By Ivana Bacik.
This summer we saw yet again the tragic consequences of the Eighth Amendment. In the Ms Y case, a young rape victim, an asylum seeker with a crisis pregnancy, was denied the abortion she sought, and ultimately forced to endure invasive medical procedures against her will. She had sought an abortion early in her pregnancy but was unable to travel abroad for one. She became suicidal, but it appears that her pregnancy was only diagnosed formally as posing a risk to her life too late for an abortion to be performed. Instead, the baby was delivered by C-section at about 25 weeks.
Not all the circumstances are clear, and the HSE is currently reviewing the case. However, it is manifest that this appalling case is a direct consequence of the 1983 Eighth Amendment. That amendment enshrined Article 40.3.3 in our Constitution, giving equal rights to life to both “mother” and “unborn”.
In the 1992 X case the Supreme Court interpreted this Article to mean that a rape victim was entitled to an abortion only where the pregnancy posed a “real and substantial” risk to her life. Abortion is thus only lawful in Ireland where a pregnancy poses a risk to the life of a woman, and not on any other ground; not rape, nor risk to a woman’s health, not even fatal foetal abnormality.
Our law portrays women as vessels, forced to carry unwanted pregnancies to term. But that’s not the reality for most women in hypocritical Ireland. In 1992 we amended Article 40.3.3 to allow the right to travel for abortion. So we have a two-tier regime. Women who can travel abroad to terminate their pregnancies do so in their thousands every year. Last year 3,679 Irish women had abortions in British clinics. Since 1983, more than 150,000 women have made that journey. We may have the most restrictive law on abortion in Europe, but the Irish abortion rate is comparable with that of every other EU country. Abortion is only denied to vulnerable women unable to travel due to poverty or legal status – like Ms Y.
The adoption of Article 40.3.3 has not prevented one crisis pregnancy. Yet legal change – even legislation to implement the X case – has been resisted by the powerful anti-choice lobby for decades. The Labour Party had promised this legislation and the Protection of Life During Pregnancy Act was finally introduced at our initiative last year. The debate on the legislation was overshadowed by public outrage at the tragic death in October 2012 of Savita Halappanavar, which highlighted the urgent need to provide clarity on the carrying out of life-saving abortions.
The Act does this but deals only with the most extreme cases, involving risk to a woman’s life. This is due to the restrictive wording of the Eight Amendment, which has effectively tied the hands of the Oireachtas for 31 years. It is our duty now as legislators to address the health needs of women by holding a referendum to repeal the Eighth Amendment. Only then can we introduce the compassionate legislation that is the norm throughout the EU, in which abortion is made available on a range of grounds up to specified time limits within pregnancy.
There is clear public support for this. The silent majority are well ahead of politicians on this issue, despite the strident “pro-life” lobbyists. Labour has long taken liberal stances on social issues. In line with this tradition, I believe that Labour should now seek political agreement for a referendum to repeal the Eighth Amendment within the remaining term of this Government.
If Fine Gael do not agree to this, then a consultative group should be convened to recommend how to achieve the necessary Constitutional change. A referendum could be held early in the term of the next Government, if a responsible political consensus could be built on such a recommendation. As we learn the distressing facts about Ms Y’s case, one thing is clear: if we do not change the law, we will see more tragic cases. Only repeal of the Eighth Amendment will enable us to enact an abortion law that meets the real health needs of women in Ireland. •
