Speech by Ivana Bacik Thirty-sixth Amendment of the Constitution Bill 2018

28 March 2018

With Alibhe Smyth

I welcome the Minister and welcome this historic debate, in which at last after 35 years – if this Bill is passed - we are giving the Irish people the right to vote on whether or not to retain the Eighth Amendment, Article 40.3.3, inserted in 1983 to make Irish law on abortion among the most restrictive in the world

Ours is in the only jurisdiction in which the Constitution provides a guarantee that the ‘unborn’ have a right to life equal to that of the ‘mother’. This text has cast its shadow over an entire generation of women in Ireland.

I am under 50, and was too young to have voted 35 years ago; but have lived all my adult life under its chill. My daughters are now growing up under the same chill. That chill has been felt in a whole series of difficult cases over those decades.

In the 1980s, there were a series of ‘information’ cases, taken by a body calling itself SPUC (Society for the Protection of the Unborn Child) against pregnancy counsellors and students’ union officers to prevent them from providing information on abortion to pregnant women; I was one of the student officers taken to court and threatened with prison by SPUC back in 1989/90.

The legal position on information was altered in November 1992 by way of referendum, but by then however we had seen a far more difficult case, the 1992 X case, where a 14 year old child, pregnant as a result of rape, was denied the right to travel abroad for an abortion by the High Court; the Supreme Court overturned this decision on the basis that the girl was suicidal so that her right to life was directly threatened by the continued life of the unborn.

In March 2002, another referendum was put to the people to reverse the decision in the X case by ruling out suicide risk as a ground for abortion. However, the referendum was ultimately defeated—for a second time, the Irish people had voted to uphold the X case test.

A series of other hard cases followed over many years – such as the important ECtHR decision in 2010 in A, B & C v Ireland. The ECtHR unanimously ruled that Ireland's failure to implement the existing constitutional right to a lawful abortion in Ireland when a woman's life is at risk, as the applicant C’s had been, had violated her rights under Article 8 of the ECHR, which guarantees the right to privacy.

Then, tragically, in October 2012, a young woman called Savita Halappanavar died while undergoing a miscarriage at Galway University Hospital. The lack of legal clarity as to when life-saving abortion could be carried out clearly contributed to the failures in her medical treatment.

In the aftermath of this tragedy, the Protection of Life During Pregnancy Act 2013 (the ‘2013 Act’) was passed to provide for the procedure to be followed whereby a termination of pregnancy may be carried out by doctors to save a pregnant woman’s life.

Since the passage of the Act, Department of Health figures reveal that, as of July 2017, 77 terminations of pregnancy had been performed under the 2013 Act in order to save women’s lives – hardly the ‘floodgate’ predicted by those who opposed it.

The provisions of the 2013 Act came into political focus in respect of one individual case in August 2014, that of Ms Y, when it was revealed in the media that a young asylum-seeker with a crisis pregnancy had been denied an abortion despite having been found suicidal in accordance with the 2013 Act - the baby was delivered at about 25 weeks’ gestation by Caesarean section.

In December 2014, another tragic case came to light, with the report that a young pregnant woman, despite having been pronounced dead, was being kept alive by a hospital against her family’s wishes because of concerns to preserve the right to life of the 15-week old foetus that she carried.

After so many tragic cases, political momentum is growing, both nationally and internationally, for a referendum to repeal the Eighth Amendment. There is now clear public support for legislation allowing abortion on a wider range of grounds. This was evident in the 2016 report of the Citizens’ Assembly; and more recently that of the Oireachtas Committee on the Eighth Amendment. The Committee recommended repeal of the Eighth Amendment and the introduction of legislation permitting abortion for up to 12 weeks without need for specific indications; and beyond that limit, only on grounds of risk to life, risk to health or fatal foetal abnormality.

The Committee ruled out the grounds of socio-economic reasons or non-fatal foetal abnormality.
The Committee gave three key reasons for recommending repeal:

1. The impact of the Eighth Amendment in the provision of services to pregnant women, particularly relating to the timing of critical decision-making in saving a woman’s life;
2. Continuing and ongoing breach of Ireland’s international human rights obligations as evidenced in a number of cases;
3. The practical reality that thousands of women are accessing abortion each year either legally through travel to the UK and abroad, and illegally by taking the abortion pill.

I, and my party, Labour, fully support the report’s recommendations – we are united behind them. I want to commend the members of the Committee for their considered engagement with the immense body of evidence presented to them, and in particular Chairperson Senator Catherine Noone and Labour’s Jan O’Sullivan. I want to focus on two of these issues: medical evidence; and international legal evidence.

On the first reason; the preponderance of medical evidence to the Committee was clearly in favour of repeal. The Committee heard expert evidence from 20 leading health experts and bodies, including two current and two former masters of Irish maternity hospitals; and two national medical professional bodies (Irish College of General Practitioners; Institute of Obstetricians and Gynaecologists).

Doctors told of their frontline experiences – such as seeing a woman bleeding as she miscarried, but being unable to intervene legally until there were sure there was no foetal heartbeat because of the Eighth Amendment; the issue in the tragic case of Savita Halappanavar.

These experiences formed the backdrop for the medical consensus that the Eighth Amendment is the central barrier to the provision of best practice reproductive healthcare in Ireland and should be removed. They said that the current law with its stringent criminal sanctions is overly restrictive and prevents doctors from being able to provide the highest standard of healthcare to pregnant women.

The Committee also noted the practical reality that abortion is happening in Ireland anyway.
The criminalisation of abortion has not stopped women having abortion, but has made abortions unsafe, mainly through unregulated abortion pills purchased online and taken without medical supervision.

At follow-up briefings here in Leinster House we have heard from Dr Catriona Henchion of the IFPA, Dr Peter Boylan and Dr Cliona Murphy. They told us that illegal abortion is now becoming the norm in Ireland, with estimates that up to 3,000 women may take abortion pills each year in Ireland - 1,748 Irish residents contacted one abortion pill provider, Women on Waves, in 2016 – despite the fact that intentional destruction of unborn life remains a criminal offence in Ireland punishable by up to 14 years imprisonment. This figure is additional to the 3,265 women who had abortions in England and Wales in 2016, and who gave Irish addresses.

So we know about 5,000 Irish women every year are having abortions –since 1983, over 160,000 women have made the journey for abortion abroad. As the Committee noted, abortion is an Irish phenomenon – the Eighth Amendment has not prevented abortion, merely compounded the crisis of a woman’s crisis pregnancy by forcing her to travel or face the threat of criminal prosecution.

The Committee also referred explicitly to the evidence they had heard as to the critical factor of the ‘continuing and ongoing breach of Ireland’s international human rights obligations’ represented by Irish abortion law.

They referred specifically to the two recent cases of Amanda Mellet and Siobhan Whelan. These cases each concerned diagnoses of fatal foetal abnormality; both women had had to travel to England in order to terminate their pregnancies following these devastating diagnoses. They each applied to the United Nations Human Rights Committee for a finding that Ireland had breached their rights under the International Covenant on Civil and Political Rights (ICCPR) for not providing them with access to abortion in their own jurisdiction in these circumstances.

The Committee ruled in each of their cases, in June 2016 and again in June 2017, that Ireland had violated Article 7 (right against torture, inhumane or degrading treatment), Article 17 (right to privacy) and Article 26 (right to non-discrimination) of the ICCPR, and called for the government to change the law to allow for abortion in cases of fatal foetal abnormality.

In Mellet, the Committee found that

By virtue of the existing legislative framework, the State .. subjected the author to conditions of intense physical and mental suffering. The author, as a pregnant woman in a highly vulnerable position after learning that her wanted pregnancy was not viable ... had her physical and mental anguish exacerbated by: .. the need to choose between continuing her non-viable pregnancy or traveling to another country while carrying a dying foetus, .. the shame and stigma associated with the criminalization of abortion of a fatally ill foetus; the fact of having to leave the baby’s remains behind and later having them unexpectedly delivered to her by courier..

So there are many imperatives to hold this referendum; medical evidence; the reality of the abortion pill; our international human rights obligations; but above all the need to protect women’s health and to ensure that we as legislators can provide the necessary legal framework for a caring and compassionate law on abortion provision.

I hope that this year, 2018, the centenary of women’s suffrage in Britain and Ireland, will be the year that we finally win the battle for reproductive rights in Ireland. The Amendment, passed in 1983, has cast its shadow over an entire generation of women in Ireland. Now let’s achieve repeal