Irish law criminalises women and girls for having abortions and could see them get 14 years in jail. Niall Behan says it it time to change it to put women’s health first
FOLLOWING the recent conviction of a woman in the North for self-inducing abortion using medication purchased online, many are asking whether a similar prosecution could take place here.
As a reproductive health service provider, the Irish Family Planning Association’s question is: Why does Irish law flout international best practice in reproductive health and criminalise women who have abortions?
It is indisputable that Irish women and girls are increasingly accessing medication online and self-inducing abortions. And we know from our services that if a woman or girl experiences complications as a result of self-administering such medication, fear of prosecution and a prison sentence may deter her from seeking medical help.
The IFPA hears from the women and girls who attend our pregnancy counselling and post-abortion services that the criminalisation of abortion causes harms to women’s health, even when they access lawful abortion in another state. It contributes to the secrecy and silence surrounding abortion, and to women feeling isolated and stigmatised.
For these women, pregnancy counselling is the only place they can talk openly about their feelings and their experience of having an abortion.
Many of our clients fear being subjected to disapproval, judgement, and hostility. It is clear from what our clients say that the stigma attached to committing a criminal act reinforces negative stereotyping of women who have abortions.
One can only wonder at the impact of a prosecution and trial, and of the reporting on the Northern Ireland case — much of which has used stigmatising, sensationalist, and judgmental language — on the young woman and on her family.
What we hear from our clients about the harms of the current criminal law is not merely anecdotal. It is consistent with a detailed analysis by the UN special rapporteur on the Right to the Highest Attainable Standard of Health of the impacts of criminalisation on women’s and girls’ health. In 2011, the then special rapporteur Anand Grover detailed the multiple negative impacts that criminal laws on abortion and other legal restrictions have on healthcare and on public health.
Criminalisation of reproductive health services, according to the special rapporteur’s report, shifts the burden of accessing the right to healthcare from the State onto women and girls.
And, the report emphasised, women and girls are punished both when they abide by the law, and are thus subjected to poor physical and mental health outcomes, and when they do not, and they face incarceration. The World Health Organisation (WHO) is also clear that legal restrictions on sexual and reproductive health services are likely to have serious implications for health.
The WHO Safe Abortion Guidelines (2012) emphasise that restricting legal access to abortion does not decrease the need for abortion, but it is likely to increase the number of women seeking illegal and unsafe abortions.
During the parliamentary debates on the Protection of Life During Pregnancy Act 2013, the Government repeatedly stated that Article 40.3.3 of the Constitution, or the Eighth Amendment, required the retention of severe criminal provisions.
Under the act, the maximum potential prison sentence is 14 years. This maximum sentence, we were told, would apply to “recalcitrant operators of illicit services”, rather than to individual women. Women would be treated with compassion and wisdom by the legal system.
But prosecution of women for having an abortion was never ruled out. And a conviction would leave a woman or girl with a criminal record, and all that implies, in addition to whatever sentence might be imposed.
In a March 2016 Red C poll conducted on behalf of Amnesty International Ireland, 71% of those polled believe abortion should be decriminalised. A previous Amnesty poll of 2015 found that even those whose personal opposition to abortion is strongest are opposed to the current law’s criminal penalty.
Prosecution of women for having abortions violates international human rights standards. All the monitoring bodies that have examined Ireland’s abortion laws have criticised the restrictive regime whereby abortion is lawful only to save a woman’s life.
The UN Committee Against Torture, the UN Committee on the Rights of the Child, the UN Economic, Social and Cultural Rights Committee, and the UN Human Rights Committee have all deplored the continued criminalisation of women who have abortions in Ireland.
The criminalisation of women for having abortions is something that virtually no one — not the public, not politicians, not health service providers, not our clients, and not human rights experts — believes to be a public good. The March 2016 poll found that 80% of people believe that women’s health must be “the priority” in any reform of Ireland’s abortion law.
So what should the new government do? It has been reported that Fine Gael has proposed a citizens’ assembly that would make recommendations on “potential changes” to the Eighth Amendment.
The only potential change that would reconcile Ireland’s human rights obligations to give effect to women’s and girls’ right to reproductive health is the repeal of this amendment.
And this must be followed by the introduction of measures to guarantee safe and legal abortion services in Ireland without fear of prosecution.
To do anything less is a disservice to women and girls in Ireland.
The only remaining question is when?
Niall Behan is chief executive of the Irish Family Planning Association
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