We have important lessons to learn from yesterday’s landmark Belfast High Court decision.
Mr Justice Mark Horner ruled that abortion laws in the North breaches Article 8 of the European Convention on Human Rights (ECHR), which guarantees the right to privacy. This ruling was made on two grounds: The criminalisation of abortion in cases both of fatal foetal abnormality, and of rape.
First, the judge ruled that the failure to allow abortion in cases of fatal foetal abnormality constitutes a gross interference with the personal autonomy of pregnant women. He pointed out that, in such cases, there is no unborn life to weigh in the balance against the rights of the pregnant woman. Further, he said he had no evidence that a majority, or even a substantial section, of the North’s community would require a woman to carry such a foetus to full term.
In respect of rape, Mr Justice Horner said sexual crime is a gross intrusion on a woman’s autonomy, and a resulting pregnancy is not a voluntary act but one forced upon her. He noted that a woman who becomes pregnant as a result of rape is legally obliged to carry a child to full term, yet he pointed out, again, that there was no evidence the people of the North would require this.
The judgment may of course be appealed by the Northern Ireland authorities, but it has already been described as “historic”. The head of the Northern Ireland Human Rights Commission has said the result will be “welcomed by many of the vulnerable women and girls who have been faced with these situations”. This judgment is undoubtedly welcome for many women and girls in the North. However, it is also welcome for us — because of the important lessons for our law.
The decisions on fatal foetal abnormality and rape certainly apply here in Ireland — our law is clearly in breach of Article 8. In fact, the position here is worse. Our law is much more restrictive than in Belfast. In the North, abortion may be legally carried where the continuance of the pregnancy poses a risk to the life of the woman; but also where she would become a ‘physical or mental wreck’ if the pregnancy is not terminated.
By contrast, here in the Republic, abortion is only legal in the rare cases where a pregnancy poses a ‘real and substantial risk’ to the life of the pregnant woman. A pregnancy cannot be terminated because it poses a risk to a woman’s health, however serious.
This is because in 1983 we inserted the Eighth Amendment in our Constitution, which provides ‘the unborn’ with a right to life equal to that of the pregnant woman. Because of the Eighth Amendment, we cannot legislate to allow abortion in cases of rape or fatal foetal abnormality. Because of this amendment, doctors cannot intervene where a pregnancy poses a serious risk to a woman’s health — the risk must be to her life.
Many doctors have spoken publicly about how dangerous the ‘chilling effect’ of our law is for women’s lives. Indeed, calls for repeal of the Eighth Amendment have become increasingly strong since the tragic death of Savita Halappanavar in Galway University Hospital in 2012, in circumstances where her pregnancy was not terminated until too late to save her life.
Because of the Eighth Amendment, thousands of women in crisis pregnancy are forced to travel to England to terminate their pregnancies every year. Since 1983, more than 160,000 women have made this journey.
For all these reasons, international human rights bodies have criticised Ireland for failing to repeal the Eighth Amendment. The need for repeal is now a major political issue for the forthcoming general election. Within the Labour Party, repeal has been policy for many years; it is a manifesto commitment, and a priority for the party in negotiating any programme for government.
Last week, we in Labour Women published the bill that Labour would introduce if the Eighth Amendment were repealed. This legislation, drafted with help from independent doctors and lawyers, represents a significant step forward; no other major political party has clarified its stance on abortion in this way.
The bill will allow abortion on four medically certified grounds: Risk to life; risk to health; rape; and fatal foetal abnormality. It will repeal existing laws that criminalise women and their doctors. This is sensible, moderate legislation, which closely reflects the current views of Irish people on abortion, measured in successive opinion polls.
Critically, this legislation would also allow us to meet our obligations under the European Convention on Human Rights, as set out in yesterday’s historic Horner judgment.
Our current law clearly breaches the Article 8 privacy rights of Irish women. The Constitution is no place to regulate abortion. Only repeal of the Eighth Amendment, and its replacement with compassionate legislation, would ensure that women’s rights are secured. We shouldn’t need a Horner judgment to tell us that the Eighth Amendment breaches women’s human rights — let’s move to repeal it now.
Ivana Bacik is a Labour senator for Dublin University