*By “free” I mean “you have to give Choice Ireland a fiver first.”
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The thing about being a pro-choice activist is that perhaps unsurprisingly, people want to talk to me about abortion. A lot. People will tell me their own abortion stories or ones they’ve heard. I’ve had people who are just barely friends of friends tell me stories of how they’ve travelled on their own with barely enough money to have an abortion in an English clinic.
Sometimes I will be the only person that they will ever tell in their whole lives that they had an abortion.
They place their trust in me because they think I am the only person they can tell without being judged for their decision, and even then they’re never quite sure, but maybe it just felt good to tell someone. I feel sad that they couldn’t tell their Mam or their sister or husband, and sad they had to go through that. And I never tell anyone.
Sometimes though, someone will come to me in crisis and ask for advice on how to arrange their abortion because they don’t know how to navigate such things. How would they? It’s not something that people have an emergency plan for. An escape route as such. They don’t teach you that in school. There’s no organisation out there that you can ring and say, “Hey. I’m in Ireland. I’m in a crisis pregnancy situation, please make the requisite arrangements for me, you can start with getting me the days off work and booking my flights.”
“Crisis” never seems an adequate word to describe these situations that women find themselves in. Sometimes it’s utter terror and sheer undiluted panic.
There’s always a lot of talk about abortion as an abstract concept unconnected to real women but merely represented by letters of the alphabet, X, C, D, A, B, C. But fifteen women leave Ireland every day to have abortions in England. These women are your mothers, your aunts, your sisters, your daughters, your friends, your girlfriends and your wives. They have names, and feelings and the awful experience of having had to work out the logistics of travelling overseas to have an expensive medical procedure they should be able to get in their own local clinic for free.
If you are asked for advice, whether you’re an activist or their friend, you might have to ask them some questions. They are the questions that people don’t think of. They are the things that are irrelevant to those who make the decisions around the provision of women’s medical treatments in Ireland. They are the logistics of arranging abortions.
Do you have the internet? If you have, do you know how to delete your browser history so that your violent partner doesn’t know what you’re up to? Can you go to an internet café where nobody knows you? Bring tissues just in case. Do you know the number of the local women’s refuge?
Have you been to the doctor? How far along are you? Do you know the further along you are, the more expensive an abortion is? Can you get a loan from a Credit Union? Or will you go to a money lender? Do you have anything you can sell to raise the money? Can you lie to your parents or friends to borrow money? Can you max your credit card? Do you even have a credit card? Are there any bills that you can get away with not paying this month? Have you gone through all your old coats and looked down the back of the sofa? How long will it take for you to get €1,000 together? Can you get an extra €20 off the Community Welfare Officer? Can you not buy coal for the next few weeks? Are you on the dole? Can you use your savings? Can you defer your year at college and save the money for your Master’s Degree again? Is it Christmastime? Can you return any gifts for a refund or sell them for cash?
Women with money have options, women with nothing have babies.
Do you have travel documents? A passport is €80 and Ryanair will only let you travel with a passport. Can you get a Driver’s Licence? You’ve lost it? Aer Lingus will let you travel on a work ID. Your work ID doesn’t have a photo on it? You’ll need a passport then.
Are you an Asylum Seeker? Ok, then you need to get travel documents that will allow you to re-enter the state. Who is your solicitor? Is he or she pro choice? How much does he or she charge to help you with this?
How are you fixed for time? Can you only travel on a Sunday because that’s the only day you can “disappear” for where people won’t ask questions? Ok, but you know that it will be tough to get an appointment because there are less than a handful of clinics that will open on a Sunday? Most are closed Sundays. Many are closed on Saturdays. But you better have a fall-back plan because some of the clinics that open on certain days can’t do certain procedures. Do you have a fall back plan? Can you go home to Ireland and come back on Friday? Are you in the middle of your Leaving Cert.? Do you have to wait until after your exams to travel? Will that be more or less stressful?
How do you know that the clinic you’re looking at is actually a clinic and not a rogue crisis pregnancy agency?
Have you been able to figure out how to transfer money from Euros to Pounds without someone noticing on the bank statement?
Have you managed to get the day off work? Will you be calling in sick? Do you need two days off? Do you have any annual leave days left?
Do you live near the airport? Can you take a taxi to the airport? Don’t forget, the taxi driver will make idle chit-chat and ask you where you’re going once he hears ‘airport’. Don’t panic, he doesn’t know it’s for an abortion. Tell him you’re visiting an Aunt.
Or are you from down the country? Can you take a night bus and sleep in the airport to get the 7 am flight? Have you remembered your passport?
Did you manage to get someone to mind your kids? Or are you going on your own because your partner is watching them? Do you still have a partner? Is he supportive of your decision or, when you showed him the results of the pregnancy test did he walk out the door?
Or do you live in Shannon or Knock where there is only one flight out per day and due to the time of that flight, you have to stay overnight two days? Can you tell your partner you’re going to a hen weekend or something? Or a work conference? Or will you tell the truth?
How is your health in general? Have you told your GP? It’s not ectopic? Is your BMI ok? Because if it’s really high, the clinic could send you home from England without having an abortion because that procedure is only done in some places. Can you come back again next Friday? I know that means more flights, more days off work, and now you’re over 14 weeks which makes it more expensive but this is what we’re dealing with.
Do you definitely know how far along you are? Sometimes a woman can end up at a clinic and realise that she’s a little further along than she thought because she couldn’t get the money together and only a few clinics go past 18 weeks. As different doctors have different specialities, some doctors only provide treatment to 12 weeks.
Is this a pregnancy you wanted but you’ve been told that the foetus won’t survive to birth? Do you have a health condition that means you have to have an abortion? Is it something to do with blood clots because pregnancy increases the risk of blood clots so maybe you should get the ferry instead of the plane, and I know it’s a five hour train journey when you get there but there isn’t any other option I’m afraid.
Do you know how to get from the airport to the abortion clinic? Some clinics have a free taxi service but most don’t. Some provide pick up service but after the appointment you’re on your own. Have you checked the bus times?
I know you’ll be gasping for a cup of tea after sleeping in the airport but remember you can only have water just in case an anaesthetic is needed and you can’t eat. Or smoke, but what’s there to be nervous about, right? It’ll all be over soon.
Don’t worry, you’ll be ok, you shouldn’t have had to go through this but there are people working to change this awful, awful situation. I promise you.
Fine Gael’s Leo Varadkar, in a shining example of how to make friends and influence people, excelled himself with his comments indicating that some women may have to give up their jobs in order to avail of the new personal insolvency service. The TD’s comments were picked up in The Irish Examiner;
“I know one or two women who probably don’t make very much money at all from working, but they do it to keep their position on the career ladder, if you like, and that is a legitimate thing to do.
“But if you can’t pay your mortgage as a result, or buy your groceries as a result, then that is something that needs to be taken into account in any insolvency arrangement.
“Nobody is asking anybody to give up their jobs. What is going to happen is that people are going to come forward, they are going to say ‘I can’t pay my debts, I can’t pay my mortgage’, and in that case, the insolvency practitioner will go through with them why they can’t pay their bills, and obviously a creditor is not going to agree to a writedown unless that has been gone through and they can work out what is the most they can pay.”
We all know two income families where there are women working, and realistically they might be just about breaking even due to the cost of childcare. The outrageous cost of childcare is due to the fact that the Government have failed utterly in ensuring a state childcare system that is affordable and accessible for women or dare I say it, state-funded through an equitable taxation system and free to avail of.
Parents do not enjoy paying out the price of a mortgage to have someone mind their children, but they do it because they have to. They think “My child will be in school when they’re 4 or 5, this is hard but it’s only for a few years.” Working mothers will often add on a bit to the end of that sentence, “…this is hard but it’s only for a few years, and at least I’ll still have my job at the end.”
The implication of Varadkar’s comments are clearly that women in those situations where it may be a short-term cost to work should give up their jobs in order to avail of the personal insolvency arrangements. There is no other way of interpreting it.
And make no mistake about it he means women and women only should give up their jobs. Women for the most part earn less than men and it is they who should sacrifice their careers in order to save the family home. If they don’t do this, they can’t partake in the system and if the bank succeeds in having the home repossessed, well it’s Mammy’s fault because that selfish bitch wouldn’t give up her job. Dear Women, Leo Varadkar wants you to pull your socks up and get on with the hoovering because you have no business in trying to make your way in the workplace. That’s man stuff.
The problem with the new personal insolvency arrangements is that they’re wholly inadequate to deal with the level of distressed mortgages and personal indebtedness across the state anyway, so the number of people who will enter them will be limited to say the least. Most women and working mothers who are in debt now, are going to carry on being in debt and no amount of Varadkar’s nauseatingly nonsensical comments will change that.
But in Deputy Leo Varadkar’s world, women after giving up their engagement ring and then sacrificing their jobs because of childcare costs will enter an arrangement with the bank in which they’ll rearrange their debts and mortgage payments. Their children will go to school eventually and they’ll be told to go back to work. Except now there are no jobs so they’ll be dependent on their partner (if they still have a job) or social welfare payments or the kindness of St. Vincent de Paul, because if there’s one thing that Varadkar obviously doesn’t understand, it’s the difficulty that exists for women in attempting to re-enter the workplace after a prolonged absence. The Government is too busy bailing out banks instead of setting about creating jobs, or heaven forbid, doing a fundamental overhaul of how society is structured.
What this demonstrates is how women and women-focused issues are deemed completely irrelevant to the discourse around indebtedness, employment, and even motherhood in Ireland. Who cares if the childcare cost is arguably temporary and leaving her job contains a risk that may result in not getting another job a few years down the road? Who cares that nobody wants to acknowledge that childrearing is a form of labour? Who cares that women are expected to be responsible for childrearing, housework and labour outside of the home? Who cares that it costs up to €2,000 a month to put two children in a crèche? Certainly not the good and the great of Fine Gael.
Nevertheless the focus on women becomes very important when it comes to laying the blame at someone’s door. Just like working class single Mams have been demonised for having children and blamed for their lot of poverty since time began, indebted Mams will now be demonised for not giving up their jobs and sacrificing the family home, or alternatively giving up their job and then being unemployed when their children go to school. Realistically, who is going to stay working when the roof over their head is at risk? One would suspect it’s very few.
For women it’s a lose-lose situation. This is part of a strategy designed to make women work within the home for free to enable men to work outside it for payment. For a State that supposedly extols motherhood and deplores the fact that the reason most Irish women have abortions is because they do not have the financial means to raise children, it’s a particularly peculiar way to act.
Leo Varadkar’s attitude is like something out of an episode of Mad Men, envisioning a world where men are men and women are grateful, but perhaps the women of Dublin West won’t be so grateful at the polling stations during the next general election and if the men had any sense they won’t be so grateful either.
Savita Halappanavar was a 31 year old Indian dentist based in Galway, Ireland. She was married to Praveen Halappanavar who was a 34 year old engineer. Savita was pregnant. On the Sunday 21st October 2012, she presented to University Hospital Galway with back pains while in her 17th week of pregnancy.
Sadly, hospital staff told her she was miscarrying her pregnancy but there was still a foetal heartbeat present.
The doctors in the hospital told Savita and Praveen that her cervix was fully dilated and that amniotic fluid was leaking. They also told Savita that the foetus would not survive – but it would be over in a few hours.
For the following three days, Savita was upset and in “agony” but according to Praveen she had accepted that she was having a miscarriage and the doctors continued to check the foetal heartbeat. She asked the doctors on several occasions to terminate her pregnancy. They had said there was no prospect of the foetus surviving.
On Monday 22nd October, the consultant did ward rounds. Savita asked the consultant if there was no prospect of saving her pregnancy, could doctors induce to end the pregnancy instead. The consultant responded “As long as there is a foetal heatbeat, we can’t do anything.”
The same conversation took place with the consultant on the morning rounds of Tuesday 23rd October, and the consultant said that nothing could be done, as it was “against the law” and “this is a Catholic country.” Savita responded that she was a Hindu but the consultant said that there was nothing to be done. During that evening, Savita began to shake and shiver. The pregnant 31 year old began to vomit. She went to the toilet where she collapsed. Doctors took blood tests and gave her anti-biotics.
On Wednesday 24th October, Savita was still sick, and she and Praveen again pleaded with doctors to end her pregnancy and the response was unchanged from the previous days.
It is the law. It is a Catholic country. There will be no termination.
An open cervix has the same risk of infection as an open head wound.
Her cervix had been dilated since Sunday.
At around lunchtime, the foetal heart stopped and doctors brought Savita to theatre where they removed the womb contents. After the procedure she spoke to her husband Praveen, but she was very sick. This was the last time Praveen spoke to his young wife.
At 11pm that night Praveen received a call from the hospital to say she was being moved to an intensive care unit. Her heart was low. Her pulse was low too. Her temperature was high. The doctors said she was critical but stable.
By 7pm on Saturday her heart, kidneys, and liver were no longer functioning. She had contracted septicaemia and E.coli ESBL.
Savita Halappanavar, 31 year old Indian dentist, and wife of Praveen, died during the early hours of Sunday morning in this “Catholic country”. Praveen brought his wife home to be cremated in India. She was laid to rest on November 3rd.
Savita should have been celebrating Diwali this week with her husband.
Instead, the Health Service Executive have started an investigation in to her death and University College Hospital have extended their sympathy to her family and friends. External experts are being consulted and a ‘risk review’ is being carried out.
Under Irish law, the Supreme Court decision handed down in the 1992 X Case, Savita would have had a right to a legal termination of her pregnancy where there was a “real and substantial risk to her life.” There must not merely be a threat to a woman’s health. She must be at risk of death for an abortion to be performed legally in Ireland. But it is a Constitutional right in that case, according to the Supreme Court.
There is no legislation to give effect to this though.
Seven different governments have decided that women at risk of dying as a result of their pregnancies are not important enough to provide a law for. There are no legal rules to say to a doctor that yes, an open cervix for a number of days is a risk to a pregnant woman’s health, or that it may be such a risk to her health that it veers in to the category of being a risk to her life, and she is therefore constitutionally entitled to an abortion. Yes, the medical profession will know when a woman is at risk and when she isn’t, but there is no clarity as to whether there is legal cover for them to be able to act in a case such as Savita’s. They could be liable for severe penalties under the Offences Against the Person Act 1861 if they are found to not have the legal cover required.
Perhaps the doctors in this case genuinely felt that there was not such a high risk of infection and that this did not reach the very high standard of being a “real and substantial risk to her life”. However, the response the consultant gave Savita and Praveen while she was pleading in agony for a termination was that it was “against the law” in “this Catholic country” – rather than “you don’t actually need a termination.” Strange that.
The European Court of Human Rights said during the ABC v Ireland case that women should know under what circumstances they are entitled to a lawful termination in Ireland. It is a ruling based on the constitutional law of Ireland.
For many years, some prochoice activists have been of the clearly held view that, when it comes to the political establishment, someone would actually have to die before the Government would legislate for the Supreme Court decision in the X Case handed down twenty years ago. If the HSE inquiry finds that Savita died as a result of not receiving a termination, leaving her open to the massive risk of infection which eventually killed her, this Government, and the six Governments that have gone before them must realise her blood is on their hands. That is not to be melodramatic about things. A woman has died. If the HSE inquiry finds that Savita did not die from being prevented from having a termination and it was something else, her story will still send shivers down the spines of every woman in Ireland who has had a miscarriage who may well think “what if that had been me? What if the foetal heartbeat hadn’t stopped when it did?” - because under those circumstances there is still a real and substantial risk of death. The fact remains, there are some conditions that will arise in pregnancy that will make the pregnancy itself life-threatening.
At this stage, it is either wilful ignorance or complete and utter misogyny that prevents the Government in Ireland from legislating for the X case to allow women in life-threatening situations have abortions legally and safely. The ABC case judgment was delivered in 2010. The Government responded by convening an Expert Group to examine “options” rather than actually produce legislation. The time is now over for the Expert Group.
While the Expert Group are examining, there is no way of knowing whether there is a woman in a hospital somewhere in Ireland with a dilated cervix miscarrying and pleading for a termination to take place. We have no way of knowing whether there is a woman contracting the e.coli that will kill her at this very moment because doctors have refused to terminate her pregnancy.
It is time to legislate for X. Savita Halappanavar should not be dead.
This must never happen again.
A PR disaster for feminine hygiene company Femfresh developed on the internet this week after their refusal to use the word “vagina” on their facebook page. Femfresh make feminine hygiene wipes – that is, wipes for vaginas, among a range of other products from gels to washes that serve the same purpose. One would expect that a company in the business of selling vagina-related products wouldn’t have any problem with saying the word vagina.
It was not to be. Instead of saying the v-word they took to using a number of words instead of it such as “va jay jay, kitty, nooni, lala, froo froo!” to describe women’s vaginas. It would be interesting to see transcipts of the discussions of their marketing meetings where that decision was made.
Their Facebook page, which has now been deleted as a result of the uproar, was aghast with comments from rightfully disgruntled women who took umbrage with the fact that the Femfresh felt the need to give their vagina a new, rather infantilised, and for many insulting, name. The Facebook page showed an image of a woman at a festival under which someone added the most wonderful comment;
“I can’t go to any festivals! I’ll be too busy sitting at home crying about the embarrassing smell of my shame-shame.”
It generated a very interesting discussion on various blogs about why women took offence to the Femfresh idea that there was something offensive about the word ‘vagina’ and why it really didn’t need another name because the word ‘vagina’ was sufficient in itself.
The thing is though; nobody should be really surprised that Femfresh would consider that the word ‘vagina’ is too offensive to use on their facebook page and that a more sanitised word should be employed instead. Their whole business is based on the premise that vaginas are inherently offensive and in need of sanitising -coincidentally, women have the opportunity to make their genitals less offensive if they buy Femfresh products to wash themselves with. It wouldn’t do to let women believe that their genitals are pretty much fine in their natural state.
This is about sending women a message that female bodies, where they are not aided by products that alter their natural state, be it their skin colour, hair levels, or ph balance for that matter, are unfeminine and unnatural and it is imperative that women engage in the alteration and self-regulation of their own bodies. To just wash normally, according to Femfresh, would not be hygienic enough, despite being contrary to all known medical evidence, so one must buy their product and do something extra. Where is Foucault when you need him?
There are rules within patriarchal capitalism and women who do not conform to the self-regulation of the body must be painted as being abnormal lest it threaten the sales of body-altering products. Although she wrote on the issue of weight, it’s rather similar to philosopher Elizabeth Grosz’s idea that women’s bodies in their natural state in Western societies are construed as being uncontained, uncontrolled and dangerous to a Western Patriarchal order. The woman’s body is positioned as being in need of control when in its natural state – almost as if it possesses a formlessness and disorder that threatens the order of patriarchy if left untamed. A body in no need of “untaming” would have no need for the purchase of commodities to tame it, and where would that leave capitalism?
Medical discourse decides what is healthy, and Femfresh (as well as other companies selling similar products) have attempted to appropriate the ability to control the “ph balance” of a vagina despite the fact that the vagina is self-regulating when it comes to its ph balance. But products sell much faster when you convince people that it’s for the good of their health.
There are many similarities to the marketing of these products and menstruation products. Simone De Beauvoir wrote about the idea of shame attached to the female body as far back as 1949;
“It is not easy to play the idol, the fairy, the faraway princess when one feels a bloody cloth between one’s legs”.
And even today despite its normality (for the majority of cis-women at least) menstruation or even the natural and normal activity of what goes on between a woman’s legs is deemed to be a tainted aspect of femininity that she must keep hidden and secret at all times – because any other party’s knowledge of it would damage her femininity.
Advertisements for Femfresh style hygiene products as well as menstrual products depict the unattended woman’s genitals as a threat to the traditional image of femininity. Even the packaging for the products is specifically designed so as to be “discrete” and the secrecy of compliance with menstrual etiquette serves to reinforce to women their status as objects, and not as humans. This type of grooming is portrayed by these companies as a method for women to self-improve on the way to self-fulfilment; liberation will be found in the idealised body type – you must look a certain way, and you must smell a certain way. As they frame it, to not engage in this practice is to let yourself go and for a woman – according to the terms of patriarchal capitalism – to let yourself or your body go is to reject womanhood itself.
Thus self-improvement can be achieved, but it must be purchased by using more products and spending more money. For Femfresh the process is not an optional extra – it is about being healthy and maintaining a ph balance after all – it is about paying to bring the body to a state of normality as they have defined it and rescinding the body’s own control of itself.
The Rape Crisis Network Ireland has released a statement today detailing statistics concerning pregnancies resulting from rape, as well as the number of those women that chose to terminate their pregnancies. It is a timely item for discussion given the recent publication of Medical Treatment (Termination of Pregnancy in Case of Risk to Life of Pregnant Woman) Bill 2012, and the fact abortion is once again, on the minds of many. In saying that, the release of this statement in the context of this legislation demonstrates just how far behind Ireland is – this legislation, if passed, would not actually allow for abortion in cases where the pregnancy was a result of rape.
When pregnancy and rape come up in discussions, anti-choice activists tend to be fairly consistent in their willingness to withhold access to abortion for women when they have been raped, and they tend to anchor their argument in the idea that because pregnancy as a result of rape is “rare” that this somehow means that a woman who has been violated in the first instance should have her body further violated by being forced to carry to term the pregnancy of her rapist. The real meaning of that kind of rhetoric is, “Pregnancy from rape is rare; and you do not own your body anyway; therefore you will not make choices as to what happens with it.”
But even if the assertion that pregnancy from rape is rare was correct, the rarity of a pregnancy does not mean that it is a valid reason to withhold access to abortion for a rape survivor. It is bad enough that anti-choice lobbyists do not believe in the most basic self-determination of a person that would afford a woman a choice as to what happens her body normally, but it really does take a special kind of person to tell a rape victim that she should be compelled to carry a pregnancy of rape to full term against her will.
The RCNI Director Fiona Neary has said of the statistics,
“The RCNI would have concerns that any rape survivor would be subject to restrictions and would have to travel oversees to another jurisdiction in order to access a termination….. RCCs will continue to support survivors in making decisions which survivors feel are the right choices for their circumstances.”
The statistics are so disturbing they deserve to be reproduced here in their entirety;
“In 2010 1,545 survivors of sexual violence attended Rape Crisis Centres (RCCs). Of these, a small number became pregnant as a result of rape; in total 75 girls and women. These girls and women made different choices:
Ten survivors of rape chose to terminate their pregnancies (13%)
Ten survivors chose to place their child for adoption or fostering (13%)
Forty three survivors went on to parent their children (57%)
Nine survivors of rape miscarried or had stillbirths (12%)
Three survivors became pregnant more than once as a result of rape and chose different options in each pregnancy (4%)….”
What is important to note about these statistics is not only were there 75 girls and women who were made pregnant as a result of rape, this figure only represents the number of women who attended Rape Crisis Centres over the course of one year.
This of course does not reflect the total figure of women who were raped during 2010 and did not attend a Rape Crisis Centre – which is much higher, and which would logically leave the figure of pregnancy resulting from rape higher again, and in turn increase the figure of the number of women who went on to choose a termination in this scenario. These numbers may be small, but that does not mean that the experience or trauma of their rape and subsequent pregnancy is somehow lessened by that.
Naturally, for the forced-birth advocates of the anti-choice movement this trauma is utterly meaningless.
Never ones to miss an opportunity to criticise the pro-choice lobby, the Sunday Independent contained a piece by Eilis O’Hanlon yesterday where she managed to say that although it was “absurd that governments have failed to legislate” on the X Case and that she tended “towards the pro-choice end” of the spectrum of views on abortion, that there was an element of intellectual dishonesty regarding the Bill currently being tabled by Clare Daly TD and then went on to assert that by enacting this legislation for X Case, more specifically allowing for suicide as a ground for abortion, would lead to a situation similar to England – where abortion is available in a very wide range of grounds (It is not “on demand” as O’Hanlon would have you believe – one must fall in to a qualifying risk category in order to avail of an abortion service). In the article, O’Hanlon says;
“Once they have it in law that abortions can be carried out where the mother’s life is at risk, they immediately start redefining the definition of risk until it becomes meaningless. Daly’s bill explicitly states that the risk of suicide by a mother should qualify as a reason for providing her with an abortion.
The end result, as happened in the UK, is that you would effectively have abortion on demand…” [Emphasis mine]
In fairness to O’Hanlon, she does not actually state that she is against the legislation, but she does do a very good job of trotting out the same tired old arguments against legislation for the X Case trotted out by the anti-choice lobby.
There are multiple problems, myths and lies peddled in the O’Hanlon piece but it is probably more useful to look at the one quoted above in particular, and examine Deputy Daly’s proposed legislation in detail in comparison to the law governing abortion in Britain – the Abortion Act 1967, as this is one of the main arguments being put forward by the less rational and even lesser informed of the commentariat against the Daly Bill; that is to say, if abortion is allowed in any circumstance it will allow abortion by the backdoor.
That is a factually incorrect assertion.
Before looking at the detail of the British legislation, it also may be worth noting the logical outworking of O’Hanlon’s statement here.
Either she is suggesting that a woman could be suicidal and should not be allowed a life-saving abortion in those circumstances where to continue a pregnancy would pose a risk to her life or she is implying that not only would women (under this legislative framework) would enter their doctor’s surgery and fake suicidal tendancies to get an abortion, but also that a either a Consultant Psychologist and a GP, or a Consultant Psychiatrist and a GP, or in a (fake) emergency situation, two GPs, would all happily engage in this ruse so that a woman faking suicidal feelings could have an abortion.
If this is not the implication, then the alternative is that her implication is women (under this legislative framework) would enter their doctor’s surgery and fake suicidal tendancies to get an abortion, but also that a either a Consultant Psychologist and a GP, or a Consultant Psychiatrist and a GP, or in a (fake or real ) emergency situation, two GPs, are not actually qualified to state whether she was suicidal and assess the risk to her life, and that they would err on the side of caution and provide the abortion.
This displays a lack of knowledge of not only medical practice in Ireland, but also medical culture, that renders anything else said on the issue by O’Hanlon as automatically suspect (she also repeats the myth that Ireland is the safest place in the world to go through pregnancy so it was suspect from the beginning anyway).
The Irish health system certainly has its problems, but if O’Hanlon has a genuinely held view that there are legions of GPs, Consultant Psychologists, and Consultant Psychiatrists out there all waiting in the wings to carry out abortions at the drop of a hat when they have no medical basis for doing so (because the risk to the life of the pregnant woman, in O’Hanlon’s world, is not real), and breaking the law in the process and leaving themselves open to prosecution under Sections 58 and 59 of the Offences Against the Person Act 1861 (carrying a penalty of 3 years imprisonment) – then perhaps the real story that the Sunday Independent should be covering is the major inadequacies or the mass malpractice of the medical profession, rather than O’Hanlon’s issues with the pro-choice lobby.
All of that aside, it is clear to anyone who takes the time to read both pieces of legislation in detail that the British Abortion Act 1976 and the Deputy Clare Daly’s Medical Treatment (Termination of Pregnancy in Case of Risk to Life of Pregnant Woman) Bill 2012 are very, very different pieces of legislation – the latter being constitutionally prohibited from providing qualifying circumstances for abortion beyond that where a woman would die if she continued her pregnancy.
Comparing and Contrasting the Legislation
The 1967 Abortion Act establishes that abortion is legal in Britain up to the 24th week of pregnancy in a very broad range of circumstances, that is – where the continuance of pregnancy would involve risk to her (including to her physical and mental health) or risk to her existing children etc. In essence, this means that abortion may lawfully be performed where a woman would be better off, subject to the opinions of two doctors (who need not be of consultant rank), by having an abortion than continuing the pregnancy. However, if there is a substantial risk to the woman’s life or if there are foetal abnormalities, there is no time limit. It is important to note the clear distinction between a risk to the life of the pregnant woman, as opposed to a risk to her health. In order to comply with the 1967 Abortion Act, two doctors must give their consent to the procedure, stating that to continue with the pregnancy would present a risk to the physical or mental health of the woman or her existing children. This Act does not extend to the North of Ireland.
The proposed X Case legislation however, is much narrower. Were it to be enacted in its current form, it would allow for a lawful abortion to take place only where there is a real and substantial risk to the life of the pregnant woman according to either a GP and psychiatrist, or a GP and psychologist or two GPs in the absence of being able to secure the opinion of a psychologist or consultant (allowing for an emergency situation). This includes a risk of suicide. It does not allow for abortion in cases where there is a risk to her health in general, or her mental health, or where the continuance of a pregnancy involves a risk to her existing children, or where there are foetal abnormalities.
This legislation is drafted in order to solely give effect to the Supreme Court judgment in the X Case in 1992. On the basis of the X Case judgment, it does not include a time limit to prevent abortions from taking place, presumably because as to do so would be to automatically render the Bill unconstitutional i.e. the judgment held that a woman had a constitutional right to abortion in a case where there was a real and substantial risk to her life, including threat of suicide, and to introduce a time limit on this would be to undermine the Court’s decision in that – clearly a real and substantial risk may appear after any given time limit and to adhere to a time limit in that circumstance and deny her the procedure, would be to infringe upon the constitutional rights of that woman.
(1)Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith—
[F1(a)that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or
(b)that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or
(c)that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or
(d)that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.]
(2)In determining whether the continuance of a pregnancy would involve such risk of injury to health as is mentioned in paragraph (a) [F2or (b)] of subsection (1) of this section, account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.
4.―(1) It shall be lawful for a medical practitioner to provide any form of medical treatment to a woman, despite its consequences for the life of the foetus, provided that―
(a) two medical practitioners have each formed an honestly held and reasonable belief that there is a real and substantial risk to the life of that woman, other than through suicide or another condition ordinarily diagnosed and or treated by a consultant psychiatrist or a clinical psychologist which can be averted only by the provision of that medical treatment, or
(b) there is a real and substantial risk to the life of the woman through suicide or another condition ordinarily diagnosed and or treated by a consultant psychiatrist or a clinical psychologist as determined by―
(i) one medical practitioner and one consultant psychiatrist, or
(ii) one medical practitioner and one clinical psychologist, or
(iii) , in the absence of an available consultant psychiatrist or a clinical psychologist and to prevent undue delay in the examination and or treatment of the woman, two medical practitioners,
who have formed an honestly held and reasonable belief that there is a real and substantial risk to the life of that woman which can be averted only by the provision of that medical treatment.
Section 2 of the 1967 Act requires the Minister for Health in respect of England and Wales, and the Secretary of State in Scotland to introduce Statutory Instruments in order to, stipulate the medical practitioners who may carry out medical terminations; requires that the number of terminations be recorded; prohibits the disclosure of these recordings where they are not pursuant to the regulations; set out an offence where a person wilfully contravenes the regulations.
There is no equivalent provision in the 2012 Bill. However there is a provision that stipulates the medical practitioners who may certify whether there is a real and substantial risk to the life of a pregnant woman, including whether she is suicidal. It is presumable that statistics and data regarding the number of lawful terminations carried out, were the Bill passed, would be required either by the introduction of a Statutory Instrument, or HSE Guidelines.
There are conscientious objections clauses in both pieces of legislation although they are framed somewhat differently. The 1967 Act stipulates that no person is under a duty to participate in the provision of this medical treatment where they have a conscientious objection. If this is to be tested in the courts, the burden of proof rests on the person attempting to claim it, except in the case of Scotland, where having sworn an oath to this effect will discharge the burden of proof in law. The conscientious objection does not apply where there is an immediate risk to life of the woman.
The 2012 Bill also provides a conscientious objection to participating in providing this medical treatment; however it stipulates that it must be an “honestly held and reasonable objection” to the provision of such treatment. This would initially appear to hold a slightly higher legal threshold of proving the validity of a conscientious objection, in that it must be both honestly held and reasonable in order to avail of it. However, there is no requirement on the burden of proof to be placed on the person attempting to claim it, so presumably normal proceedings under Irish law would apply – as in, the burden of proof would rest with the State in any legal proceedings and it would fall to the State to prove that a person did not have an honestly held or reasonable belief in proceedings where the conscientious objection is in question.
The conscientious objection does not apply where there is an immediate risk to life of the woman. Further to this, the individual objecting to participating in treatment must provide information to a woman about her right to such the treatment, and transfer the care of the woman to another practitioner who will perform the treatment. This may appear more onerous than the formula in the 1967 Act, however it goes on to require every health institution to have the number of required personnel in order to provide the treatment.
Therefore, it would appear unlikely that this conscientious objection provision would ever be tested in the Courts at all unless a case arose where (1) a hospital did not have the required staff on duty to perform a termination and (2) an on-duty Doctor raised a conscientious objection to participating in medical treatment where a pregnant woman presented with an real and substantial risk to her life resulting in the need for an abortion and (3) this woman actually died as a result of not receiving the required treatment resulting in (4) criminal proceedings or medical negligence proceedings being issued against the Doctor as a result of the failure to provide the emergency treatment resulting in the woman’s death and (5) the Doctor raised the conscientious objection clause to participating in the treatment as a defence in those proceedings.
Given the absence of legislation for the provision of lawful abortion where it is legal under the Constitution, this Bill if enacted would probably provide more protection for a medical practitioner who did not wish to participate in provision of such treatment; i.e. There would now be a legislative framework on the basis abortion is lawful under the Constitution in a case where there is a real and substantial risk to the life of a woman, meaning that were a pregnant woman to possess a real and substantial risk to her life and treatment were withheld due to the ethical objection of a doctor (despite the risk), leading to her death, the medical practitioner would be liable for her death due to medical negligence as there is currently no compulsion on a hospital to provide staff who will provide this service that would render the situation where the potential test of a conscientious objection clause in the courts unlikely.
(1)Subject to subsection (2) of this section, no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection:
Provided that in any legal proceedings the burden of proof of conscientious objection shall rest on the person claiming to rely on it.
(2)Nothing in subsection (1) of this section shall affect any duty to participate in treatment which is necessary to save the life or to prevent grave permanent injury to the physical or mental health of a pregnant woman.
(3)In any proceedings before a court in Scotland, a statement on oath by any person to the effect that he has a conscientious objection to participating in any treatment authorised by this Act shall be sufficient evidence for the purpose of discharging the burden of proof imposed upon him by subsection (1) of this section.
5.―(1) No individual directly involved in the provision of medical treatment provided for in this Act shall be under a duty or be placed under a duty, whether by contract or otherwise, to participate in the provision of such medical treatment if he or she has an honestly held and reasonable objection to so doing―
(a) provided that his or her refusal to participate in the provision of such medical treatment does not cause an immediate risk to the life of the woman, and
(b) provided that, in the case of a medical practitioner who has an honestly held and reasonable objection to participation in the provision of any medical treatment provided for under this Act, such a medical practitioner shall―
(i) provide all relevant information to the woman about her right to such medical treatment,
(ii) where another medical practitioner is competent and readily available to participate in the provision of such medical treatment, refer or transfer the woman to the care of that other practitioner, or
(iii) participate in any medical treatment provided for in this Act where such medical treatment is immediately necessary to save the life of the woman and where no other competent medical practitioner is available to perform such medical treatment.
(c) Notwithstanding the provisions of this subsection, it shall be the duty of every health institution to ensure that the necessary number and category of personnel, both medical and non-medical, are made available and are not obstructed in the provision to a woman of such medical treatment as is provided for in this Act.
(2) No institution, organisation or third party shall refuse to provide medical treatment to a woman under the terms of this section.
Supplementary Provisions of the 1967 Act and the 2012 Bill
Sections 5 and 6 of the 1967 Act are technical provisions that state that any termination performed that do not fall within the criteria of Section 1 of the 1967 Act are deemed unlawful terminations according to the provisions set out in the Offences Against the Person Act 1861. Section 3 (1) of the 2012 Bill contains a similar provision and states that any termination that does not fill the clear criteria set out in the Bill is unlawful under the provisions of the Offences Against the Person Act 1861.
Section 3 (2) of the 2012 Bill has the effect of repealing section 6 of the Regulation of Information (Services Outside State for Termination of Pregnancies) Act 1995, which prohibits persons supplying information on abortion from having any “interest, direct or indirect” in any clinic offering abortion services outside the State. Given the differing abortion law in Britain, there is no equivalent in the British legislation.
Capacity to consent to treatment by a minor
Section 6 (3) of the Bill stipulates that provided a minor who satisfies the criteria set out in the Bill for undergoing a lawful termination, may receive this treatment without the validation of her parents or guardian.
The 1967 Act does not explicitly deal with minors and consent, however in Britain, 16 and 17 year olds can consent to medical treatment without it being overruled by their parents and minors under 16 can consent to treatment provided they have the intelligence to understand what they are doing. The medical law used to assess whether a person under 16 has the capacity to consent to treatment was set out by Lord Fraser and Lord Scarman in the House of Lords in the Gillick judgment, which indicated the circumstances under which a minor may undergo treatment.
The test of whether a minor can consent to medical treatment or not is often referred to as the test of “Gillick competency.” Lord Scarman stated;
“…it is not enough that she should understand the nature of the advice which is being given: she must also have a sufficient maturity to understand what is involved.” He stated further; “Parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision.”
The implication of this judgment is that where a minor has the capacity to consent, they may do so – a sensible enough approach to the area of consent to any medical treatment by a minor.
Abortion on demand? Certainly not.
All of that aside, it is unlikely it will even make it past the first Dáil vote and enter Committee Stage, let alone be passed in its entirety – given that that this is the Government is still awaiting feedback from the Expert Group on Abortion, combined with an unwillingness to legislate for X anyway, despite long-standing commitments to do so from Labour..
However, the Medical Treatment (Termination of Pregnancy in Case of Risk to Life of Pregnant Woman) Bill 2012 will clearly not allow for abortion in the range of circumstances as set out by the 1967 Abortion Act, and it is either foolish or wilfully misleading for the likes of Eilis O’Hanlon to try and say it will.
 Gillick v West Norfolk & Wisbech Area Health Authority  UKHL 7 (17 October 1985).