This week, Ireland made international headlines as the governing political party announced a date-range for a referendum on the Eighth Amendment to the Irish Constitution, the provision which recognizes a fetal right to life, and places it on an equal footing to the right to life of the woman carrying the fetus. The move wasn’t a surprise to Irish voters – the referendum had been promised by Taoiseach Leo Varadkar since his election last June, and comes after decades of protest and organization by a multitude of activist groups, protesting what they view as an archaic, unworkable and agency-destroying constitutional provision that has led to the exporting of abortion care for Irish woman to the UK and Netherlands, and the deaths of women in Ireland. The implications of the Eighth Amendment for access to abortion care are obvious enough – it is illegal in almost all cases. Less prominent has been the pronounced effect that this constitutional ban on abortion has had for medical treatment and care in pregnancy, where the doctor involved is, constitutionally speaking, treating two patients with equal rights to life.
The only scenario in which an abortion in Ireland is legally permissible is in cases where the woman’s life is at risk from the continuance of the pregnancy. In all other cases, including cases where the fetus is non-viable, where the pregnancy is a result of rape or incest, or where the fetus will risk the health of the woman, but not her life, abortion is illegal. Criminal punishment for illegally procuring an abortion runs to a prison term of 14 years, which includes doctors who provide illegal treatment. Women who can afford it travel to the United Kingdom to avail of abortion services there, but doctors in Ireland cannot legally refer their patients to clinics in the UK, even in cases where continuing the pregnancy risks the health of the woman. It is unknown how many women have ended a pregnancy with illegal, imported abortion pills.
‘The Eighth’ reaches into almost all aspects of choice in pregnancy, with the effects on healthcare provision being particularly pronounced. The national Health Service Executive’s ‘National Consent Policy’ explicitly recognises that the Eighth Amendment introduces significant legal uncertainty around a pregnant woman’s right to refuse consent to medical treatment in pregnancy. A survey of 2836 women by AIMS Ireland in 2014 found that less than half of all respondents said they were given the opportunity to refuse consent to tests, procedures, and treatments during their pregnancy. It’s not clear from the wording of the constitutional provision how doctors are to adjudicate the line of permissibility between ‘danger to health’ and ‘danger to life’ that would make an illegal abortion lawful and avoid criminal prosecution. The chilling effect of this has had fatal consequences. The death of Savita Halappanavar in a Galway hospital in 2012 illustrates this all too well. Despite a hospital concession that a miscarriage was inevitable she was refused a termination on the basis that the fetus still had a heartbeat. She died of septicaemia three days later. Multiple medical experts have attested that had she been granted a termination when she requested it, she would likely have survived. More chillingly, there is a medical consensus that Ms. Halappanavar’s condition deteriorated to the point that her life was at risk, and it would have been legally permissible, even under Ireland’s stringent laws, to perform an abortion. The legal uncertainty surrounding the application of the Eighth Amendment, the attendant fear of prosecution for miscalculating risk, and the chilling effect of the ambiguous law all contributed to her tragic death.
The state of the law is caught in a bizarre loop where the limits of the Eighth Amendment have been decided through a series of cases taken by, or against the Irish Health Service Executive in very hard cases, where women are seriously ill, but not quite dying yet; where the woman is brain-dead but still carrying a foetus with a heartbeat; where a female asylum seeker, suicidal as a result of a pregnancy following war rape went on hunger strike at the Irish State’s refusal to provide her with an abortion, and was force-fed. The patchwork regime which governs how women may access abortion care in Ireland has paralysed the medical profession, and conflicting conceptions of how fetal life is characterized and to be protected militates against medical discretion even in the cases where the letter of the law indicates that the threshold for being entitled to an abortion is met. In a particularly disturbing example, a girl who approached her doctor earlier this year to obtain an abortion was instead sectioned under the national Mental Health Act, and transferred to a mental health unit when she and her mother believed she was being transferred to a Dublin hospital for an abortion on the basis that her life was at risk from suicide, a ground nominally protected by the law. According to the Irish Abortion Support Network “We’ve had cases where women who have attempted suicide—in two cases, twice attempted suicide—were deemed not suicidal enough to obtain an abortion in Ireland under the Protection of Life During Pregnancy Act.”
Hemmed in by a vague provision aimed more at satisfying the lofty moralistic demands of the conservative and religious faithful than providing any any legal clarity, doctors have failed to reach a balance that ought to have been reached by the legislature decades ago. The next half year will reveal whether attitudes have changed sufficiently to dislodge the Eighth Amendment’s place in medical care in Ireland, and in the national consciousness.