific advances.

Such legislation would update the 1861 Act and remove the chilling effect, since legal protection from prosecution would be assured by compliance with the legislation.

Medical Practice and Abortion

In October 2012, Savita Halappanavar presented at University Hospital Galway 17 weeks into her pregnancy and suffering from severe back pains. Doctors informed her that she was having a miscarriage, and then, over a three-day period, denied her repeated requests to terminate her pregnancy as her condition worsened. According to reports, the doctors told her they couldn't offer her treatment because they could still detect a foetal heartbeat, even though they had told Ms, Halappanavar and her husband that the foetus was not viable. On October 28, just days after the foetal heartbeat stopped, Savita Halappanavar died^25_._

On November 14th, the circumstances surrounding the death of Savita Halappanavar were reported in the media. Since, the case has drawn extensive international attention and has renewed calls for the Irish Government to legislate for what is a constitutional right to abortion in the case where the life of the mother is in danger. A number of sources have called for legislation to go further and legislate for access to safe and legal abortion in Ireland.

No other country in Europe makes the distinction made in Irish law, which permits abortion to save a woman’s life, but not to preserve her health.^26 In assessing when an abortion is medically required, this absence of legislation places doctors in a difficult position. The most recent Medical Council Guidelines^27 provide information on the position of abortion in Ireland:

 21.1 Abortion is illegal in Ireland except where there is a real and substantial risk to the life (as distinct from the health) of the mother. Under current legal precedent, this exception includes where there is a clear and substantial risk to the life of the mother arising from a threat of suicide. You should undertake a full assessment of any such risk in light of the clinical research on this issue.  21.2 It is lawful to provide information in Ireland about abortions abroad, subject to strict conditions. It is not lawful to encourage or advocate an abortion in individual cases.  21.3 You have a duty to provide care, support and follow-up services for women who have an abortion abroad.  21.4 In current obstetrical practice, rare complications can arise where therapeutic intervention (including termination of a pregnancy) is required at a stage when, due to extreme immaturity of the baby, there may be little or no hope of the baby surviving. In these exceptional circumstances, it may be necessary to intervene to terminate the pregnancy to protect the life of the mother, while making every effort to preserve the life of the baby.

However the guidelines provide no adequate guidance on what counts as a real and substantial risk to life, as opposed to the health, of the woman. A health risk can turn into a risk to her life in particular circumstances, and it can be difficult in practice for doctors to judge when intervention is legally justified. In the recent hearings before the Joint Oireachtas Committee on Health and Children the Master of the National Maternity Hospital, Holles Street stated that there had been three cases of intervention before viability to save a woman’s life while the Master of the Rotunda Hospital reported that he was aware of six situations in the past year where a pregnant woman would have died without intervention and the incidence of potentially life threatening complications in pregnancy is rising due to the increasing age of women having children and the increased incidence of health risks (e.g. obesity).

could seek a second medical opinion or could apply to the High Court for orders directing the necessary treatment to be provided. In such a case, the seriously ill woman could also subsequently bring a complaint to the Medical Council or initiate proceedings on the basis of medical negligence under the law of tort. The Minister acknowledged that the scenarios described above were not deemed satisfactory or appropriate by the European Court of Human Rights.^34

By situating women’s decision making in a context of criminality, the law infringes on women’s dignity and autonomy. The 2011 interim report of the UN Special Rapporteur on the Right to Health highlighted the way in which criminal law shifts the burden of realising the right to health away from the State and onto pregnant women, some of whom may be seriously ill. The woman must seek treatment and an individual doctor must make a legal determination in a context where a medical decision could become the subject of a criminal enquiry, a prosecution and potentially result in a criminal conviction.^35 The World Health Organisation highlights the importance of an enabling regulatory and policy environment to ensure that every woman who is legally eligible has ready access to good-quality abortion services^36.

Doctors’ Testimonies

“Is termination of pregnancy ever necessary? I would say yes. In our hospital last year we had six situations where I can absolutely tell you for sure, that if intervention had not been made, if that mother had not died soon after the event, she would have died subsequently.” Dr. Sam Coulter Smyth, Master of the Rotunda Hospital. January 2013

“Within the Supreme Court Judgement there is a lack of clarification surrounding what exactly constitutes a “real and substantial risk to life”. It must be pointed out that the expected legislation to provide greater clarity did not follow the Supreme Court judgement.as Justice McCarthy pointed out, “No matter how high the probability that the mother will die, it is not a certainty.” Doctors may rarely be certain that the pregnant woman will inevitably die as a result of her pregnancy. In addition, it is not clear whether or not the risk to life must be immediate or may it be delayed. An example would be women with concurrent disease where there is concern that the additional physiological burden of pregnancy poses a significant risk to life which may increase as the pregnancy develops.”

“The critical question arises as to how a substantial risk of mortality is defined. Can it be a 10% risk of death or an 80% risk of death or a requirement for intensive care support? It must be recognised that it is clinically difficult, if not impossible at times, to distinguish with certainty the difference between risk to health and risk to life? It is clear that the measure of substantial risk to life is open to interpretation and must be a matter of opinion based on medical judgement and not fact. For those who argue that the broad concepts contained in the judgement of the X case are sufficient, it must be pointed out that this judgement is not supported by legislation and/or regulation. Meanwhile the 1861 Offences Against the Person Act is current law which remains in force insofar as the provisions of this law are not inconsistent with the Constitution. In itself the provisions of the 1861 Act are not clear in relation to their scope and content. Therefore it is very important that medical practitioners and women are afforded legal protection to allow for appropriate flexibility to make professional clinical decisions based on medical probability of risk to life rather than certainty. It is not clear to me that such legal protection currently exists.” Dr. Rhona Mahony, Master of the National Maternity Hospital, Holles Street. January 2013

Psychological, Physical and Financial Costs of Abortion – The

Reality for Women in Ireland

Even with legislation to realise the constitutional right to abortion where there is a real and substantial risk to the life of the mother, Ireland will still have one of the most restrictive regimes in the world. Yet restrictive laws and criminalisation do not deter women from terminating pregnancies: women in Ireland are seeking abortions. The failure to provide services in Ireland creates considerable psychological, physical and financial hardship for those who are either forced to travel outside the country for abortion or forced to carry an unwanted pregnancy to term because of restrictions imposed on them.

The decision to have an abortion is not one that women take lightly. ICCP-2010^38 defines a crisis pregnancy as one that represents a personal crisis or an emotional trauma in either of the following circumstances: (a) a pregnancy that began as a crisis or (b) a pregnancy that develops into a crisis before the birth due to a change in circumstances. A pregnancy, planned or unplanned, can become a crisis pregnancy for a range of complex personal social and economic reasons, including concern for the well-being of other children, diagnosis of serious foetal abnormality, financial worries, pre- existing health problems, including mental health problems, and relationship issues.

Women and girls who gave Republic of Ireland addresses at abortion clinics in England and Wales 2002- 2011 Year All ages Under 16

16 - 17 18 - 19 20 - 24 25 - 29 30 - 34 35 - 39 40 and over 2011 4,149 37 111 295 1,109 1,051 755 534 257 2010 4,402 41 115 303 1,181 1,137 789 565 271 2009 4,422 38 155 291 1,234 1,164 759 523 258 2008 4,600 27 140 344 1,296 1,232 841 499 221 2007 4,686 47 147 350 1,387 1,282 790 474 209 2006 5,042 39 194 419 1505 1370 824 491 200 2005 5,585 39 173 482 1759 1451 860 541 280 2004 6,217 49 209 540 1963 1663 951 607 235 2003 6,320 42 242 552 2090 1597 954 579 264 2002 6,522 54 245 615 2258 1604 928 552 263 2001 6,673 12 29 903 2,404 1,685 875 508 239

According to a Crisis Pregnancy Programme Report, pregnancies ending in abortion increased from 2% in 2003 to 4% in 2010.^39 For women, 21% of all crisis pregnancies ended in abortion.^40

Figures from the Department of Health in the UK for the number of women and girls who gave Republic of Ireland addresses at abortion clinics in England and Wales show that in 2011, 4, women gave Irish addresses at UK abortion clinics.^41 Many others give no details or travel to countries such as the Netherlands or Spain.^42 In the ten years between 2001 and 2011, 58,618 Irish women and girls obtained an abortion in a clinic in the UK or Wales. An additional 1,470 women obtained an abortion in The Netherlands between 2005 and 2010. Between 1980 and 2011, at least 152,061 women living in Ireland have travelled to England and Wales to access safe abortion services. Crucially, these figures are probably an underestimation of the true numbers as many Irish women give no Irish address for reasons of confidentiality.^43

In one woman’s words, ‘My husband and I felt no shame about the decision we had made, but this journey made us feel like criminals’. Such treatment and the need to travel to the UK, according to another woman, ‘made an already traumatic experience feel infinitely worse.’

Women travelling from Ireland tend to have later abortions^47 because of the need to organise the logistics of travel, including having to raise significant funds, organise childcare, negotiate time off work and make travel and accommodation plans. Seriously ill women are forced to travel without a proper referral from their doctor and so the clinic they attend for the termination has no proper medical records.^48

Women with a diagnosis of foetal abnormality incompatible with life outside the womb and those who decide to terminate a pregnancy because of risk to their health or life are effectively abandoned by the Irish health services and made to feel like criminals.^49 Some who have had abortions because of a fatal foetal abnormality report being refused subsequent genetic testing and experiencing a repeat of the same situation with a later pregnancy.^50

Women’s Testimonies

Claire’s story ….when I had my scan I was told that my beautiful daughter had a condition called anencephaly.. the short of it was that our daughter had no hope of surviving and would die without a doubt. To say we were heartbroken is an understatement. We were told in Ireland I had to carry my baby full term, I was told I would not be bought in early, I would not be given a C section and I would have to go through the labour. Alternatively I could travel to the UK to terminate our pregnancy. How would I cope emotionally? How could I keeping growing day by day and feel this baby inside me? How would I deal with the questions from well-meaning people – when is your baby due etc.! How could I watch my perfect baby struggle and die in my arms? After much deliberation I felt it would be too difficult to continue with the pregnancy knowing our daughter was going to die and opted for a termination in the UK the day before New Year’s Eve in 2010 at 24 weeks pregnant. Because of our laws I was not allowed receive any help from the hospital here. I was given one recommendation of a well- known UK clinic and we went with this. I was treated so coldly. I had to leave my home, my comfortable surroundings and travel to a strange country. This situation was difficult enough to cope with without having the added problems of travelling to the UK. I had to leave my own local hospital where I felt safe, where I knew I could be looked after. I had horrible cold care in the UK. On the advice of the clinic, I was told I could book flights home for the same day of the termination. I have since been told that this was very dangerous to travel after a surgical abortion at 24 weeks gestation following a general anaesthetic again, something that should not have been an issue if my hospital were allowed induce my labour early. Had I been allowed stay here I would not have had the health risk of flying home. I could have had all my family around me. I could have had my own comforts .I could have seen my lovely daughter and buried her close to me. Now, I will never know what she looked like and I have no place to visit her.

Asylum seeking women must apply and pay for an emergency visa from the Department of Justice, as well as a visa to enter the UK or The Netherlands, often having to wait for up to six to eight weeks for the paperwork or may not be able to travel at all. Other women for whom travel from Ireland is impossible are often forced to continue with an unwanted or problematic pregnancy while others resort to unlawful means within the State, such as ordering often untrustworthy medication online to self-induce abortion that may put their health at risk. According to the World Health Organisation: ‘In countries where induced abortion is legally highly restricted and/or unavailable, safe abortion has frequently become the privilege of the rich, while poor women have little choice but to resort to

unsafe providers, causing deaths and morbidities that become the social and financial responsibility of the public health system.’^52

Women and girls who experience the most difficulty are those already marginalised and disadvantaged, those with little or no income, women with care responsibilities, women with disabilities, women with a mental illness, women experiencing violence, young women, asylum seekers and women who are undocumented. It can be argued that the Government’s failure to legislate amounts to indirect discrimination on several grounds including disability and ‘race’.^53

The court’s finding in A, B and C v Ireland that there had been no violation of the rights of Applicants A and B rested on the fact that they could avail of abortion services in another state.^54 If a woman unable to travel outside Ireland to have an abortion, or who experienced significant delay in travelling, were to take a case, it would be open to the court to find a violation of the Convention in these circumstances.^55

Women’s Testimonies

Aoife was sixteen years old and living in a rural part of Ireland when she became pregnant. She was unable to access information on abortion services until she began university in Dublin and subsequently travelled to the UK ‘alone and extremely distressed’. As a result of the delay in accessing information, Aoife was almost 28 weeks pregnant when she had an abortion. She experienced much hardship in raising the necessary funds to travel: ‘I had to go to my ex-boyfriend. His first line was ‘are you sure it’s mine?’ It was very humiliating. He had to involve his brother who was appalled’.

Aisling experienced much difficulty in accessing diagnostic tests in the early part of her pregnancy. As a result, she discovered at a late stage that her foetus had developed a severe abnormality. ‘I saw the consultant at this visit. He was extremely quick and dismissive. He was very defensive… why these tests? Did I know they could lead to an abortion? Did I know they could be wrong and so I could abort a healthy child?’ Aisling paid for the diagnostic tests herself. After being refused a second scan by the ultrasound department, she arranged to have one abroad and subsequently accessed abortion services in a European country. ‘I was very angry, I felt let down, maltreated.’ When Aisling enquired about genetic testing upon her return to Ireland, the hospital told her to ‘come back when you’re pregnant again’.

Sarah described what she called ‘the shame factor’ in being forced to travel abroad to access abortion services. ‘Having to lie to everyone, the lies and the shame make you feel like you’re doing something really wrong, like a drug dealer. The travel part is so difficult. I don’t think people know this…It is still so traumatic even if you can afford it’.

A comprehensive global study of abortion^57 has concluded that abortion rates are similar in countries where it is legal and those where it is not, suggesting that outlawing the procedure does little to deter women seeking it. In a forthcoming report^58 , Sedgh G et al state that highly restrictive abortion laws are not associated with lower abortion rates. For example, the abortion rate is 29 per 1,000 women of childbearing age in Africa and 32 per 1,000 in Latin America—regions in which abortion is illegal under most circumstances in the majority of countries. The rate is 12 per 1,000 in Western Europe, where abortion is generally permitted on broad grounds.

Abortion and Women’s Human Rights