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Ireland?s Failing Abortion Law: Statutory Interpretation, Human Rights and the Detention of Pregnant Children.
admin - Tue Jun 13, 2017 17:08
Mairead Enright (@maireadenright) Yesterday, the Child Care Law Reporting Project published a summary of a District Court case from 2016. A suicidal teenager’s GP referred her to a consultant psychiatrist. She was pregnant and did not want to be. Under s. 9 of the Protection of Life During Pregnancy Act (PLDPA) the entitlement to access […]
Mairead Enright (@maireadenright)
Yesterday, the Child Care Law Reporting Project published a summary of a District Court case from 2016. A suicidal teenager’s GP referred her to a consultant psychiatrist. She was pregnant and did not want to be. Under s. 9 of the Protection of Life During Pregnancy Act (PLDPA) the entitlement to access a life-saving abortion must be certified by three doctors (two psychiatrists, at least one of whom has experience in treating pregnant women, and an obstetrician). Their job is to assess whether there is a real and substantial risk to the woman?s life from suicide, which risk can only be averted by terminating the pregnancy. This statutory test, restrictive as it is, mirrors the 8th Amendment as interpreted in the X case – the sources of constitutional law which provide that abortion is only available in Ireland where necessary to save the pregnant woman?s life.
This girl apparently saw only one psychiatrist, who decided that, although she was suicidal and at risk of self-harm, an abortion was not ?the solution for all of [her] problems at this stage?. On his evidence, involuntary admission proceedings were begun under s. 25 of the Mental Health Act 2001 (MHA). The Health Service Executive (HSE) applied to the District Court to have the girl detained on the grounds that she was suffering from a ?mental disorder? (which meant that she was at risk of causing ‘immediate and serious harm to herself or other persons?) and required treatment which she was unlikely to receive unless such an order was made.The order was granted on the consultant psychiatrist?s evidence, and the child was detained in a psychiatric facility. We do not know what treatment it was proposed to subject her to. It was not suggested that any question arose around her capacity to consent.
At the time of making the detention order, the District Court judge appointed a guardian ad litem to represent the best interests of the child. The guardian employed another consultant psychiatrist to assess the detained girl. This second psychiatrist found that the girl was not (or was no longer) suicidal. By this point, the treating psychiatrist in the institution where the girl was detained also agreed that the initial risk of self-harm had abated. The guardian ad litem therefore applied for discharge of the detention order on the grounds that the girl was no longer suffering from a ?mental disorder? within the meaning of the 2001 Act, and so there were no grounds for her detention.
It is not known what happened to this girl after her release; whether she was facilitated to travel to seek an abortion to preserve her mental health or whether she was compelled to continue the pregnancy in Ireland. Suppose for a moment that her pregnancy was advanced, and that she was subsequently unable to travel – that she was effectively denied an abortion. Later in the month, the Minister for Health will report on the number of abortions carried out under the PLDPA, as required by s. 15 of the Act. Refusals will not be reported, which makes it difficult to spot oppressive patterns of obstruction. This case demonstrates that the PLDPA, as it is applied in practice, is incapable of vindicating vulnerable women?s rights. There are three key points:
(i) Was the PLDPA applied here? The prominence of one psychiatrist in the report does not tell us anything by itself. S.9 of the Act says that in order to access an abortion, a woman must have been examined by 2 psychiatrists and an obstetrician; it refers to ?joint certification?. However, the Department of Health Guidance on the operation of the Act places a lot of power in the hands of the first psychiatrist. S/he may assess the patient alone, without discussion with other doctors. If s/he decides that the statutory test is not fulfilled, the pregnant person may accept that clinical recommendation. Even so, the first psychiatrist must notify the woman of the refusal in writing, of her formal right to review under s.10 of the Act and of her right to a second opinion. It not known what was done to help this, apparently very confused, child avail of those statutory rights (to advocate for her, to fill out paperwork, to clarify her choices and their consequences) once she received a first refusal. It is also important to note that this staged chain of assessment is not set out on the face of the Act – it is the Department of Health?s interpretation. It is not obvious that it is the correct interpretation of the Act: for instance it is strange that a woman?s constitutional right to a life-saving abortion can effectively be overridden by one doctor, but the right to access an abortion cannot be confirmed without the intervention of three.
(ii) How should the PLDPA interact with the MHA? During the PLDPA debates, the Minister for Health assured the Oireachtas that a woman who did not suffer from a mental disorder within the meaning of the MHA would not be detained merely for requesting an abortion. The Department of Health must guide against any such slippage. The Department of Health Guidance on the Act does not help here. For the avoidance of doubt the guidance should clarify that the PLDPA should be considered first where possible. Even where circumstances require a pregnant person?s temporary detention, the PLDPA process should be commenced as soon as practicable. To take any other position might allow the MHA to be used to bypass the PLDPA. The MHA should not be seen as an alternative to the PLDPA even where the assessing psychiatrist guesses that a patient would not pass the test under s.9. First, if it were, the temptation to allow the MHA to become a conscientious objector?s charter in suicide cases clearly arises. The HSE should ensure that conscientious objection is clearly exercised under s. 17 of the PLDPA, rather than concealed. Second, the Acts should not be treated as triggers for one another. The statutes have different purposes – the MHA test determines the legality of detention for the purpose of treatment, while the PLDPA determines the legality of the treatment itself; the approach to one should not pre-determine the approach to the other. Refusal under the PLDPA should not automatically lead to detention. If, however, the phrase ?immediate and serious harm…to other persons? in the MHA is being read – by psychiatrists or by the courts at the urging of foetus? own guardians ad litem – to include the unborn, the possibility of slippage between the Acts becomes starkly apparent. The government must address this interpretation.
I am not, for a moment, defending the PLDPA process. Under the PLDPA a suicidal woman may be assessed by 6 or more doctors before being granted an abortion. Even when applied properly the PLDPA assessment process may be gruelling. But it is equally indefensible to avoid the process altogether when a woman has requested it, and in so doing to strip her of all rights-protecting procedural safeguards.
(iii) Finally, we might ask when the Department of Health will provide full guidance on what doctors should do when a woman is refused access to an abortion. We know, for example, from the earlier case of Ms. Y, that such a woman may legally be subjected to treatment for the purposes of extending her pregnancy to viability, in order to facilitate later live delivery. (Ms. Y was threatened with detention). Was it proposed to detain this child for that purpose? The law does not tell doctors how far they may go to preserve a pregnancy if it is determined that a pregnant person is not entitled to an abortion under the PLDPA. (Oddly, lack of ?legal certainty? in this respect has not become the same political football as has the same uncertainty around the right to access an abortion). The Department of Health Guidance reminds doctors that, under the Act, they must act ?as far as practicable? to preserve unborn life (including inducing labour or delivering early by C-section) without compromising the life (but not the other rights) of the pregnant woman.This girl was detained (apparently to her great shock) and in the process was prevented from travelling. Were appropriate safeguards in place?
This is a grey area, where doctors have been left largely free to exercise their own discretion, and where the state has failed to elaborate on any human-rights based limits. However, the limits are there. Today, for example, we got word of the UN Human Rights Committee?s decision in Whelan v Ireland. The principles are essentially those in Mellet v Ireland; that the Irish criminalisation of abortion, the attendant requirement to travel for non-life-saving abortions, and the associated restriction of abortion information, violate the human rights of women whose foetuses have been diagnosed with fatal foetal abnormality. Whelan is about a case outside the PLDPA regime, whereas this girl?s case was firmly within it. But Whelan, like Mellet, provides means to critique refusals under the PLDPA too. In particular, the defeated arguments advanced by the state in Whelan map how legal attitudes must be altered. First, in Whelan the state attempted to defend drastic and distressing infringements on women?s rights; prioritising unborn life over women?s autonomy. Whelan confirms that, under the ICCPR, the state does not have the power to arbitrarily restrict women?s rights in a broadly drawn attempt to protect unborn life.
Second, Whelan confirms the state does not fulfil its human rights obligations merely by clarifying the law of abortion on the face of statutes, without supporting women to navigate the structures governing that lawful abortion. ?Legal certainty?, for this government means words on the statute books, not the effective empowerment of women or the alleviation of their distress. This must change. It must change for abortions under the PLDPA as well as for abortions accessed in line with the right to travel.
Third, women?s rights are violated through omission to adequately support them as much as by the culpable acts of individual state agents. At the same time, the state must restrict opportunities for individual obstructionist interpretations of the abortion laws, as discussed above. This must be done through the provision of proper guidance and training on the implementation of abortion legislation; whether the PLDPA or its inevitable successors.
Finally, it is no longer enough for the state to argue as it did in Whelan (and A, B and C v. Ireland, D v. Ireland and Mellet) that women can vindicate their rights (and extend the existing constitutional law) by bringing cases to the High Court. It is for the government to create genuinely workable law – this function cannot be delegated to women at the most vulnerable time of their lives.
admin - Thu Jun 01, 2017 16:59
The human rights movement has done a great deal of good in improving the lives of people around the globe, however, as evidenced by recent political upheavals, its embodiment as a contemporary ?ethics of progress? is increasingly being questioned. Events such as Brexit point to the role played by cultural and political factors in the […]
The human rights movement has done a great deal of good in improving the lives of people around the globe, however, as evidenced by recent political upheavals, its embodiment as a contemporary ?ethics of progress? is increasingly being questioned. Events such as Brexit point to the role played by cultural and political factors in the realisation of human rights and raise the issue of the role of the social sciences in helping to ensure human rights as a lived reality.
In light of this, the Social Sciences Committee of the Royal Irish Academy is organising a conference on ?Human Rights and the Social Sciences? which will take place in Academy House in Dublin on Thursday 22nd June 2017 (10am-4.15pm).
The idea of the conference is to build bridges between the knowledge domains of the social sciences and those of human rights. Specifically, the aim is to explore the potential of the social sciences to contribute to the critical study of power and inequality in societies where a gulf exists between human rights ideals and lived experiences. To this end, the colloquium will therefore address (i) the differences of approach between the fields of human rights and the social sciences (such as the social scientific emphasis on realism and power) and (ii) their mutually complementary roles (including the role of the social sciences as a ?critical friend?).
The keynote address will be delivered by Prof. Conor Gearty, LSE who will speak on the topic of ‘Is the era of human rights drawing to a close?’. Other speakers will address issues as diverse as human rights and security, the rights of refugees, and economic and social rights.
The event will attract 4 CPD points and certificates of attendance will be available. Full programme and registration are available here . (https://www.ria.ie/human-rights-culture-and-critique).?utm_source=rss&utm_me...
Liam Thornton - Tue May 30, 2017 15:06
By virtue of section 9(4) of the Refugee Act 1996, asylum seekers are absolutely prohibited from seeking or entering employment in Ireland. This provision has now been replaced by section 16(3)(b) of the International Protection Act 2015. This provides that an asylum seeker, shall??. (b) not seek, enter or be in employment or engage for […]
By virtue of section 9(4) of the Refugee Act 1996, asylum seekers are absolutely prohibited from seeking or entering employment in Ireland. This provision has now been replaced by section 16(3)(b) of the International Protection Act 2015. This provides that an asylum seeker,
Is this absolute prohibition on asylum seekers from entering, seeking or being in employment unconstitutional. The Irish High Court said no. The Irish Court of Appeal said no (see Maria Hennessy’s analysis of these decisions here). The Irish Supreme Court has answered yes.
O’Donnell J (and the other six Supreme Court judges who agreed with this decision) have now decided to adjourn proceedings for six months, after which an order will be made declaring the absolute prohibition of asylum seekers from exercising a right/freedom to work, unconstitutional. The Supreme Court agreed with the Court of Appeal ruling that no challenge existed to this prohibition under the ECHR Act 2003 (which I think is very problematic..) nor the European Union Charter of Fundamental Rights.
As O’Donnell J. noted, the core question that the Supreme Court had to decide could be broken into three core parts:
O’Donnell J. decided that yes, there is a qualified right to work under Art. 40.3 of the Irish Constitution. The reason I am saying qualified, is because, in light of earlier jurisprudence, O’Donnell J. has categorised this as a freedom to work, subject of course to other considerations (i.e. qualifications, experience to enable a person conduct the work they want to). The freedom to work goes to the “essence of human personality” (para. 13), even if (para. 15)
O’Donnell noted that the constitutional recognition of what might be called a right or freedom to work does not entail obligations for provision of work, or even require the Government to adopt economic policies to enable full employment (para. 12).
However, the freedom to work recognises the “essential equality of human persons mandated by Article 40.1” of the Irish Constitution (para. 13). Interestingly, and the first time ever to my knowledge, an Irish Court (and the Supreme Court no less) has relied directly on a general comment from the UN Committee on Economic, Social and Cultural Rights (para. 16) on the right to work:
The Supreme Court stated that this description is “broadly consistent with that which was the background to the constitution” (para. 16). By exercising a freedom to work, a person can then ensure the protection of his/her other rights, within the family sphere, within the social sphere and within the societal sphere (para. 15). The right to work or more precisely the freedom to work, has been recognised by the Supreme Court as a fundamental part of human personality.
2. Whether an asylum seeker can rely on this constitutional freedom to work?
The Supreme Court did note that a non- (EU) citizen has no automatic right to work in Ireland, this is subject to permission being granted. However, asylum seekers who are lawfully in the State for the duration of their protection claim, cannot be compared to other migrants who might be seeking a permission to work in Ireland. The right to work which goes to the “essence of human personality”, cannot be absolutely excluded for those seeking asylum. Work is fundamentally connected to ‘dignity and freedom’ (para. 15) and cannot be withheld from non-citizens. ‘Significant distinctions’ can exist in the field of entry to employment between citizens and non-citizens and the Supreme Court stated the Oireachtas and “(where appropriate) [the] executive” judgment on the precise contours of the right to work for asylum seekers will in the main be respected by the courts. The Supreme Court noted that the “pull factor” argument is a legitimate argument the Oireachtas may make reference to (para. 18). The Oireachtas may determine that by granting the right to work, it may make it more difficult to remove an asylum applicant who is not entitled to protection. In addition, the Oireachtas may have a power to limit the freedom to work for asylum seekers “to defined areas of the economy perhaps where there is a demonstrated need.” (para 18)
Therefore, while an asylum seeker may have the freedom to work, the Supreme Court decision provides significant scope for the Oireachtas to place limitations on this, and limitations that could not be placed on citizens. Its hard to equate the Supreme Court’s views on what may be permissible limitations, with the Supreme Court noting in para. 20 of its judgment the “damage to the individual’s self-worth and sense of themselves”.
3. What Next?
The Supreme Court decided that “in principle” they were prepared to hold (at para. 21):
The ball is now firmly in the court of the Oireachtas. However, the Oireachtas must be reminded (contact your TD here), that they are not starting from a blank slate.
First, the Irish High Court has already ruled that maladministration in rendering of a lawful decision on a protection claim may result in damages being awarded to an asylum seeker. Therefore, whatever course of action the Oireachtas takes, lets get this right. There has to be some focus on the ability of our quasi-judicial bodies who determine protection claims to do their work efficiently, but most importantly to be fair to asylum applicants.
Second, It would appear, that if Ireland became part of how European Union society deals with this question, then our Parliamentarians need to look no further than EU law for a solution to this constitutional protection of asylum seekers right to work. The Recast Reception Directive (which Ireland is not bound by), provides asylum seekers a right to work should generally be granted after 9 months where a first instance decision has not been rendered on a refugee/protection claim. The McMahon Working Group on the Protection Process and Directive Provision made a recommendation (para 5.49) that once the International Protection Act 2015 was operating efficiently, that Ireland abide by this 9-month rule. Whatever the Oireachtas decide, this constitutional right of asylum seekers to have a freedom to enter employment must be effective, and not illusory (borrowing how the European Court of Human Rights insists on the realness of granted rights).
Image credit: Michael Foley
Cliodhna Murphy - Fri Apr 28, 2017 12:33
We are delighted to welcome this guest post from Leanne Caulfield, research assistant at Maynooth University on the IHREC-funded project ?Integration Policy in Ireland Through the Lens of Human Rights and Equality?. In January, Professor Mary Gilmartin and Dr. Clíodhna Murphy (Maynooth University) commenced work on an Irish Human Rights and Equality Commission funded research […]
We are delighted to welcome this guest post from Leanne Caulfield, research assistant at Maynooth University on the IHREC-funded project ?Integration Policy in Ireland Through the Lens of Human Rights and Equality?.
In January, Professor Mary Gilmartin and Dr. Clíodhna Murphy (Maynooth University) commenced work on an Irish Human Rights and Equality Commission funded research project which focuses on the development of a human rights-based integration policy framework for public bodies. One aspect of the research involves the collation and analysis of public bodies’ existing policies relating to migrant integration, diversity or interculturalism. In evaluating public bodies? integration policies, it seems fitting to turn firstly to the Migrant Integration Strategy published by the Office for the Promotion of Migrant Integration in February of this year.
Underpinning Features of the New Migrant Integration Strategy
The first formal strategy for integration was produced in 2008 by the Office of the Minister for Integration. This document, called ?Migration Nation?, outlined the principles intended to underpin Irish integration policy. The need for a renewed focus on integration and a more developed and long-term approach was recognised by the Government and resulted in the publishing of the new strategy this year.
The central features underpinning the new strategy are its definition of integration as a broad-based, two-way conception; its focus on a mainstreaming, intercultural approach to policy enforcement; and its foundation on the EU Common Basic Principles for Integration. The strategy also centres on the idea that it is addressing a new phase in Ireland?s integration policy – moving beyond the initial phase of focussing on the needs of those newly arrived in Ireland, to that where many migrants have lived in Ireland for some time but may continue to have needs particular to their migrant status.
The strategy is much more focused on identifying actions rather than setting out guiding principles. The strategy identifies two types of actions. The first type of actions are those applicable to all Government departments which include making information available through signs and translated material, training on intercultural awareness and providing information on how to make a complaint about racist behaviour.
The second type of actions is those which are intended to address particular issues. Some of these are interesting and quite specific – such as the inclusion of a target of 1% for the employment of EEA migrants and people from minority ethnic communities in the civil service (in most cases civil service employment is not open to non-EEA nationals) and the monitoring of current school enrolment policies over time to assess their impact on the enrolment of migrant students. Other actions are broad and nebulous (for example, ?encourage businesses to focus on integration?; and ?migrants will be encouraged to participate in local and national politics to the extent that these areas are legally open to them?.)
A Human Rights and Equality Focus?
As the research project is focused on developing a human rights and equality-based migrant integration policy framework for public bodies, we were keen to establish the extent to which the Migrant Integration Strategy is either explicitly or implicitly human rights-based.
?Human rights? are not expressly mentioned in the Migrant Integration Strategy apart from a handful of references which are made only for the purpose of outlining the duty on the Irish Human Rights and Equality Commission. There are no references to upholding human rights standards or ensuring that human rights are enjoyed by all, and human rights principles are not expressly given as a rationale for any of the measures outlined in the strategy. However, there are a small number of express references to ?equality? and equality principles. It is stated that the vision of the strategy is to enable migrants or persons of migrant origin to participate ?on an equal basis? with those of Irish heritage. The strategy also expresses a commitment to ensuring ?equality of opportunity? for second generation migrants although it does not proceed to explain how this will be achieved.
The strategy does contain some implicit references to human rights and equality principles and human rights issues. Commitments are made with regard to the right of participation, as the strategy outlines its vision of enabling migrants or persons of migrant origin to participate on an equal basis with those of Irish heritage. The principle of non-discrimination is also referred to implicitly in the outline of measures aimed at combating racism and xenophobia including intercultural training, ensuring representation of migrants on joint-policing committees, and other measures. However, the strategy also states that provision of generic training across the public service via the shared learning and development curriculum will address specific provision of antiracism and cultural awareness training only ?where a need is identified?.
One of the core elements of the strategy?s vision is that ?the basic values of Irish society are respected by all?. The strategy also states that integration recognises the right of migrants to give expression to their own culture in a manner that does not conflict with the ?basic values of Irish society? placing an emphasis on the need for migrants to conform to Irish values without elaborating on what these values are. As Xanthaki argues, portraying values as simply ?Irish? or ?European?, as though Irish and European societies are beacons of democracy and fairness, and then expecting migrants to conform to these values, can serve to create a conditional one-way process of integration and to impose an artificial gap between the ?host community? and migrant communities.
Positive Aspects of the Strategy
The Migrant Integration Strategy contains several positive features in its vision to achieve integration. The first of these positive points is that aside from some limited and under-explored references to ?values?, the strategy does not appear to focus on ?cultural integration?. It states that migrants should be enabled to celebrate their national, ethnic, cultural and religious identities (subject to the law). A second aspect is its participatory conception of integration: its vision is that migrants are facilitated to play a full role in Irish society. A third positive point is that the strategy recognises the need for better data on issues facing migrants (action 8).
A further positive feature is that some of the actions deal with long-standing issues of immigration law. Here, the strategy states that a statutory scheme for long term residency will be introduced (action 11). In addition, measures will be introduced to enable registration of non-EEA migrants aged under 16 years (action 14). These measures are to be welcomed. Related to this point is another positive in that the Department of Social Protection is to continue to take measures to ensure that the Habitual Residence Condition for welfare payments is applied correctly and consistently (action 21).
Points of Concern
While the Migrant Integration Strategy has strengths, there are also some points which cause concern. An initial point of concern is that the vision of the strategy includes, as its first priority, that ?The basic values of Irish society are respected by all? and that it does not identify what these values are or might include. A second point of concern is that, as outlined above, there are no express references to human rights principles as such, although some reference to ?equality of opportunity?. The limited nature of references to immigration law is a further point of concern. Access to family reunification and the regularisation of undocumented people are some important long-standing issues which are not dealt with in the strategy. The strategy?s commitment to examine the imposition of a citizenship and/or language tests (action 12) is a further point of concern, as such tests act as barriers to integration.
The fact that the strategy does not apply to asylum seekers or undocumented migrants, as it only applies to ?EEA and non-EEA nationals, including economic migrants, refugees and those with legal status to remain in Ireland? is unsurprising but nonetheless disappointing. This means that direct provision falls outside law and policy once again.
A final potential point of concern is the lack of any reference to relevant research reports, the ESRI?s Annual Monitoring Report on Integration, academic studies of integration and so on. Perhaps this is to be welcomed as it means that the strategy favours a pragmatic approach. However, this could also result in a lack of coherency and the lack of a developed vision of integration and its implications.
admin - Tue Apr 25, 2017 20:42
Lawyers for Choice has produced a draft bill that gives effect to the Citizens? Assembly?s recommendations for abortion law reform. The purpose of the Bill is to codify the Assembly?s proposals, and to show how simply and easily that can be done. The provisions reflect the choices of the Assembly members? and not those of […]
Lawyers for Choice has produced a draft bill that gives effect to the Citizens? Assembly?s recommendations for abortion law reform. The purpose of the Bill is to codify the Assembly?s proposals, and to show how simply and easily that can be done. The provisions reflect the choices of the Assembly members? and not those of Lawyers for Choice.
Regrettably, the Assembly?s deliberations on legislation were confined to grounds for accessing abortion only. Experience worldwide shows that, even where grounds are well-drafted, abortion can be difficult to access. The Oireachtas must pay attention to barriers to access such as obstructions outside of clinics, the circulation of misleading information on abortion, underfunding of services, and conscientious objection. Any final legislation must make provision for these matters.
In addition, we regret that the Assembly was unable to consider the decriminalisation of abortion, which is clearly required by international human rights law.
We welcome the Citizens Assembly?s recommendation that abortion be available on request up to 12 weeks, and on socio-economic and health grounds up to 22 weeks. However, we are concerned that the Assembly process did not always give members the opportunity to consider international best practice in the drafting of abortion legislation. To this end we note:
The draft Bill can be accessed in full here.
Eoin Daly - Mon Apr 24, 2017 11:50
NUI Galway has announced the appointment of Professor Siobhán Mullally as the Established Professor of Human Rights Law and Director of the Irish Centre for Human Rights at NUI Galway. Professor Mullally will take up her post in September 2017. Professor Mullally is currently a Professor at the School of Law, UCC where she also […]
NUI Galway has announced the appointment of Professor Siobhán Mullally as the Established Professor of Human Rights Law and Director of the Irish Centre for Human Rights at NUI Galway. Professor Mullally will take up her post in September 2017.
Professor Mullally is currently a Professor at the School of Law, UCC where she also holds the position of Vice-Head of the College of Business & Law. She was recently elected President of the Council of Europe expert group on human trafficking, GRETA. Professor Mullally is also a Commissioner of the Irish Human Rights & Equality Commission and a member of the Permanent Court of Arbitration in The Hague.
For further information see here.
admin - Sun Apr 23, 2017 12:31
We are pleased to welcome this guest post from Dr. Deirdre Duffy from the Liverpool-Ireland Abortion Corridor Project. As the Citizens? Assembly turn to the ?when? of abortion access, many are highlighting that allowing first trimester abortion in specific cases is highly problematic. The question of access and first trimester care is complex so it […]
We are pleased to welcome this guest post from Dr. Deirdre Duffy from the Liverpool-Ireland Abortion Corridor Project.
As the Citizens? Assembly turn to the ?when? of abortion access, many are highlighting that allowing first trimester abortion in specific cases is highly problematic. The question of access and first trimester care is complex so it is worth summarising the key problems with first trimester focused access.
Barriers to access
A central problem in the timely administration and delivery of high quality care is the existence of ?barriers to access?. These barriers can be structural, organisational, social, or personal and are usually a combination of a number of factors which prevent those who need care from getting it. By ?getting? here it is vital to recognise that patients are not passive – care is a dynamic process of requesting/approaching and being given care.
Importantly for Ireland, barriers to access are not just imposed from above but are embedded in cultures of care. So removing a barrier is more complex than simply funding an abortion clinic (for example) or making abortion legal as while the clinic may exist it may not have trained staff or have staff willing to perform abortions.
Access and abortion care
In addition to questions about availability of trained professionals, financing of facilities, and proximity, abortion care has to factor in further barriers relating to abortion stigma and attitudes to abortion and women seeking abortion. As a result of abortion stigma, women may not approach care facilities for fear of repercussions. This barrier can be compounded by underlying norms and social factors both within and beyond caring institutions. If, say, a religious organisation which opposes abortion in all circumstances is placed in control of a hospital, a significant barrier to abortion care will inevitably result.
Abortion care access also needs to recognise the ?timings? of care-seeking and care-giving. Women may not know they are pregnant until well into the first trimester. Furthermore, health problems (foetal and maternal) become more apparent as pregnancy progresses. Acute care needs may only be detected in the second trimester or later and even then access may be limited by a lack of geographically proximate facilities.
What does this mean for a first trimester focused law?
The key problem with a first trimester law in Ireland is that barriers to first trimester abortion care are not impacted by liberalisation of abortion under 12 weeks gestation. Doran and Nancarrow?s systematic review (http://jfprhc.bmj.com/content/41/3/170.short?utm_source=rss&utm_medium=rss; paywall) on barriers and facilitators for abortion care in countries where abortion is legal and the Guttmacher Institute?s regular reviews of barriers to care in the United States highlight core barriers which may not be impacted by this sort of change. These are divided into patient and provider perspectives in the table below.
Synthesis of barriers to first trimester abortion care – from Doran and Nancarrow (2015)
What would this mean in practice?
If a first trimester liberalisation is instituted then the front-line of sexual and reproductive and maternity care in Ireland will need to be closely explored. As research I have already been involved in highlighted (see here: https://mcrmetropolis.uk/blog/what-happens-when-women-have-to-travel-abortion... ) communication between services in Ireland is not consistent. There are also significant issues relating to the cultures in hospitals – particularly if the Sisters of Charity are to be given ownership of the National Maternity Hospital, the key destination for acute maternal and foetal medicine – which will not be addressed by a legislative change.
Máiréad Enright - Thu Apr 20, 2017 17:28
by Mairead Enright. (@maireadenright) In Ireland, the abortion debate is often conducted by reference to Britain. Conservatives associate the Abortion Act 1967 with the bogeyman of ‘abortion on demand’. In the struggle to ‘be different from Britain’, we perhaps miss some of our commonalities with other countries which have taken a similar route to regulating abortion. […]
by Mairead Enright. (@maireadenright)
In Ireland, the abortion debate is often conducted by reference to Britain. Conservatives associate the Abortion Act 1967 with the bogeyman of ‘abortion on demand’. In the struggle to ‘be different from Britain’, we perhaps miss some of our commonalities with other countries which have taken a similar route to regulating abortion. Ireland is unusual in ‘writing abortion into the Constitution’, but it is not alone. It is very difficult to generalise across jurisdictions, especially because Constitutions perform different functions in different jurisdictions, and are subject to different procedures for amendment. However, a quick survey suggests that Ireland has only about 20 fellow travellers; a few in Europe (such as Hungary and the Czech Republic), more in South America, where the trend began (Chile, Honduras, Ecuador, El Salvador) and the rest in Africa (Swaziland, Somalia, Uganda, Kenya, Zambia, Zimbabwe etc). I am not sure if this is an exhaustive list, and would be grateful for corrections and references. Constitutional abortion provisions take a variety of different forms. Some date to the 1980’s while others are very new.
What have the results been?
A constitutional abortion provision is generally a mark of restrictive abortion laws. As shorthand, if you use the Center for Reproductive Rights well-known map of abortion laws, you will find most of these countries in the ‘red’ zone with Ireland; officially prohibiting abortion or allowing only life-saving abortions. These regimes are incompatible with women’s human rights to freedom from inhuman and degrading treatment, health, autonomy and so on. A few of our fellow-travellers are in the ‘yellow zone’, permitting access on grounds of physical and sometimes mental health and foetal impairment. Whatever the law says on paper, practical access to abortion is often poor, even for those women entitled to it in principle.
However, not all of these countries have such restrictive abortion laws. Hungary and the Slovak and Czech Republics have more liberal abortion laws than Ireland, at least on paper. A general statement of the obligation to protect unborn life does not in itself translate into either criminalisation, or restrictive grounds for abortion. The Constitutional Court of the Slovak Republic held in 2007 that a 12 week period of abortion on request was compatible with the constitutional provision on unborn life. Despite the Constitution’s foetal life provision, it was possible for the Slovak court to come to a similar position to that taken by constitutional courts elsewhere in Europe. Ireland’s Supreme Court has not be able to draw similar conclusions because the Supreme Court in X held that the mother’s right to survival and the foetus’ right to be born are equal.
That said, foetal life provisions are malleable, as are all constitutional rights. They operate in their particular context. Similar constitutional provisions are invoked to support regressive abortion policy in Hungary,and criminalisation of women in Ecuador. They can also ground extremely restrictive judgments by superior courts, as happened, for example, when an attempt to decriminalise abortion in the Dominican Republic was struck down, and when the Chilean constitutional tribunal blocked government efforts to distribute the morning after pill. Famously in El Salvador in 2013, the Supreme Court denied a seriously ill woman a termination even though her foetus could not survive birth.
The African provisions might catch the eye of those lobbying for ‘replacement’ rather than repeal. Some of these are indeed liberalising amendments by comparison with what preceded them. However, they are vulnerable to political intransigence. In Kenya, for example, lack of guidelines interpreting the constitutional provision has left doctors unwilling to provide legal abortion services. A case is forthcoming in the High Court. In Swaziland, although women’s groups welcomed the constitutional reform, no steps have been taken to legislate for abortion. Inconsistent interpretation of the abortion law has also been a problem in Uganda. As we know in Ireland, while abortion is in the constitution, legislators can (perhaps paradoxically) shirk their responsibility to legislate for it.
How does abortion end up in the Constitution?
It is impossible to answer that fascinating question fully for all of these very different countries, in all their complexity, in a single blog post. In Ireland, constitutional abortion law has been a place to work through and make statements about national identity; abortion is the place where religious, post-conflict and post-colonial tensions meet. In 1983, PLAC capitalised on a period of political instability to place a near-permanent block in the way of women’s reproductive rights. It is an old adage that these tensions are worked out over women’s bodies, often with the assistance of powerful foreign lobbies.
Sometimes the identitarian nature of other countries’ law seems to appear on on the face of it. Somalia’s abortion provision, for example, explicitly references the shari’a. In other cases, we have to look to the context in which the provision was inserted into the Constitution.
Older constitutional abortion laws are associated with regimes which place a premium on national identity, whether as part of a process of self-definition after a prolonged period of violence, or as part of an ideology of ‘national security’ associated with military authoritarianism. Honduras’ provision is in a constitution passed in a period of instability after 10 years of military rule. One of the oldest constitutional abortion laws is Chile’s; passed by referendum in 1980 under Pinochet’s dictatorship. It is also interesting to note that many of the African countries mentioned, like Ireland, inherited their abortion law from the British in 1861. Abortion is tied up in postcolonialism, for them as for us.
Often the presence of an abortion provision reflects a religious backlash against what is perceived as unduly permissive abortion law. Zambia’s Constitution, for example, permits the government to legislate for abortion, and abortion is legal on narrow grounds. A new Zambian Constitution passed last year but a proposed constitutional provision – inserting a foetal right to life – has been deferred, pending the achievement of consensus. The new foetal life provision was intended to reflect the ‘Christian values’ underpinning the new Constitution. In Kenya, church leaders demanded a ‘no vote’ to the 2010 Constitution on the basis of its abortion provisions, even though they did not change the content of the pre-existing abortion law at all. Similar pressures succeeded in El Salvador, where in 1999 the Catholic church was a significant force in securing a foetal life amendment to the Constitution against feminist opposition. The involvement of the institutional Catholic church in repressing abortion reform is a theme across Latin America, where hostility to abortion has proved compatible with Leftist as well as with conservative government.
There is surprisingly little comparative work on constitutional abortion provisions. Ireland, however, would do well to pay attention to constitutional abortion provisions as a legal strategy; to ask what they have been used to do elsewhere; and to pass future laws which express, not a faith in Irish exceptionalism, but an awareness of the 8th Amendment’s global resonances. We tend to associate constitutional law with certainty and technicality, but a quick review of the history of constitutional abortion provisions suggests different associations; with stalled law-making, human rights abuse, and sacrifice of women’s interests in the pursuit of shared values.
Liam Thornton - Tue Apr 18, 2017 15:06
On Wednesday, May 3 2017 from 1.30pm UCD Centre for Human Rights is hosting a seminar in the Irish Human Rights and Equality Commission (map here) on Northern/Ireland After Brexit: Exploring the Human Rights Impact. With five speakers engaging with intersections of constitutionalism, gender, human rights and borders,this seminar seeks to reflect on human rights implications of Brexit upon the […]
On Wednesday, May 3 2017 from 1.30pm UCD Centre for Human Rights is hosting a seminar in the Irish Human Rights and Equality Commission (map here) on Northern/Ireland After Brexit: Exploring the Human Rights Impact.
With five speakers engaging with intersections of constitutionalism, gender, human rights and borders,this seminar seeks to reflect on human rights implications of Brexit upon the constitutional settlement(s) on this island.
The full programme, speakers and paper abstracts can be accessed here.
Seminar delegates can register for the conference here (selecting the free of charge option unless CPD is required, for which there is a ?60 charge)
Call for Applications: Challenges to International Criminal Justice Summer Academy Northumbria University, Newcastle 12-16 June 2017
Charles O'Mahony - Tue Apr 11, 2017 19:20
Northumbria Law School is pleased to announce its 1st Summer Academy on Contemporary Challenges to International Criminal Justice(Law & Criminology) will take place in Northumbria University, Newcastle from 12-16 June 2017. This novel summer academy provides a unique opportunity for participants to acquire in-depth knowledge on the most pressing issues facing the international criminal justice system […]
Northumbria Law School is pleased to announce its 1st Summer Academy on Contemporary Challenges to International Criminal Justice(Law & Criminology) will take place in Northumbria University, Newcastle from 12-16 June 2017.
This novel summer academy provides a unique opportunity for participants to acquire in-depth knowledge on the most pressing issues facing the international criminal justice system from the leading scholars and practitioners in the field. Speakers will share their expertise and experience on a varied range of topics to encourage and inspire postgraduate research in law and criminology.
The themes of the summer academy are:
The list of distinguished speakers:
Professor William Schabas (Middlesex University/Leiden University) – Judge Howard Morrison (International Criminal Court) – Judge Professor Wolfgang Schomburg (International Criminal Tribunal for the former Yugoslavia 2001-2008, Durham University) – Judge David Baragwanath (Special Tribunal for Lebanon) – Judge Professor Philip Weiner (Extraordinary Chambers in the Courts of Cambodia) – Professor Roger S. Clark (Rutgers Law School) – Mr Karim A.A. Khan, QC (Temple Garden Chambers, International Defence and Victims Counsel & former Prosecutor) – Dr. Rod Rastan (Legal Adviser, Office of the Prosecutor, International Criminal Court) – Professor Tim Wilson (Northumbria University) – Professor Roger Clark (Rutgers Law School) – Dr. Mohamed El Zeidy (Legal Officer, Pre-Trial Chamber II, International Criminal Court) – Dr. Tanya Wyatt (Northumbria University)– Dr. Noelle Higgins (Maynooth University) – Professor Michael Rowe (Northumbria University) – Mr. Patrick Schneider (EU Office of the Special Representative for Bosnia and Herzegovina) – Dr. Michael Kearney (Sussex University) – Mr. Krmanj Othman (KRG High Committee for the Recognition of Genocide against Yezidi Kurds and other minorities) – Dr. Patricia Hobbs (Brunel University) – Dr. Hakeem Yusuf (University Birmingham) – Dr. Elena Katseli (Newcastle University) – Dr. Jamie Harding (Northumbria University) – Dr. Ibrahim Shaw (Northumbria University) – Professor Nigel South (University of Essex) – Dr. Damien Short (University of London) – Professor Chrisje Brants (Northumbria University) – Professor Liz Campbell (Durham University) – Dr. Mohamed ‘Arafa (Indiana University) – Ms. Gemma Davies (Northumbria University) – Dr. David McGrogan (Northumbria University).
This event is a wonderful opportunity for international lawyers, legal interns, academics, and present and future postgraduate students to meet eminent scholars and practitioners in the field of international criminal justice as well as like-minded colleagues from all over the world.
For further information and to register please visit www.northumbria.ac.uk/about-us/news-events/events/2017/06/northumbria-univers... or email firstname.lastname@example.org. Participants may register to attend individual sessions or the whole event. Please note that places are limited and the deadline for ‘early bird’ registration is Monday 17 April 2017.