Monday, May 07, 2007

A Brief Summary Of Abortion Law In Ireland.

Abortion Law in Ireland - a brief summary

- 2003 The Labour Party issued its policy position on abortion through the Wrynn Report. The 20th Anniversary of the 1983 abortion referendum was marked by an Alliance for Choice event which saw a broad coalition calling for the repeal of article 40.3.3 from the Constitution. The Crisis Pregnancy Agency, having suffered a cut in funding earlier in the year, launched the State's first strategy to address the issue of crisis pregnancy (November 12th).

- 2002 The Twenty-Fifth Amendment of the Constitution (Protection of Human Life in Pregnancy Bill) 2002. On the 6th March this regressive bill was defeated. Turnout was 42.89% of which 49.58% voted yes while 50.42% voted no. The status quo continues.

- 2001In October after a five year consultation the government announced plans to hold a referendum to reverse the 1992 X case ruling. At the same time the government announced the establishment of the Crisis Pregnancy Agency.Medical Council Review of "A Guide To Ethical Conduct And Behaviour" - Submission From The Irish Family Planning Association, 2002. Available on request from info@ifpa.ieIFPA Policy Submission to the Crisis Pregnancy Agency 2002. Available on request from info@ifpa.ieThe Irish Journey – women's stories of abortion. A ground breaking book detailing authentic first hand accounts, by Irish women, of their experiences of abortion. (if you wish to purchase copies of the publication, please print out the order form)Always and Never - IFPA Submission to the All Party Oireachtas Committee on the Constitution in response to the Green Paper on Abortion.Facing up to reality - an IFPA submission to the Interdepartmental Working Group on Abortion.

- 2000All Party Oireachtas CommitteeOrganisations and individuals were invited to address the Committee in May, June and July in a series of public oral hearings. Medical practitioners were heard first, followed by special interest groups and then faith groups. This process has resulted in a thorough discussion of the complexities surrounding the abortion issue in Ireland. However, the views of women who have direct experience of Irish abortion were not heard.

- 1999Green Paper on AbortionThe government's Green Paper on Abortion was published in September 1999. Seven possible options were outlined.
These were:
Absolute Constitutional Ban on Abortion.
Amendment of the Constitutional Provisions so as to restrict the Application of the X Case.
Retention of the Status quo.
Retention of the Constitutional Status quo with Legislative Restatement of the Prohibition on Abortion.
Legislation to regulate Abortion in circumstances defined in the X Case.
Reversion to the pre-1983 position.
Permitting Abortion on grounds beyond those specified in the X Case:
Risk to Physical/Mental Health of Mother
Abortion for Women Pregnant as a result of Rape or Incest
Congenital Malformations
Abortion for Economic or Social Reasons
Abortion on Request.
The All Party Oireachtas Committee on the Constitution then invited written submissions on the basis of the Green Paper, to be received by 30th November.

- 1998 Abortion Working GroupThe government responded to the C case by establishing an 'Inter-Departmental Working Group on Abortion' supervised by a cabinet sub-committee. Submissions closed on March 28 and a Green Paper was promised for 'late summer 1998'.

-1997 (November) The C Case-A 13 year old girl, pregnant as a result of rape, and in the care of the Eastern Health Board was the subject of proceedings in the District Court as she sought permission to leave the state for the purposes of availing of a lawful abortion in England. The original proceedings related not to the abortion itself but to her leaving the jurisdiction while subject to a care order. That matter became more complex when her father, originally supportive of her decision, spoke in the media and came under the influence of extreme anti-abortion groups. Ultimately the matter was settled in the High Court.Mr Justice Geoghegan ruled that as Miss 'C' was likely to take her own life if forced to continue with the pregnancy, she was entitled to an abortion in Ireland by virtue of the Supreme Court judgement in the 1992 X Case. Since an abortion in this case would not be unconstitutional within this State then she could leave the State in order to have it. The main legal significance of this judgement is that another person, the subject of a care order, who may not be at risk of suicide, could be prevented from leaving the State to avail of an abortion and thus be forced to continue with an unwanted pregnancy.The main political significance is that it demonstrated that the failure of successive governments to enact legislation, following the X case, had led to another similar harrowing court ordeal for a young victim of rape. Opinion Polls showed a high level of support for Miss 'C's right to make this choice for herself. More crucially it was now clear that if the government had succeeded in its 1992 attempt to limit the scope of X case judgement so as to exclude the risk of suicide as a ground for abortion within the State, Miss C would have been forced to continue this pregnancy.

- 1997 (March) The Students' Unions AppealThe Supreme Court lifted the injunctions against the students unions. Two conflicting reasons were given for this decision:
Denham and Keane JJ. said that the 1988 Supreme Court decision had been wrong, as it failed to give adequate weight to the right to life of the 'mother';
Hamilton and Blayney JJ. said that the injunctions were originally valid, but due to the change in law in Nov 1992, and the subsequent Regulation of Information Act, they could no longer be upheld. The fifth judge, Barrington J. gave an ambiguous judgment, but also declared that the injunctions should be lifted.
The anti-abortion campaign continued demanding a Referendum to outlaw 'direct' abortion absolutely.

- 1996 The Constitution Review GroupThe CRG issued their Report on the Constitution, recommending that legislation should be introduced to implement the X judgment, specifying under what conditions abortion could be carried out lawfully in Ireland. This recommendation was rejected by the anti-abortion campaign.

- 1995 Regulation of Information ActPassed to lay down the conditions under which abortion information can be provided. The Supreme Court ruled that it was constitutional, as it protected both the rights to life of the 'unborn' and of the 'mother' under Article 40.3.3. The Court held that unspecified rights of the 'unborn' could not be invoked to counter the clearly expressed will of the people in the 1992 Referenda.

- 1992 (Nov) The Travel and Information ReferendaTwo Referenda were passed, amending Article 40.3.3 to safeguard the rights to travel and to information. A third Referendum was defeated. It would have limited the effect of the X case, by restricting the test to cases where the risk to the pregnant woman's life was due to an illness or disorder, and not to a risk of suicide.Travel "Subsection 3 of this section [Article 40.3.3] shall not limit freedom to travel between the State and another state."Information "Subsection 3 of this section shall not limit freedom to obtain or make available, in the State, subject to conditions as may be laid down by law, information relating to services lawfully available in another state."Abortion "It shall be unlawful to terminate the life of an unborn unless such termination is necessary to save the life, as distinct from the health, of the mother where there is an illness or disorder of the mother giving rise to a real and substantial risk to her life, not being a risk of self-destruction."

- 1992 (Oct) The European Court of Human RightsIn an appeal taken by Open Door Counselling and the Well Woman, the ECHR ruled that the ban on abortion information was in breach of Art. 10 of the European Convention on Human Rights, which guarantees freedom of expression. It was 'overbroad and disproportionate' since it prohibited them from providing information to everyone, including women who came under the X test. This decision was not followed by the Supreme Court in 1993, which upheld the injunctions despite a strong dissent by Denham J.

- 1992 (Feb) The X CaseCostello J. granted an injunction in the High Court preventing a pregnant 14-year-old rape victim from leaving Ireland to have an abortion in England.
Amid public outcry, the Supreme Court overturned his decision two weeks later to allow her to go, ruling 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."Here, the Court held that there was a real and substantial risk of suicide if the pregnancy continued; thus the termination was permissible, even in Ireland. However, where no such risk existed, both information and possibly travel could be prevented in the interest of safeguarding the right to life of the 'unborn'. The Government then entered a Declaration to the Protocol, saying that they would not use it to restrict travel or information.

1986 - 1991 The Information CasesSPUC took a series of cases against the Dublin Well Woman, Open Door Counselling and three students' unions, to stop them providing women with information on where and how to obtain an abortion.
In 1986 Hamilton J. declared that the provision of such information was in breach of Article 40.3.3, as it undermined the right to life of the 'unborn'. In 1988 the Supreme Court confirmed his decision.
In 1991 the European Court of Justice ruled that, although abortion is a service under EC law, the students' unions could be prohibited from distributing information on it, because they had no financial link with the clinics providing the service in England. The Irish Government then entered a Protocol to the Maastricht Treaty removing the issue from the jurisdiction of EC law.

- 1983 Eight Amendment to the ConstitutionArticle 40.3.3 of the Constitution was amended as follows: "The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right."

- 1861 Offences Against the Person Act. Abortion was made a criminal offence.
Article 58 "Every woman being with child, who with intent to procure her own miscarriage shall unlawfully administer to herself any poison or other noxious thing.....and whomsoever, with intent to procure the miscarriage of any woman whether she be or be not with child shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing....with the like intent shall be guilty of a felon, and being convicted thereof shall be be kept in penal servitude for life."
Article 59 "[W]homsoever shall unlawfully supply or procure any poison or other noxious thing......knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman whether she be or not be with child, shall be guilty of a misdemeanour, and being convicted thereof shall be liable to be kept in penal servitude for the term of three years."

For a more detailed discussion of Irish Abortion Law, please see Abortion and the Law by James Kingston and Anthony Whelan with Ivana Bacik. Dublin, Round Hall Sweet and Maxwell, 1997.

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