DR DARAGH MCGREAL

RECONCILING ABORTION RIGHTS

During this campaign I have been asked to reconcile a commitment to human rights and a belief in abortion rights. Below I attempt to do this.

The 1983 Eight Amendment to the Constitution, which places a woman’s right to life on par with a right to life of the unborn, makes Ireland an exception among comparable countries. Of the 28 EU countries, only Ireland, Malta, and Poland restrict abortion almost entirely. The net effect of the Eight Amendment is that abortion is criminalised and carries a potential 14-year prison sentence, unless the woman's life is at risk. This is an unusual approach without basis in international law.

Treaties that create that law do not grant a right to life to the unborn or abortion rights to women. However, the bodies that monitors these treaties interpret treaty provisions in light of social change. So although abortion is not a right enshrined in treaties, UN bodies are increasingly interpreting access to abortion as a right stemming from other rights. The integration of abortion into reproductive care in almost all western democracies has led UN committees to reflect these trends in their engagement with states. Repeatedly, they link abortion with privacy rights, a right to non-discrimination, and healthcare rights. In specific engagement with Ireland over the past two years, the UN Human Rights Committee called for a constitutional and legislative review of Ireland’s abortion laws, the Committee on Economic, Social and Cultural Rights called for a referendum on the Eight Amendment, and the Committee on the Rights of the Child recommended completely decriminalising abortion so as to advance adolescent health.

Under the European system, the Court has held various positions on this. In 2010, the Court found in A, B and C v Ireland that Article 8’s right to privacy does not directly confer a right to abortion. In 2012, the Court found that Polish restrictions on access to abortion breached rights to privacy (Article 8), liberty and security of the person (Article 5), and to be free from inhumane and degrading treatment (Article 3). In reaching this conclusion, the Court relied on evidence showing that restricting abortion access can cause women physical and psychological pain. This is a logical step: in order for a woman to be able to determine her own effort and success, she needs to be able to determine her own healthcare. By corollary, being able to control her own healthcare helps a woman determine her own engagement in society, and strengthens gender equality.

The counter-argument to all of this favours a foetal right to life. The European Court has largely avoided this as an issue, finding in A, B and C v Ireland that it is “impossible to answer the question whether the unborn was a person to be protected for the purposes of Article 2 [right to life]”. The Court and other bodies are cautious about extending the right to life to the unborn. The Irish Constitution is different, and treats the life of the unborn as if it is the same as the life of the woman. In doing so, the Constitution ignores the fact that women have human relationships, life experiences, and a self-developed morality, whereas a foetus does not. In valuing the life of the unborn and the life of the woman equally, the Constitution ignores the richness of life itself. This experiential richness is what human rights seek to protect. Rather than protecting life, criminalising abortion diminishes the experienced lives of women. By criminalising like this, we stigmatise women irrespective of whether they take any action or not, simply by treating them differently. We distinguish them from men and the unborn and impose a collective morality on a woman’s reproduction. 

This imposition of a collective morality leads to a unique effect in Ireland: we export abortion. At least 10 women a day go to England to have an abortion, whilst others go to other parts of the UK and to the Netherlands. Together, between 4,000 and 5,000 Irish residents travel for an abortion every year. In spite of our laws abortion is available and demand exists. We have abortion, we just don’t talk about it and we push this issue under carpet.

Now, though, we have started to lift that carpet. A recent Amnesty International survey showed that 87% want access to abortion expanded, 72% want abortion decriminalised, 68% call our laws ‘cruel and inhumane’, and 66% feel that our export-oriented approach to abortion is ‘hypocritical’. Irish people clearly want this issue to be debated and developed and international bodies and NGOs are encouraging this too. That debate is entirely necessary and justified in light of our criminalisation and exportation of this issue, in light of European best practice and UN recommendations, and in light of the evidential value of experienced life. I hope that the debate proceeds, maturely, with these contexts in mind.