Abortion in Ireland: A legal quagmire

The legal status of abortion in Ireland remains chaotically unclear despite three controversial referenda being passed since 1983, writes Dan Buckley

What is abortion? A. An abortion is the termination of a pregnancy by the removal or expulsion of a foetus from the womb, resulting in its death. An abortion can occur spontaneously due to complications during pregnancy or can be induced. Abortion is the term most commonly used to describe induced abortion while spontaneous abortions are usually called a miscarriage.

What is the legal position on abortion in the Republic Ireland?

A. Chaotically unclear. The only primary legislation governing abortion in Ireland is British. The 1861 Offences Against the Persons Act specifically prohibits abortion in all circumstances.

Section 58: Every woman being with child who with intent to procure her own miscarriage shall unlawfully administer to herself any poison or noxious thing or shall unlawfully use any instrument or other means whatsoever with the like intent and whosoever with intent to procure the miscarriage of any woman whether or not she be with child shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing or shall unlawfully use any instrument or other means with the like intent, shall be guilty of felony...

Section 59: Whomsoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, 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 be not with child, shall be guilty of a misdemeanour...

These provisions were confirmed by section 10 of the 1979 Health (Family Planning) Act. The generally accepted position is that an abortion may lawfully be carried out in the Republic only where there is a real and substantial risk to the life, as distinct from the health, of the mother.

Have there been any abortionists in ireland?

A. Yes. The best known was Nurse Mamie Cadden who performed hundreds of abortions but fell foul of the law when one of her patients, Helen O’Reilly, an alcoholic mother-of-six, died. While injecting Jeyes Fluid into the 33-year-old’s womb, Cadden accidentally injected a bubble of air which entered O’Reilly’s blood and killed her.

Cadden stood trial for the murder, was convicted and sentenced to death by hanging, but a year later was declared insane and died in 1959 in Dundrum Mental Hospital in Dublin.

What referendums were passed?

A. Three, so far, beginning in 1983 when the prohibition on abortion was strengthened by a referendum and subsequent constitutional amendment which declared that an unborn child is an Irish citizen with full rights. The Eighth Amendment to the Constitution inserted the following paragraph into the constitution: “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.”

Was that the end of it?

A. Not a bit of it. The amendment proved difficult to interpret and nine years later, a controversy arose over the issue of whether a suicidal minor who was pregnant from statutory rape could leave Ireland for an abortion.

Known as the “X Case”, the Supreme Court ruled that a risk of suicide by a pregnant mother could constitute a risk to her health which would justify an abortion, and that the courts had power to grant an injunction preventing a pregnant mother from travelling abroad for an abortion.

It lead to a referendum in 1992, in which two amendments were passed that established the “right to travel” and the “right to information”.

In 1997 another raped and pregnant teenager — in the care of the Eastern Health Board — sought an abortion in Britain. Her parents opposed her decision to travel and sought an injunction preventing the board from taking her out of the jurisdiction. Using the X judgment, Mr Justice Geoghegan ruled that she could travel. However, he added: “The amended Constitution does not now confer a right to abortion outside of Ireland. It merely prevents injunctions against travelling for that purpose.”

In 2002, a failed attempt was made to remove the threat of suicide as a grounds for legal abortion in the state, as well as introducing new penalties for anyone performing an abortion. It was narrowly rejected.

In the same year a European Parliament report said that Ireland should legalise abortion. However, the then justice minister Michael McDowell said that it would not happen as there was no appetite for it among members of the Government.

Have any international courts?

A. Yes. In 1991 the European Court of Justice ruled that student unions in Ireland could be prohibited from distributing information on where to obtain an abortion in Britain because they had no financial links to the clinics providing the service.

On Dec 16, 2010, the European Court of Human Rights sitting in Strasbourg, declared that Ireland had failed properly to implement the constitutional right to abortion in cases where a woman’s life is in danger.

It ruled in a test case that a Lithuanian woman, known as “C”, should not have been denied abortion, as her pregnancy could have caused a recurrence of her rare form of cancer. She was unable to find a doctor in Ireland willing to perform an abortion on the grounds that her life would be at risk if she went to full term.

The 17-judge tribunal concluded the human rights of two other women, “A” and “B,” were not breached.

One was a recovering alcoholic with four children in foster care who felt another pregnancy would harm her chances of getting them back. The other had been advised that her risk of ectopic pregnancy was not sufficient to justify an abortion.

As a signatory to the European Convention on Human Rights, Ireland is obliged to comply with its rulings.

The then health minister Mary Harney said that new legislation would be enacted but nothing was done either by the Fianna Fáil-led Government then nor the current coalition.

Is abortion legal in Northern Ireland?

A. Not generally. The Offences against the Person Act 1861 and the Criminal Justice Act (Northern Ireland) 1945 remain in force.

Abortion is illegal in Northern Ireland as well as the Republic, except where the pregnancy threatens the life or long-term health of the mother.

Abortion is illegal unless the doctor acts “only to save the life of the mother” or if continuing the pregnancy would result in the pregnant woman becoming a “physical or mental wreck”.

Northern Ireland hospitals perform up to 40 medical terminations a year. An estimated 1,000 more women a year travel to Britain or Europe for abortions.

Is there a private abortion clinic anywhere in Ireland?

A. Yes, in Northern Ireland. The Marie Stopes family planning centre, the first private abortion clinic on the island of Ireland, opened in Belfast on Oct 18 this year. Marie Stopes is a British charity that operates clinics in more than 40 countries.

The centre will provide an abortion pill to women who are less than nine weeks’ pregnant and whose doctors certify that their life or health is at risk. It is unclear whether it is illegal to receive the abortion pill through the post in the Republic.

How many Irish women go abroad for abortions?

A. The numbers have declined slightly in the past three years but the annual average is around 5,000 from the Republic and 1,000 from Northern Ireland who go mainly to Britain for terminations.

According to the United Kingdom Department of Health, most are aged between 20 and 29 and are typically between three and nine weeks’ pregnant.

What is the situation in Britain?

A. The 1967 Abortion Act legalised abortion up to 28 weeks’ gestation. It came into operation in 1968 and covered England, Scotland and Wales but not Northern Ireland.

In 1990, the law was amended by the Human Fertilisation and Embryology Act so that abortion was no longer legal after 24 weeks except in cases where it was necessary to save the life of the woman, there was evidence of extreme foetal abnormality, or there was a grave risk of physical or mental injury to the woman.

In May 2008, there was a parliamentary debate over whether the limit should be reduced from 24 to either 22 or 20 weeks but no changes were made.

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