It's time to consider regulating abortion by legislation
Published 19/08/2014 | 02:30
The constitutional position on abortion in Ireland is unsustainable.
Over recent days, harrowing details have emerged of a young woman who was raped, and then, suicidal, with limited English language skills and no capacity to travel because of her immigration status, was refused an abortion because, although there was a real and substantial risk to her life, the foetus was deemed viable.
Rather than terminate the pregnancy through abortion, this woman was subjected to a C-section at approximately 25 weeks into her pregnancy.
Although the question of whether or not a foetus is viable is a medical one, the constitutional equal right to life of pregnant women and unborn children means that viability closes off the possibility of abortion. This is so whether a woman is suicidal or suffering from a physical illness.
Thus, the Constitution effectively mandates involuntary pregnancy and major surgery for a woman who is at risk of death. This is an extraordinary position in which to find ourselves in Ireland, and it is not aided by the onerous processes outlined in the 2013 Act, the lack of clear published guidance for doctors and information for patients, and the continuing powerlessness of pregnant women, particularly those without the means to leave the country.
The constitutional position is deeply unsatisfactory, and we can also now see the inadequacy of the co-called procedural rights of women as outlined in the Act.
The chain of events that this woman experienced since she arrived in Ireland is not entirely clear; however, we do know that as soon as she realised she was pregnant - in April - she requested an abortion. Why was she not referred to a GP then in order to begin the process of assessing her request for an abortion under the Act?
We do not know the answer to this question, but it seems an important one to ask, because had the procedures under the Act been used then, the foetus would not have been viable and she would not have experienced the next four months of trauma.
We do not know how quickly the decision under the Act was made once the process commenced, although we do know that the Act does not lay down a timeframe within which such a decision has to be made. Neither does it require doctors who object to abortion as a matter of principle to declare that when a request comes before them. Both of these facts make women vulnerable to the political positions of medics involved in making decisions under the Act.
This is just one illustration of the fact that at every step in the process of requesting and obtaining an abortion under the Protection of Life During Pregnancy Act, women are systematically disempowered, unable to make decisions for themselves. This case shows that clearly, however it is also true for women who do not experience the same complex layers of marginalisation and vulnerability that this woman did.
Under the Act, it is doctors who make decisions about women's pregnancy. Under the Act and the (leaked but still unpublished) guidelines, it is possible that a woman could have to have her request for an abortion considered by seven doctors and "an interdisciplinary team" before a decision is made. Not by her, but by the medics involved.
This is because the constitutional position in Ireland makes abortion a matter of medicine and not of autonomy, rights, or bodily integrity. Not only does this put Ireland in breach of its international legal obligations (as noted by the UN Human Rights Committee), but it also disempowers and arguably endangers women who are pregnant in Ireland.
While some improvement could be made to the legislation, the core underlying issues cannot be resolved without constitutional change. The Constitution's guarantee of an "equal right to life" for the pregnant woman and the unborn child is such that abortion is only possible in the most extreme circumstances and, even then, this case illustrates how precarious that availability truly is.
It is time to ask ourselves whether abortion belongs in the Constitution at all. There seems to be some support for a change to allow abortion in cases of rape or incest, but a change of this kind would cause deep distress and trauma for women who would be required to declare (and perhaps somehow to prove) their rape to get an abortion.
In moving towards constitutional change we must debate all options and avoid introducing further complexities. We must be open to the possibility of regulating abortion by legislation and not by the Constitution.
A clear constitutional position that makes abortion a matter upon which women decide for themselves is possible, but achieving it will take political leadership and fortitude: two qualities that are now clearly required.
Fiona de Londras is a professor at Durham Law School