Mick Wallace (Wexford, Independent) | Oireachtas source

The parameters of the Bill are extremely narrow. We seek to legislate to allow abortion in cases where two specialist medical practitioners - an obstetrician and a perinatologist - have deemed a foetus to be incompatible with life. We are not talking about life-limiting illnesses or disabilities, but foetuses which are incompatible with life. In June 2013, there was letter inThe Irish Timesfrom a group of 43 lawyers and law lecturers, who set out that it was entirely possible to legislate for fatal foetal abnormality without changing the Constitution. According to the group:

It is possible to interpret Article 40.3.3° so that the “unborn” that is protected therein does not include those foetuses with fatal abnormalities. The Irish courts have not considered this legal issue and there is no binding precedent excluding such an interpretation.

Ireland is just one of two EU member states that do not allow for legal terminations in cases of fatal foetal abnormality. The fact that the question of allowing for abortion in such cases has never been assessed by the Irish courts means women are, by law, required to carry to term, and give birth to, a foetus which will never be born alive.

The question of constitutionality has been raised by many Government Deputies in regard to the Bill, and the opinion of the Attorney General in this regard was trotted out as an excuse for Government Deputies to vote against Deputy Clare Daly’s Bill last year. There are two very serious problems with this. The first is that the opinion was never published, and we have never had a chance to assess or debate it. The second is that it is only an opinion. Only the courts can find something to be constitutional or not. If constitutionality is the only reason Deputies have for refusing to back this Bill, they should allow it to be assessed in the appropriate manner, by the courts. If the courts find it is unconstitutional, we will be in the same situation as we are now.

We, too, have sought legal opinion and I have been told that for Government Members to keep repeating that the Bill is unconstitutional is highly inappropriate. Under the separation of powers doctrine, which is enshrined within the Constitution and forms the backbone of our democracy, only the courts can interpret legislation. Article 15 provides that only the Oireachtas has the power to make laws and Article 28 sets out that executive power can be exercised only through the Government. Each of the three bodies has sole independence and power in its own sphere and cannot encroach into the sphere of any other. This system of checks and balances, this separation of powers, is supposed to mean no one body is too powerful and it prevents over concentration of power in the hands of one body.

It is all the more inappropriate if it can be shown that the legal advice the Government is relying on from the Attorney General's office, that our Bill is unconstitutional, does not relate specifically to our Bill and is outdated and, possibly, obsolete if it was provided in 2010. Under Article 15, the Oireachtas cannot pass laws that are “repugnant” to the Constitution. However, given the disagreement among legal academics and barristers on whether fatal foetal abnormalities can be legislated for, the question of constitutionality is at the very least arguable, and the Bill cannot be said to be repugnant to the Constitution, which would be a piece of legislation that is clearly and undeniably unconstitutional.

The Constitution has been referred to many times by judges and academics as a "living, breathing document". It is intended that judges have the power to interpret the meaning of the Constitution to reflect the society of the day. Society has changed considerably since 1937, and indeed since the eighth amendment was introduced in 1983. It is time we gave the Constitution a chance to catch up.

The recent examination of the Amanda Mellet case by the UN Human Rights Committee, UNHRC, was the first time any international court or human rights body has found that the criminalisation of abortion is, in itself, a violation of human rights. The UNHRC found that even though the State did not directly inflict harm on Amanda Mellet, its neglect and abandonment of women in this situation, who are left “isolated and defenceless”, moves situations like hers out of the realm of guiltless tragedy and into the responsibility of the State. In forcing her to travel, depriving her of material and emotional support and appropriate care during and after the abortion, the Irish State added to the heartbreak of carrying an unviable pregnancy, violating her right to "protection from cruel, inhuman and degrading treatment" detailed in Article 7 of the International Covenant on Civil and Political Rights, ICCPR. The State also violated her rights to privacy and bodily integrity under Article 17 of the ICCPR. According to the committee, “requiring the author to carry a fatally impaired pregnancy to term only underscores the extent to which the State party has prioritised ... the reproductive role of women as mothers, and exposes its claimed justification in this context as a reductio ad absurdum".

The committee found that the State discriminated against Amanda Mellet both as a woman and on socio-economic grounds. According to Sarah Cleveland, a member of the UNHRC, the criminalisation of abortion amounts to gender discrimination, because it affects a health service that only women need and places no equivalent burden on men. Women who choose to carry an unviable pregnancy to term and deliver a stillborn child receive State-funded care, whereas those would-be criminals who choose to travel for the termination of their already unviable foetus must bear the cost themselves and forgo any aftercare. Tough luck if you cannot afford it.

According to the London-based Abortion Support Network, the economic crisis has made the process of accessing abortions even harder for poorer women. Deputies who hide behind the eighth amendment as an excuse to vote against the Bill, and who then refuse to call for the repeal of the amendment, are shamelessly upholding a system which violates the rights of women specifically, treating them as second-class citizens, completely denying their bodily integrity and regarding them as no more than human incubators. It is the Government’s neglect of its responsibility to protect the human rights of its citizens, as highlighted by the United Nations, which allows for this truly appalling situation to continue.

The Minister for Health, Deputy Simon Harris, has said he read the UN committee’s report, stating that he found “the experience this woman had, deeply upsetting". He said he had met with families who have been through the trauma of knowing their baby will not survive and had been very moved by hearing of their experiences. He said he wanted the issue to be addressed. I hope he will put his words into action. Although the finding of the UNHRC is not technically binding on Ireland, in line with our obligations under international law, in particular the ICCPR, we are obliged to act on it in good faith to implement the findings of the committee. International law requires the State to provide a remedy and prevent a repetition.

Every day, ten to 12 women and girls leave Ireland to access safe and legal abortions, because if they did so here, they could face up to 14 years in prison. The Irish Family Planning Association found that between January 1980 and December 2015, over 166,000 women and girls travelled from the Republic of Ireland to access abortion services in another country. Ruth Fletcher, senior lecturer in law at Queen Mary University London, holds that restricting access to abortion does not stop abortion; it just makes the experience more harmful. According to Ruth Fletcher:

If Irish society is serious about reducing harm to pregnant women, including the harms of disrespecting their autonomy and bodily integrity, the State needs to change how it thinks about pregnancy and abortion. The recognition of woman and foetus as legal equals has been harmful, and needs to change.

People disagree about abortion and have different views on when life begins. While people are entitled to their beliefs, they should not be entitled to shove their beliefs down the necks of others, especially when it amounts to a violation of their human rights.

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