The Big Question: After decades of controversy, could abortion become legal in Ireland?
By David McKittrick, Ireland Correspondent, The Independent
Friday, 11 December 2009
Why are we asking this now?
This week three women mounted a legal challenge at the European Court of Human Rights in Strasbourg, arguing that the Irish Republic's strict abortion laws violated their rights. Specifically they claim that they had to go abroad for abortions and in doing so their health was put at risk. They say this amounted to inhumane treatment. Two of the women are Irish while the third is a Lithuanian living in Ireland. One was an unemployed long-term alcoholic who lived beneath the poverty line and was trying to regain custody of her four children when she became pregnant. Another was at risk of an extra-uterine pregnancy while the third was recovering from cancer and feared a relapse. The women are said to have borrowed money from friends and a money-lender to travel abroad for their abortions.
What do the lawyers say?
A statement on their behalf said: "All three women complain that the impossibility for them to have an abortion in Ireland made the procedure unnecessarily expensive, complicated and traumatic. In particular, that restriction stigmatised and humiliated them and risked damaging their health and, in one applicant's case, even her life." Their case is that Irish abortion law breaches several articles of the European Convention on Human Rights, including the rights to life, privacy and family life, and further represents discrimination against women.
What do their supporters and opponents say?
The Irish Family Planning Association, which supports the case, declared: "This is hugely significant for reproductive rights in Ireland. The fact that Ireland's draconian laws on abortion have been put under the spotlight is a landmark. They are totally out of step with those of its European neighbours. Women and girls do not give up their human rights when they become pregnant." Pro-life campaigners responded by accusing the Family Planning Association of "creating unnecessary fears about women's health in an attempt to have abortion foisted on Ireland by a European court."
How have the Irish authorities responded?
The Irish government sent a strong legal team to Strasbourg, headed by Attorney-General Paul Gallagher, to contest the women's challenge. He characterised the claim that their health was threatened as "a significant attack" on the Irish health service and the treatment, advice and support it offered, including aftercare and post-abortion counselling.
He asserted that Irish laws – which have forbidden abortion in almost every case for a century and a half – were based on "profound moral values deeply embedded in Irish society." He said anti-abortion legislation had been endorsed in three separate referendums.
Are there any abortions in Ireland at the moment?
They are extremely rare. But each year thousands of Irish women make the journey abroad, mainly to British clinics, to have their pregnancies terminated. Last year at least 4,600 did so, and over the decades an estimated 140,000 have made the trip. A recent Trinity College Dublin study concluded that almost one in 10 Irish pregnancies ends in an English abortion clinic. This cross-channel traffic has long been regarded as a fact of life.
Does this case have global implications?
Yes. Abortion is a highly emotive issue in many countries and in the US, for example, it is a highly important political issue. In some countries, such as Britain, termination is readily available while in others the law allows it in cases such as rape or serious risk to the woman's life or health. European court rulings are not always automatically and fully put into effect but, representing as it does 47 member countries of the Council of Europe, its judgments carry substantial weight.
Why is Ireland so strongly anti-abortion?
It always has been, with the right of the unborn child to life enshrined in the constitution of this overwhelmingly catholic country. Over the years church authority has been in decline, largely because of the child abuse scandals. The emergence of a more secular and cosmopolitan society has brought a marked relaxation in laws and general public acceptance of issues such as divorce, homosexuality, contraception and co-habitation rather than marriage. But abortion has always been regarded as a special case, a fraught issue which has been a particular battlefield between liberals and conservative elements which touches the rawest of nerves.
Why have a referendum?
Making important changes to the anti-abortion measures means changing the constitution, and that means having them approved in a referendum. Recent decades have been littered with bitter abortion controversies and a series of
referendum votes, some of them intensely hard-fought and traumatic. None of the various referendum campaigns was fought on the basis of legalising abortion, instead centring on amendments which made often confusing adjustments to legal wording. As a result the exact status of the law has lacked clarity, although the general sense that the authorities frown on abortion has been clear enough.
Referendums have often served to show the depth and starkness of divisions. One in 2002, which aimed at further tightening the law, was rejected by the narrowest of margins – 50.42 per cent to 49.58 per cent. Outcomes such as this have caused many politicians to steer away from an issue on which no consensus seems possible.
Have cases in the courts had an effect?
Two cases over the years have attracted great attention and caused national soul-searching. In one a 14-year-old girl who had been raped by a neighbour was initally prevented from travelling to England for an abortion. This was overturned. In another a health authority sought to prevent a 17-year-old girl, who was four months pregnant, travelling to England to abort a foetus suffering from a brain condition which meant it could live for only a few days after birth. A court gave her permission to travel.
What happens if the court demands Ireland legalise abortion?
The result could be uproar. Although the Court is entirely separate from the EU, the Irish public has recently shown itself to be in two minds about Europe in general. During a referendum campaign on European issues earlier this year, centring on the Treaty of Lisbon, Irish bishops assured their flock that the Treaty "does not undermine existing legal protections in Ireland for unborn children." But anything that seemed like a directive from another part of Europe on such a contentious issue would create major controversy. Enacting such a directive would presumably involve a referendum, and referendum campaigns are often bitter and divisive.
More to the point, they have often proved unpredictable. Ireland is a country in deep trouble at the moment, struggling to cope with a shocking economic downturn and problems such as the church abuse scandal. Most of its politicians would almost certainly shy away from the abortion issue if they possibly could, preferring to continue with the present approach, even though that would allow drift and confusion to prevail.
Would legalising abortion benefit Ireland?
* It would show Ireland as more secular, shrugging off the dominance of the Catholic church
* It would end the trail of pregnant women travelling to England for abortions
* It would de-criminalise abortion, gradually removing the stigma attached to it in Ireland
* Legalising it would probably result in more abortions, putting Ireland out of line with other Catholic countries
* Introducing abortion would fly in the face of more than a decade of Irish tradition and culture
* Legalising it would create yet more division in a country which already has other deep problems