New legal challenge to abortion laws looms
Susan Mitchell The Sunday Business Post
The HSE’s decision to call a halt to the practice of funding abortions abroad for Irish women, when the foetus has a severe abnormality, may give rise to legal action.
The issue may have conveniently disappeared from Ireland’s political agenda, but the state’s complex laws on the right to life of the unborn look set to come under renewed scrutiny.
About 120,000 Irish women have had abortions in the last 30 years. Yet, in a country obsessed with legal debates about abortion - five referendums have been held on the subject in 20 years - the state has failed to provide clear legislative guidelines.
Now, the possibility of yet another legal challenge looms large, with the Irish Family Planning Association (IFPA) confirming it has sought legal advice with a view to instigating proceedings over recent decisions made by the Health Service Executive (HSE).
The most recent complaint concerns the HSE’s sudden refusal to cover the costs incurred by women whose foetuses have severe abnormalities, when terminating their pregnancy abroad.
The IFPA said the state had previously, albeit quietly, allowed women in such circumstances to use the E112 form - which provides refunds for some hospital treatments abroad which are not available in Ireland - to procure an abortion abroad. The state later refunded the costs, which can reach €8,000, according to the IFPA.
As far back as 2002, the Irish Medical Times reported the use of this form to access abortion. Dr Juliet Bressan of Doctors for Choice, who was the source of the story, urged women to apply through the scheme, arguing everyone deserved equity of healthcare regardless of their ability to pay.
Since then a number of women have successfully applied, according to the chief executive of the IFPA. It has been reported that women whose foetuses had serious congenital abnormalities that were incompatible with life outside the womb had their abortions abroad, using the E112 form.
‘‘We don’t understand what has changed,” said Niall Behan, chief executive of IFPA.
When contacted by The Sunday Business Post, a staff member at the HSE office that deals with E112 forms, said the form ‘‘did not apply to procedures that are illegal in Ireland’’. The HSE press office refused to respond to repeated questions from this newspaper.
Ireland has already witnessed a number of cases taken against women’s clinics and students; a series of referendums; and litigation before the Irish and European courts (see below).
Jennifer Schweppe, of the University of Limerick School of Law, said that ‘‘whether you are pro-life or pro-choice’’, the state is failing to fulfil its constitutional duty in relation to abortion laws.
Schweppe, who organised a recent conference on the subject, said: ‘‘It is simply inexcusable that, 25 years after the constitutional amendment, 16 years after the X case and 11 years since the C case, there is still no legislation in place and we rely on an act from 1861 to govern the law on the termination of pregnancies in this state.
‘‘This problem was highlighted in the recent Miss D case. Without clear legislative guidelines, doctors, lawyers and healthcare workers simply do not know what to do when assessing the sometimes competing rights of the mother and the unborn child.”
The legal action being considered by the IFPA echoes a separate case taken in 2006 by an Irish woman known only as ‘D’. D, already a mother of two children, became pregnant with twins at the end of 2001, shortly before the most recent referendum on abortion, which was narrowly rejected following intense public debate.
In the 14thweekof her pregnancy she had an amniocentesis test, which showed that one foetus had stopped developing at eight weeks and the other suffered from a severe and lethal genetic condition with an average life expectancy of six days. She decided she did not want to carry a dead and a dying twin to term and had an abortion in Britain.
D took a case to the European Court of Human Rights, claiming that her rights under the European Convention on Human Rights had been violated, specifically her right to respect for her private and family life and her right not to be subjected to inhuman and degrading treatment. It ruled that D had not exhausted every legal avenue in Ireland and was therefore not eligible to go to a full hearing before the European Court.
Although it received little attention at the time, the court based its ruling in large part on the state’s own argument before it - that D had a good prospect of succeeding had she brought an application to the Irish courts for a legal abortion in Ireland.
Should the IFPA - or indeed any of the women affected by recent HSE decisions - proceed with legal action, it will reopen the highly charged debate on abortion in Ireland. Before the 2002 referendum, Taoiseach Bertie Ahern called for a measured debate on the subject, but the colourful Dail debates that preceded the March referendum suggested that was highly optimistic.
The Ceann Comhairle was forced to suspend the house after deputies swapped insults and catcalls. Fianna Fail TD Dick Roche was accused of labelling Labour’s Liz McManus ‘‘pro-abortion’’. Fine Gael’s Nora Owen, a former justice minister, responded that Roche was ‘‘just a thug’’, while Labour’s Pat Rabbitte added that Roche was a ‘‘slithering political lizard’’.
The divisions in the Dail reflect the political, religious and social divide throughout the country. The depth of the differences have been manifest, but if a recent opinion poll - conducted by TNS/mrbi and published by the campaign group Safe and Legal in Ireland - is anything to go by, the electorate may well be softening in its stance.
When asked in which circumstances abortion should be legally available in Ireland, the vast majority of those questioned (82 per cent) agreed that it should be available when the pregnancy seriously endangered the woman’s life.
Three-quarters agreed it should be legal when the foetus cannot survive outside the womb (as in Miss D’s case); and 69 per cent thought it should be permissible where pregnancy results from rape, or where the pregnant woman’s life is at risk due to a threat of suicide.
A history of major abortion-related legal actions in Ireland
The X Case
In February 1992, the High Court granted an injunction preventing a pregnant 14-year-old rape victim from leaving Ireland to have an abortion in England. Amid a massive public outcry, the Supreme Court overturned that decision two weeks later.
The girl had been raped by a neighbour and became pregnant. She told her mother of suicidal thoughts because of the unwanted pregnancy. The matter came to the attention of the then Attorney General, Harry Whelehan, when the Gardai were consulted about getting DNA samples in anticipation of criminal charges. Whelehan sought an injunction under Article 40.3.3 of the Constitution of Ireland preventing her from travelling abroad for an abortion. The High Court granted that injunction, but the Supreme Court overturned that decision.
The Supreme Court ruled that ‘‘if it is established . . . that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible’’.
Miss X had a miscarriage shortly after the judgment, and before an abortion could be carried out. The case resulted in three proposed constitutional amendments on the issue of abortion. Referendums on the subject were held in November 1992, on the same day as a general election.
The Miss C Case
In 1997, the then Eastern Health Board sought permission from the District Court to facilitate a suicidal 13-year-old girl, who was pregnant as a result of a brutal rape, to have an abortion in Britain. She was in the care of the Eastern Health Board at the time.
The original proceedings related not to the abortion itself but to her leaving the jurisdiction while subject to a care order. The District Court gave the young girl the go-ahead, but the matter became more complex when her parents, originally supportive of her decision, made an application to the High Court appealing that decision.
The matter was settled in the High Court, where the judge ruled that, as Miss C was likely to take her own life if forced to continue with the pregnancy, she was entitled to travel to Britain for an abortion, by virtue of the Supreme Court judgment in the X Case of 1992.
The Miss D Case
In May 2007, the High Court ruled that there was nothing to prevent a 17-year-old girl in the care of the Health Service Executive from travelling abroad for an abortion.
The girl, known as Miss D, was four months pregnant with a child who could not survive after birth.
The judge said that he firmly and unequivocally held the view that there was no statutory or constitutional impediment to Miss D travelling for the purposes of terminating her pregnancy, if that was what she wanted. He said the case was not about abortion, but about the right to travel.
Miss D said she made the decision to terminate the pregnancy after she discovered the foetus she was carrying was suffering from anencephaly, a condition that caused its brain not to develop properly. Newborn babies with that condition have a maximum of three days to live.
When Miss D revealed her plans to a social worker, the HSE asked the Gardai to prevent her from travelling, prompting Miss D to take the case.
The judge said it was likely that the HSE had tried to shoehorn her case into the grounds set out in the X Case – that abortion is only legal if the mother’s life is at risk or if she is suicidal. He said it was likely the HSE had done this to avoid having to make any public or controversial decision.