The law on abortion. By Cathie Doherty

Abortion remains sidelined in this society, and others, to the point where it is almost impolite to raise the issue – as “divisive”, “already dealt with” or “an ongoing debate”. But when you start to look at the reality of the law you realise it is “ongoing debate”, that will prevail, with no government action to move forward despite last year’s legislation, and every risk of more hard cases that will show up the gaps in our law.
Although there have been reports of abortions under the new legislation senior doctors have refused to confirm this. Indeed it is unclear whether there were abortions before the legislation was introduced. Such egregious obfuscation can only suggest a failure of empathy for women’s rights.

It is despite the fact that opinion polls, such as one last June, show that a majority favours broadening access to abortion. The Ipsos/Mori poll in the Irish Times of summer 2013 records very strong majorities in favour of abortion in the case of risk to the women’s life (89%), health (78%), fatal foetal abnormality (83%), and rape and abuse (81%), and a small majority (52%) in the event or a threat of suicide.

However, in a shocking subversion of the democratic will of the people, the subsequent passing of the Protection of Life During Pregnancy Act (PLDPA), after a lengthy and fractious debate, in fact changed very little for abortion-seekers in Ireland.

While it provides for terminations when there is a “real and substantial” risk to the life of a pregnant woman, even on its face the law does not provide for abortion in the case or rape or incest, or in the case of fatal foetal disorders; and most of all it does not provide for abortions in the event of a risk to health, creating a dangerous environment where medical intervention is delayed while the risk to health evolves into a risk to life.

The PLDPA perpetuates the systematic ignoring of the agency, the autonomy, of the pregnant woman. During the inquest into the death of Savita Halappanavar, the jury heard that she would probably still be alive today if the law had allowed an abortion as she miscarried, before there was a real risk to her life – when it was too late to save her.

Though the coroner was keen to clarify that the medical deficiencies were not in themselves responsible for her death, the clinical Director of Holles St National Maternity Hospital, Dr Peter Boylan, noted: “The real problem was the inability to terminate the pregnancy prior to Ms Halappanavar developing a real and substantial risk of death. By that time it was effectively too late to save her life”.

Indeed a draft of a ‘Guidance Document for Health Professionals from the Department of Health’, which has yet to be made public but was obtained by the Guardian newspaper, is more assertively anti-abortion than last year’s law. In its introduction, the document states that “the purpose of this act is to restate the general prohibition on abortion in Ireland” (while regulating for the X and A, B and C cases).

Later it notes that the act provides “a clear criminal prohibition on abortion” (with one exception). The Guidance will give power to doctors, obstetricians and psychiatrists to prevent vulnerable women from terminating their pregnancies.

It will be interesting to see the forces behind the Guidance for they do not reflect the prevailing ethos in 2014, or indeed even the constitution and last year’s legislation. The document itself was compiled by the Department of Health “in collaboration with a multi-disciplinary committee of experts”, comprising representatives of the usual worthy professional bodies with an independent chair, Dr Declan Bedford.

The 108-page guide does not include provisions for an independent committee to make decisions on treating those with “suicidal intent”, which was a key demand among campaigners for reform.

If a GP agrees, he or she will refer the woman to three doctors – including one obstetrician and two psychiatrists – who will decide whether there is a real risk to the woman’s life through suicide. If her request is rejected, she will go through an appeal system involving another two psychiatrists and another obstetrician.

Veronica O’Keane, professor of psychiatry at Trinity College Dublin, said the rules would leave women “at the mercy of a local, moral and political lottery”. The United Nations Human Rights Committee, considered it “an excessive degree of scrutiny by medical professionals”. Yet this is what we are told the law prescribes.

Meanwhile the profession’s own Medical Council Guide which used to say it was not lawful to ‘advocate or encourage an abortion’ even in case of risk of suicide or to life now weirdly – and unlawfully it would ironically appear – merely makes it unlawful in the event that information is being provided with regard to abortion abroad.

The quiet change in January does for the first time assert the lawfulness of abortion in the event of a risk to the life of the mother, a risk which while substantial may not be immediate or inevitable. Professionals are now, as they always were, unable legally to intervene to manage miscarriage, or to manage a risk to health that could include heart, vascular and pulmonary disease, extensive hernias and benign tumours.

Having, or providing for, an abortion outside of the rigid parameters of the PDLPA could now result in up to 14 years in prison.

In addition to the barriers placed in front of medical professionals, only a small number of women can obtain a legal abortion in Ireland. Even then, abortion depends on a panel and vetting process that seems to reinforce the old stigma – pregnant women in Ireland are not to be believed, or trusted to know what’s best for them.

In practice for women in Ireland, abortion is obtained by travelling to another jurisdiction, or by (illegally) self-administering an abortion in Ireland. By using a reputable organisation – like Women on Web – women in Ireland have safely administered their own abortions, using mifepristone and misoprostol: the drugs used by abortion providers in UK clinics.

The abortion pill is a method for inducing a miscarriage and safer than Viagra. The only real dangers come from the secrecy and stigma associated with them: the danger the site will not provide the product promised, the risk women may not seek assistance in the rare event they do have complications (which are likely to be similar to miscarriage complications), the fear of a 14-year sentence.

A majority in Ireland favoured broader access to abortion than was permitted under the PLDPA but conversations about abortion in the media do not reflect this. Obliged by the Broadcasting Authority of Ireland to present abortion in a ‘balanced’ way, an artificial and skewed binary view divides those who favour the existing regime from those who favoured the regime that prevailed beforehand, with no airing of more radical, and reality-based, approaches.

Article 40.3.3,the 8th Amendment to the Constitution, a refugee from a previous simplistic era, is cited by government after government as a reason for not legislating to broaden access to abortion in Ireland. Because of it, the current government introduced flawed and unworkable legislation which criminalises abortion and prevents healthcare providers treating pregnant patients to the best of their ability.

Public opinion has changed but still the Government hide behind the 8th Amendment – wilfully ignoring the fact if they do not call for a referendum to repeal it, it is only a matter of time before the nation will be once again convulsed by a hard case, or an unnecessary death, illustrating that the complexity of childbirth requires, in the interests of freedom, equality and female autonomy, a woman’s right to choose.

March for Choice, September 27th, in Dublin;
Cathie Doherty is spokesperson for the Abortion Rights Campaign