By now, most Irish women have heard the story of Miss Y; the teenage asylum-seeker pregnant as a result of rape who sought access to a life-saving abortion in Ireland, but was compelled to give birth by C-section instead. Miss Y decided to seek an abortion immediately on learning that she was pregnant. However, the pregnancy had progressed to 25 weeks by the time the baby was delivered. In the meantime, Miss Y had become extremely distressed at the prospect of continuing the pregnancy, and had made attempts on her life. The facts of the case were drip-fed into the public domain during August. Some dates and times are contested and so it is not yet possible to pinpoint the precise reasons for the delay in facilitating Miss Y’s referral for an abortion.
On August 22, the Health Service Executive published the terms of reference for an inquiry into Miss Y’s treatment. The purpose of the inquiry is to establish ‘all of the facts’ surrounding the case. However, the validity of its approach is already in question. In recent days, the draft of the inquiry’s report has been leaked to RTE, and aspects of its tentative conclusions have been discussed on television and radio. At the same time, Miss Y’s legal team have confirmed in the Irish Times that she has not yet been interviewed as part of this inquiry, and they have not seen a copy of any draft report. She may very well refuse to participate in the process when her turn comes.
The PLDPA 2013 (The law passed in the wake of Savita Halappanavar’s death in 2012) .
Miss Y was recently granted refugee status, but at the time she discovered her pregnancy she needed an exit and re-entry visa in order to travel to the UK for an abortion. Her pregnancy counsellor assisted her to apply for the visa, but it was never granted. This is not an uncommon experience for asylum-seeking women. The only route to a legal abortion in Ireland is via the procedures set out in the Protection of Life During Pregnancy Act 2013. Many people think that the Act was introduced to respond to the death of Savita Halappanavar. This is not the case. The Act responds to the 2010 decision of the European Court of Human Rights in A, B and C v. Ireland, in which the Strasbourg Court found that Ireland was obliged to set out clear procedures by which women entitled to access an abortion in Ireland could actually do so. The Act enshrines a narrow version of the 1992 Supreme Court judgment in the X case. Thus, it provides that a woman may legally access an abortion in Ireland where a panel of doctors, acting as part of a multidisciplinary team, certifies that two criteria are fulfilled: (i) there is a real and substantial risk of loss of loss of the woman’s life and (ii) that risk can only be avoided by ending the pregnancy. Other women have been granted terminations under the Act, but Miss Y’s is the first to receive publicity. There is a great deal wrong with the Act, but Miss Y’s case illustrates a number of its most important flaws.
First, the care pathways which lead a woman to apply for certification under the Act are not clear. A woman should be referred in to the certification process by her GP. But if she does not have access to a GP – or indeed, a GP she can trust – it may be some time before she can make herself heard. Women from marginalised backgrounds, teenagers and women who speak poor English are especially vulnerable in this regard.
Second, the Act does nothing to flesh out the very broad ‘X case’ test for access to abortion. At the time Miss Y’s case was decided, the government had yet to publish guidelines on the operation of the Act. These have since been published, but offer very little by way of supplementary instruction to doctors. So, as Savita Halappanavar’s case illustrated, there is still a great deal of ambiguity around the point at which a woman’s life will be found to be at sufficiently serious risk to justify an abortion. This problem may have recurred in a different guise in the Miss Y case. The leaked draft HSE report suggests (rightly or wrongly) that although some of the service providers who met with Miss Y earlier in her pregnancy noted her severe distress, none appreciated that she was ‘actively suicidal’ until much later. The guidelines to the Act use the phrase ‘suicidal intent’ to describe the condition of a woman entitled to an abortion – suggesting, perhaps, that the woman must be able to evidence a determination to kill herself before she can receive abortion care.
Third, the Act, following the X case, says that a woman may not access an abortion unless it is the ‘only’ means to save her life. The Act, and its accompanying guidelines, also emphasise that the doctor must preserve unborn life insofar as it is practicable to do so. Where a pregnancy is in its second trimester or later, these two provisions are likely to combine to create a ‘viability’ barrier to abortion access. The published guidelines specifically anticipate that a woman whose pregnancy is viable is likely to be required to submit to early delivery by induction or C-section, as appears to have occurred in Miss Y’s case. No Irish court has considered a case about the termination of a viable pregnancy, and so the legal basis for these instructions is doubtful. In addition, we do not know whether the Act might be read to require that a woman’s pregnancy be prolonged for a number of weeks, until it reaches viability.
Finally, it seems clear that the Act’s intense focus on the preservation of unborn life, and on the facilitation of live birth where possible, means that women’s other healthcare needs are likely to be compromised. In particular, doctors are left with little guidance on how they should proceed where a woman will not consent, for instance, to a proposed early delivery. In Miss Y’s case, we know that High Court orders were sought to facilitate her hydration, and the C-section, because she had refused to co-operate with the course of treatment. There is a right of appeal – to a further panel of doctors – from a refusal of certification under the Act, but Miss Y did not use it, and there are questions about how accessible it is to a woman who is likely to be seriously ill or distressed. Ultimately the orders obtained in the High Court were not used. The circumstances by which she finally gave her consent are not known. The HSE inquiry will not tell us anything about the legal arguments advanced in the High Court on behalf of the state. There is a reporting embargo on the case itself, and we have scant reported case law on compelling medical care for non-compliant pregnant women. At a time when Irish maternity services are under intense scrutiny, following the deaths of Savita Halappanavar, Dhara Kivlehan, Bimbo Onanuga, Jennifer Crean and Tania McCabe, Miss Y’s case underscores how little space there is for women’s autonomy in a system geared to the protection of life, even at the cost of health.
Where to now?
It is clear from Miss Y’s case that the possibility of obtaining an abortion in Ireland remains very limited. Women who can travel will continue to do so. Women who find themselves needing an abortion in later pregnancy are likely to be wary of the possibility that they will be compelled to give birth as Miss Y was. Meanwhile, a strong coalition of groups is campaigning for the repeal of the 8th Amendment, which since 1983 and via the X case, has come to govern every case of maternal-foetal conflict. The current government argues that there is no appetite for a referendum. It has also indicated that it will not be moving to amend the new Act at least until its operation comes up for review in June.
That said, newspaper opinion polls and large crowds at pro-choice events indicate that a growing majority of Irish people accept that the abortion law must be liberalised to some degree. Repealing the 8th Amendment would open the discursive space in which to do so. Whatever alternative interpretations of the Amendment are possible in theory, they have not been translated into practice. We may one day see a constitutional challenge to the new Act, but this is unlikely and unpredictable given the burdens which costs, delay and procedure impose on pregnant or ill litigants. Repeal is the best route to constitutional change. The recent constitutional amendment on children’s rights and the forthcoming referendum on marriage equality both indicate a constitutional norm of using referenda to correct moribund interpretations of the constitution.
Once repeal is achieved, our attention must turn to the question of new abortion legislation. Opinion polls suggest strong public support for access to abortion on the grounds of rape, incest, fatal foetal abnormality and serious risk to physical health.If the current Act is anything to go by, the procedures put in place to regulate such conservative new grounds are likely to be a deterrent to access. Feminist groups, meanwhile, hope for something much broader, including removal of the 14 year penalty for the office of ‘destruction of unborn life’ and the possibility of ‘free, safe and legal’ access to abortion without restrictive grounds. (The Abortion Rights Campaign, Women Helping Women, RealProductive Health, ROSA, and Doctors for Choice are the ones to watch). Feminist campaigning around abortion rights must aim at human rights oriented legislation which allows for the broadest possible period of legal access to medical abortion on request, followed by the broadest possible grounds for access thereafter. Some feminists would prefer that we not legislate for abortion at all, but rather allow doctors and women to work out their own position in the space left by decriminalisation and repeal. However, given the conservatism of the medical profession in relation to abortion access, and bearing in mind the disproportionate power of anti-abortion groups to intimidate women, legislation will be required to empower and protect pregnant women and abortion care providers and to clarify their rights.
london irish feminist network 