Abortion in the Republic of Ireland

Abortion in Ireland is illegal unless the pregnancy is in threat of endangering the life of the woman through continuance of the pregnancy (including threat of suicide).

History

At independence from the UK in 1922, the Offences against the Person Act 1861 remained in force, maintaining all abortions to be illegal and subject to punishment. One of Ireland's best known abortionists, Mamie Cadden was famously sentenced to death by hanging in 1957 when one of her patients died. In response to the 1967 legalisation of abortion in the United Kingdom and the subsequent rise in the numbers of Irish women travelling to the UK each year to obtain an abortion, pro-life groups in Ireland began to press for an explicit amendment to the Irish constitution banning abortion. In 1983 the Constitution of Ireland was amended to add in what became generally known as the 'Pro Life Amendment', which asserted that the unborn had an explicit right to life from the time of conception, with the Irish State guaranteeing to vindicate that right. In the referendum, the case for the amendment was argued by the main opposition party Fianna Fáil, the Catholic Church, some Protestant church leaders and a pro-life lobby group called the Pro-Life Amendment Campaign (PLAC) (which had campaigned for the amendment, arguing that the Irish Courts could theoretically face their own Roe v. Wade court case) while the case against was put forth by a pro-choice lobby group called the Anti-Amendment Campaign, which included future President of Ireland Mary Robinson. The Pro Life Amendment Campaign subsequently became the Pro Life Campaign. The arguments against the amendment were also put by the Irish government then led by the centre-right Fine Gael under Garret FitzGerald, and most mainstream Protestant leaders. In the debate, no one actually advocated the legalisation of abortion.

While the 'Pro-Life Amendment' established the principle of the right to life of the fetus, with due regard to the equal right to life of the woman in Irish constitutional law, practical problems subsequently arose with its meaning. In 1992, a major controversy erupted over the issue of whether a suicidal minor who was a statutory rape victim, and who became pregnant, could leave Ireland for an abortion that is lawful in another country (Attorney General v. X, known as the 'X Case'). The Supreme Court interpreted the Pro-Life Amendment as giving a right to abortion in certain limited circumstances, in a judgment which came to be known as the 'X Case,' including when the woman's life was in danger.In the aftermath of the Grogan case the debate over Abortion in Ireland grew even more heated with widespread demonstrations taking place all over the country. In one instance one hundred thousand people marched from O'Connell Street to the Irish Parliament.

Court injunctions issued in 1988 and 1990 under the 1983 amendment barred family planning groups and student groups from offering abortion counseling, information and aid in travelling to Britain to procure abortions. These injunctions grew increasingly unpopular, particularly after the 'X case'. Questions were also raised as to whether the bans on access to information violated provisions in the Maastricht Treaty.

Constitutional Referendum 1992

Another referendum was held in 1992, in which two amendments were passed that established the 'right to travel' and the 'right to information'. A third proposal, the proposed Twelfth Amendment, would have defined when abortions could be considered legal, but was defeated. The 1992 referendum was fought at the same time as a general election which filled the newspapers and airwaves. This pushed the referendum to the very margins of public debate and whatever debate took place was on the substantive issue and not on Information or Travel. The Government also spent public funds on one-sided advertisements - a practice later declared unconstitutional in the McKenna judgement. The amendment on the substantive issue was rejected and Travel and Information amendments were passed though nearly 40% opposed the latter. Due to questions about the constitutionality of the amendments, the changes did not come into force until 1995.

Constitutional Referendum 2002

A further referendum was held in 2002 on the Twenty-fifth Amendment, but it too failed to enact any regulatory changes.

Public opinion

Main article: Societal attitudes towards abortion

• A 1997 Irish Times/MRBI poll found that 18% believe that abortion should never be permitted, 77% believed that it should be allowed in certain circumstances (this was broken down into: 35% that one should be allowed in the event that the woman's life is threatened; 14% if her health is at risk; 28% that "an abortion should be provided to those who need it") and 5% were undecided.
• A September 2004 Royal College of Surgeons survey for the Crisis Pregnancy Agency found that, in the under-45 age groups, 51% supported abortion on-demand, with 39% favouring the right to abortion in limited circumstances. Only 8% felt that abortion should not be permitted in any circumstances.
• A September 2005 Irish Examiner/Lansdowne poll found that 36% believe abortion should be legalized while 47% do not.
• A June 2007 TNS/MRBI poll found that 43% supported legal abortion if a woman believed it was in her best interest while 51% remained opposed. 82% favoured legalization for cases when the woman's life is in danger, 75% when the fetus cannot survive outside the womb, and 73% when the pregnancy has resulted from sexual abuse.
• A January 2010 Irish Examiner/RedC online poll found that 60% of 18-35 year olds believe abortion should be legalised, and that 10% of this age group had been in a relationship where an abortion took place. The same survey also showed that 75% of women believed the morning after pill should be an over-the-counter (OTC) drug, as opposed to a prescription drug.
• A February 2011 Pro Life Campaign/RedC poll found that 68% support constitutional protection for the unborn (the existing situation), 26% oppose it and 5% don’t know or have no opinion. It was a quota controlled sample of 1,025 people aged 18+ and was conducted between 8th – 10th February.

Summary

No clear result or consensus has emerged. In theory, abortion is legal in Ireland if there is a risk to the life of the woman. A provision exists in the Irish constitution to allow Dáil Éireann to legislate on this, however no political party has risked it, and in the meantime, while it is legal in theory, the body that holds medical licences in Ireland considers it malpractice for any doctor to perform an abortion. The Irish Medical Council stated "The deliberate and intentional destruction of the unborn child is professional misconduct. Should a child in utero lose its life as a side-effect of standard medical treatment of the mother, then this is not unethical. Refusal by a doctor to treat a woman with a serious illness because she is pregnant would be grounds for complaint and could be considered to be professional misconduct".

Estimates to the number of Irish women seeking abortions in Britain vary; in the 1990s it is alleged that between 1,500 and 10,000 women who stated in hospital records that they were 'Irish' travel annually. The official figure is 45,000 since 1967. In May 2007, a pregnant 17 year old girl, known only as "Miss D", who was pregnant with a fetus suffering from anencephaly was prevented from travelling to Britain by the Health Service Executive. The High Court ruled on May 9, 2007 that she could not be prevented from travelling because she was a ward of the state.

It has never been illegal in Ireland to provide standard medical care to a pregnant woman which may result in an indirect abortion. That is, where the abortion is not the desired outcome of the act, but a side effect of the treatment. The crime under the Offences Against the Person Act 1861 occurs when the intention is the deliberate and direct abortion of the fetus. As with any criminal offence Mens rea must be proved as well as Actus reus.

In 2005, three Irish women who had previously traveled to England for abortion brought suit in the European Court of Human Rights asserting that restrictive and unclear Irish laws violate several provisions of the European Convention on Human Rights. The case A. B. and C. v. Ireland was heard before the Grand Chamber of the Court on 9 December 2009 and was decided on 16 December 2010. In that case, the Court held there is no right for women to an abortion, although it found that Ireland had violated the Convention by failing to provide an accessible and effective procedure by which a woman can have established whether she qualifies for a legal abortion under current Irish law. The Court's decision is binding on Ireland and all of the contracting states of the European Council.

The law, at the moment, is highly complex, the original amendment modified by referenda and court decisions. However, even in its current state, Article 40.3.3 still makes abortion illegal by offering status to the unborn.

See also

• An Irish solution to an Irish problem
• A. B. and C. v. Ireland
• Abortion law
• Attorney General v. X
• Eighth Amendment of the Constitution of Ireland
• Contraception in the Republic of Ireland