Floodgates in the Irish debate on abortion

In the aftermath of the death of Savita Halappanavar, anti-abortion campaigners in Ireland have deployed, either implicitly or expressly, numerous floodgate arguments in an effort to sway public opinion and halt the government’s plans to finally legislate for the X case.

In their submission to the Joint Committee on Health and Children in January, Berry Kiely and Caroline Simons of the Pro-Life Campaign argued that codifying in law provisions for the treatment of suicidal pregnant women would inevitably lead to widely available abortion. This has been a common refrain ever since the X case judgement was handed down more than 20 years ago. Pro-Life campaigners would have us believe that legislation similar to what the X case judgement requires was enacted in the United Kingdom in the form of the Abortion Act 1967. That law, apparently, inadvertently led to a situation where women could easily obtain abortions. However, even the most cursory look at section 1(1) of the law in question shows that it bears little resemblance to the restrictive bill proposed by the Irish government. The ’67 Act allowed abortions in the case of fatal foetal abnormalities, threats to the life of the mother and where two doctors had agreed that “continuance of the pregnancy would involve risk… of injury to the physical or mental health of the pregnant woman or any existing children of her family” before the 24th week of pregnancy.

The Protection of Life During Pregnancy Bill 2013, of course, does not allow for abortion in the case of threats to the physical or mental health of the mother. Allowing doctors to consider the health effects of a pregnancy when determining whether an abortion should be allowed, as British law does, grants doctors a prerogative that simply does not exist in the proposed Irish bill. The Eighth Amendment in fact prevents the enacting of any law that would allow abortion on grounds beyond threats to the life of the woman. It’s unlikely that Caroline Simons, a trained lawyer, is unfamiliar with basic constitutional law. It’s unlikelier still that William Binchy, another prominent proponent of this argument, is unaware of the constitutional amendment he effectively wrote. And yet they continue to make these arguments, seemingly under the impression that legislation based on the X case is some sort of legal magic upon which the constitution is not binding. The incredibly harsh nature of Article 40.3.3 of the Irish constitution means that legislation similar to the ’67 Abortion Act in the UK would not be even possible in this jurisdiction without the repeal of the Eighth Amendment. The floodgate arguments made by anti-abortion campaigners in this regard are transparently dishonest attempts to confuse the issue and distract from the merits of clarifying existing Irish law.

Another, broader floodgate argument is distilled from these erroneous comparisons to British law. Rónán Mullen, for example, has argued that the provision of abortion on grounds of suicidal ideation in any manner could only lead abortion on request. Mullen claims that pro-choice doctors would distort the law and sign-off on abortions even where no risk of suicide exists. Though careful to avoid explicitly saying that he believes deceitful women would scheme to con doctors into believing they are suicidal in order to get abortions, he essentially makes that argument in a roundabout way by referring to the supposed inability of physicians to adequately determine genuine suicidal intent. Aside from being insulting both to women and the medical profession, these arguments are just not plausible. The bill gives substantial powers of oversight to the health minister, who must be informed of every single abortion that is performed under the authority of the bill. The minister can suspend services in hospitals and order investigations in the unlikely event that patterns emerge suggesting violation of the constitution.

The Protection of Life Bill is nothing like the Abortion Act 1967 in the UK and the notion that pro-choice doctors and scheming women would be able to bring about de-facto abortion on request by overriding the Eighth Amendment and the bill’s oversight provisions simply stretches credulity. The bill clearly does not herald the end of Ireland’s draconian abortion ban as anti-abortion activists have contrived to characterise it. There must, therefore, be some other explanation for why the anti-abortion movement has demonstrated such intense opposition to what is in actuality an extremely harsh and restrictive law.

The fact is that the current state of abortion discourse in Ireland suits those opposed to choice very well. The debate has essentially been frozen since 1992, focused almost exclusively on the Supreme Court’s decision in the X case. We’ve had referendums, European court challenges, countless inter-departmental working groups, Oireachtas committees and green papers. All of which serves to centre the public debate on one narrow issue, stunting the broader debate on the Eighth Amendment.

An Irish Times/Ipsos MRBI poll earlier this month showed overwhelming majorities of Irish people support the provision of abortion in the instance of rape, abuse, where the foetus is unlikely to survive outside the womb and where there is a threat to the woman’s health. But of course, as long as the X case hangs over the question of abortion in Ireland, we can’t begin to debate these issues. Opening the floodgates of public discourse on the broader abortion issue is really what anti-abortion campaigners are worried about.  Once X case legislation is passed, the debate is  freed from the narrow confines of that judgement and we can finally start to make real progress.


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