Ivana Bacik – Even a positive change to Constitution on abortion risks unforeseen consequences

Measure aimed at preventing a legal challenge to new abortion legislation will have to be carefully considered

Nearly three decades ago, I was threatened with prison by Spuc (Society for the Protection of Unborn Children). It was 1989; I was president of Trinity College Students’ Union, and Spuc sought to imprison union officers for providing information on abortion. A few years previously, the 1983 Eighth Amendment had been passed, equating the lives of “mother” and “unborn”.

The courts then somewhat unexpectedly ruled that, under this text, it was illegal to provide women with addresses and phone numbers of abortion clinics in England. Pregnancy counselling services closed down, and students’ unions became the only places providing such information for desperate women.

Brilliant legal argument by our senior counsel, Mary Robinson, kept us out of prison. But ever since, the Eighth Amendment has cast its grim shadow over generations of women. It has generated a series of tragic cases, like the X case in 1992; and has endangered the lives of pregnant women, making doctors afraid to intervene until they are close to death. Over recent years, calls for repeal have become stronger, particularly since the death of Savita Halappanavar in 2012. But the amendment has remained in place.

When Oireachtas members passed legislation in 2013 to implement the X case by allowing abortion where a woman’s life is at risk, we were told that under the Eighth Amendment we could not legislate for any other ground – not for cases of rape, nor serious risk to health; nor even where a baby cannot be born alive. The legislation we passed in 2013 has so far led to the carrying out of 52 lawful abortions to save women’s lives – vitally important for them and their families. But it clearly does not go far enough to meet most women’s real reproductive needs.

Since 1983, more than 160,000 women have travelled to England for abortion. During all those years, we have seen enduring hypocrisy dominating political debate, where “pro-life” politicians and commentators pretend that abortion does not happen in Ireland, conveniently ignoring the reality. We have also seen a marked reluctance by most legislators to address the issue; an abdication of responsibility.

Sceptical

When the current Government proposed the establishment of a Citizens’ Assembly to debate the Eighth Amendment, many were sceptical that it represented another legislative kicking of the can down the road. While we recognised the value of the Constitutional Convention in paving the way for the successful 2015 marriage equality referendum, those who had long campaigned for repeal of the Eighth Amendment were impatient of political mechanisms that might delay the necessary referendum.

However, we became increasingly impressed by the assembly’s work over recent months. Its members spent five weekends immersed in detailed consideration of the amendment in a space that, in chairperson Ms Justice Mary Laffoy’s words, enabled withdrawal from polarising perspectives and engagement with the facts.

Last weekend, we saw the real value of a rigorous, evidence-based deliberative process. In their recommendations, the assembly members exposed the hypocrisy and pretence that have dominated debate over the last 34 years. By a resounding 87 per cent majority, they told us that the Eighth Amendment must go. Through their clear recommendations advocating availability of abortion on a range of grounds, they also acknowledged the human reality of crisis pregnancy.

As someone who has campaigned for outright repeal, I was initially disappointed on Saturday to see the assembly recommend that the amendment should not be repealed, but rather replaced with a constitutional provision that explicitly authorises the Oireachtas “to legislate to address termination of pregnancy, any rights of the unborn and any rights of the pregnant woman”.

However, the motivation behind this recommendation became apparent when the Assembly made its fuller recommendations on Sunday, endorsing grounds on which abortion should be available. An overwhelming majority favoured extending legal abortion to cases involving risk to life of the pregnant woman; risk or serious risk to her health (physical or mental); where a pregnancy results from rape; and fatal or significant foetal abnormality. A majority of 72 per cent also agreed abortion should be available for socioeconomic reasons, and a 64 cent majority recommended women should have access to abortion with no restriction as to reasons.

Meticulous process

From these results, and from watching the meticulous process, it appears that assembly members were seeking a way to ensure that abortion legislation would be safe from constitutional challenge. They appear to have concluded, through their careful consideration of the legal submissions, that it would be best to do this by making explicit provision in the Constitution authorising legislators to pass abortion law. This conclusion will have to be considered carefully by the Oireachtas committee charged with reviewing the assembly report. However, the experience of the 1980s information cases should remind us that the insertion of any text into the Constitution carries dangers of unforeseen consequences.

Whether a new constitutional provision explicitly authorises the Oireachtas to legislate or not, the assembly has given clear guidance on the necessary framework for the abortion legislation to be introduced following effective repeal of the Eighth Amendment. They recommended a range of specified grounds and, at least in the first trimester, access to abortion with “no restriction as to reasons”. This has been described as radical, but in fact represents the norm in most European countries apart from England, which is unusually restrictive in requiring grounds such as risk to health for all legal abortions. Most EU states, including the Netherlands, Belgium and Denmark, permit abortion on request (without reasons) for the first 12 weeks.

The assembly’s robust and consistent recommendations provide us as legislators with a clear direction – a way forward. We need to hold a referendum on the Eighth Amendment, to ensure its effective repeal, and to enable the Oireachtas to pass legislation allowing abortion on grounds comparable with other EU countries. It is vital that we act swiftly on these recommendations – and lift the 34-year old shadow over women in Ireland.