Abortion in the Republic of Ireland

Constitutional provisions

Article 40.3.3° of the Constitution of Ireland contains a protection of the right to life of the unborn, as well as protecting the right to travel and the right to obtain information about services legally available in other jurisdictions. The first paragraph was inserted in 1983 by the Eighth Amendment; the second and third paragraphs were inserted in 1992 by the Thirteenth Amendment and the Fourteenth Amendment respectively.

Article 40.3.3°

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

This subsection shall not limit freedom to travel between the State and another state.

This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.

Legislation

The law which currently governs abortion in Ireland is the Protection of Life During Pregnancy Act 2013. Sections 7 and 8 provide for legal termination of pregnancies in cases of a risk of loss of life from physical illness, whereas section 9 provides for legal termination of pregnancies in cases of a risk of loss of life from suicide. Sections 58 and 59 of the Offences Against the Person Act 1861 were repealed, and effectively superseded by the offence defined in section 22:

22. (1) It shall be an offence to intentionally destroy unborn human life.

(2) A person who is guilty of an offence under this section shall be liable on indictment to a fine or imprisonment for a term not exceeding 14 years, or both.

(3) A prosecution for an offence under this section may be brought only by or with the consent of the Director of Public Prosecutions.

The legislation was proposed by Minister for Health James Reilly on behalf of the Fine Gael–Labour Party government. It passed the Dáil by 127 votes to 31. Fine Gael, the Labour Party and Sinn Féin had a party whip in favour of the legislation, and among those who opposed it were Fine Gael TDs Lucinda Creighton, Terence Flanagan, Peter Mathews, Billy Timmins, and Brian Walsh, and Sinn Féin TD Peadar Tóibín. Brian Walsh and Peadar Tóibín later returned to the Fine Gael and Sinn Féin parliamentary parties respectively.

President Michael D. Higgins convened the Council of State to consider the constitutionality of the bill and a possible reference under Article 26 of the Constitution to the Supreme Court. The President decided against such a reference, and signed the legislation into law on 30 July 2013.

Background

Fears were expressed by politicians in 1929 of an increase in criminal abortions and infanticide following the passing of the Criminal Law Amendment Act which prohibited all appliances and substances for contraception; no exceptions whatsoever were made. Over 100 Irish women were dying annually from unsafe backstreet abortions in the 1930s.

The English case of R v. Bourne (1938), which allowed the distress of a pregnant girl as a defence in a prosecution against a doctor for the termination of a pregnancy, led to an increase in abortion in Britain, and thereafter, of Irish women travelling to obtain abortions. There were no prosecutions in Ireland for illegal abortions between 1938 and 1942 but as a result of travel restrictions imposed during the war years there were 25 cases prosecuted between 1942 and 1946. During the late 1930s and early 1940s, up to 400 terminations (both legal and illegal) were performed daily in England and Wales, and given the high emigration rates it is likely that there was widespread knowledge of the possibility of obtaining backstreet abortions in England by Irish people. The Bell Magazine in 1941 said that some young women from well off backgrounds were "hustled off, normally to London, Paris, Biarritz, comes back without the baby and nobody is any the wiser" After the war the level of prosecutions decreased though this only relates to abortions that went wrong or were found out. Those found guilty were dealt with severely by the courts, receiving long sentences of penal servitude with one chemist with an extensive abortion practice in Merrion Square, Dublin in 1944 receiving a 15-year sentence that was reduced to 7 on appeal. The Garda Commissioner's first annual report on crime published in 1947 made reference to the number of abortions that were performed illegally. In the 1950s novels, autobiographies and works of non fiction (including medical texts) that promoted or even described abortion were banned. There were extremely few prosecutions for performing illegal abortion between 1952 and 1963. but one of Ireland's best-known abortionists, Mamie Cadden, was sentenced to death by hanging in 1957 – this was later commuted to life imprisonment – when one of her patients died.

The Abortion Act 1967 in Great Britain made access to the treatment easier for Irish women and the instance of infanticide, which was prevalent, became to decline sharply. In 1974, Noël Browne became the first member of the Oireachtas to propose the provision of therapeutic abortion services during a contribution to a Seanad debate. In 1981, future President of Ireland, Mary McAleese, chaired a meeting at Liberty Hall that advocated a woman's right to choose. She later claimed that she misunderstood the nature of the meeting. McAleese had previously said that "I would see the failure to provide abortion as a human rights issue", but also that she did not feel "that the way to cope with it is through introducing abortion legislation" into Ireland. A number of controversies have arisen following deaths of pregnant women who were prevented from receiving medical care because of their pregnancy, such as Sheila Hodgers in 1983.

Old legislation

Under sections 58 and 59 of the Offences against the Person Act 1861, as amended by the Statute Law Revision Act 1892 and Statute Law Revision (No. 2) Act 1893, procuring a miscarriage was a criminal offence subject to penal servitude for life.

58. Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for life

59. Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanor, and being convicted thereof shall be liable to be kept in penal servitude.

These provisions enacted by the Parliament of the United Kingdom remained in force in Irish law until they were repealed by the Protection of Life During Pregnancy Act 2013.

Abortion Information

In the 1980s, the Society for the Protection of Unborn Children challenged distribution of information relating to abortion services in Britain under the provisions of Article 40.3.3°. In proceedings which they initiated, which were later converted into the name of the Attorney General, AG (SPUC) v Open Door Counselling Ltd. and Dublin Wellwoman Centre Ltd. (1988), the High Court granted an injunction restraining two counseling agencies from assisting women to travel abroad to obtain abortions or informing them of the methods of communications with such clinics. SPUC v Grogan and SPUC v Coogan targeted students' unions, seeking to prohibit them from distributing information on abortion available in the UK.

In response to the success of this litigation, and prompted by the controversy on the X Case, a referendum was held in November 1992 on the Fourteenth Amendment, which passed.

Information of the availability of abortion outside the jurisdiction is governed by the Regulation of Information (Services Outside the State For Termination of Pregnancies) Act, 1995. This was referred to the Supreme Court by President Mary Robinson and found to be constitutional.

Death of Sheila Hodgers

Sheila Hodgers was an Irish housewife from Dundalk, County Louth, who, in 1983, died of multiple cancers two days after giving birth to her third child (who immediately died at birth). It is alleged that she was denied treatments for her cancer while pregnant because the Catholic ethos of the hospital did not wish to harm the foetus.

X Case

In 1992, in Attorney General v. X (the X Case), the Attorney General sought an injunction to prevent a thirteen-year-old girl who had been the victim of rape from obtaining an abortion in England, which was granted in the High Court by Justice Declan Costello. On appeal to the Supreme Court, this decision was reversed, on the grounds that the girl was suicidal, and that therefore, it was permissible to intervene to save her life.

In November 1992, the Twelfth Amendment was proposed, which would have removed a risk of self-destruction as grounds for an abortion, but was defeated in a referendum. A similar proposal in the Twenty-fifth Amendment in 2002 was also defeated.

The Thirteenth Amendment was passed in November 1992 in response to the injunction sought by the Attorney General, ensuring that the protection of the unborn in the constitution could not be used to prohibit travel from the state to another state for an abortion.

C Case

In August 1997 a 13-year-old girl was raped, and became pregnant. She was suicidal due to the pregnancy, and went to the UK for an abortion. Since she was currently a ward of the state (Eastern Health Board), there was a court case about whether she could travel to the UK.

The woman at the centre of the case has occasionally spoken about her experiences, but not revealed her identity. She found the abortion traumatic, and didn't understand what was going on at the time. She didn't know that she would be getting an abortion, and thought that the hospital were going to deliver her baby.

All-party Oireachtas Committee on the Constitution

As part of constitutional review, in 1999 the Irish government produced a 179 page green paper summarising the then current Irish abortion law, and held an All-party Oireactas Committee on the Constitution. It held oral sibmissions in 2000, producing a Fifth Progress Report: Abortion in November 2000.

D v Ireland

In 2002, before the Twenty-fifth Amendment Referendum, a woman pregnant with a foetus with fatal foetal abnormalities travelled to the UK for a termination. Her letter in The Irish Times was credited with playing a part in the defeat of the Twenty-fifth Amendment referendum. She later took a case against Ireland in the European Court of Human Rights, D v Ireland, which was ruled inadmissible. The State argued that the Constitution of Ireland might allow termination in cases of fata foetal abnormalities. After the death of Savita Halappanavar, she gave up anonymity and spoke out.

Miss D

In May 2007 a 17-year-old girl, known only as "Miss D", who was pregnant with a foetus suffering from anencephaly (the absence of a major portion of the brain, skull, and scalp; blind, deaf, unconscious, and unable to feel pain, a disorder which is universally fatal), was prevented from travelling to Britain by the Health Service Executive. The High Court ruled on 9 May 2007 that she could not lawfully be prevented from travelling even though she was a ward of the state.

A, B and C v Ireland

In 2005, two Irish women and a Lithuanian woman who had previously travelled to England for abortion brought suit in the European Court of Human Rights asserting that restrictive and unclear Irish laws violate several provisions of the European Convention on Human Rights. The case, A, B and C v Ireland, was heard before the Grand Chamber of the Court on 9 December 2009 and was decided on 16 December 2010. In that case the Court ruled that the first two women's rights were not violated by being forced to travel because Irish law was "legitimately trying to protect public morals". ECHR also ruled that Irish law struck a fair balance between the women's rights to respect of their private lives and the rights of the unborn, although it found that Ireland had violated the Convention by failing to provide an accessible and effective procedure by which a woman can have established whether she qualifies for a legal abortion under current Irish law. The Court's decision is binding on Ireland and all of the member states of the Council of Europe.

A government-appointed Expert Group on Abortion released its findings on 13 November 2012, the day before news of the death of Savita Halappanavar broke, saying that Ireland was obliged to implement the court's decision and recommending legislative and statutory reform. This led to the enactment of the Protection of Life During Pregnancy Act the following year.

Savita Halappanavar

The death of Savita Halappanavar led to protests in 2012 calling for changes to Ireland's abortion laws and a highly public investigation by the Health Service Executive. After a miscarriage had been diagnosed, she was denied an abortion because the foetus's heart was still beating. The HSE enquiry found that her death was a result of inadequate assessment and monitoring and a failure to adhere to established clinical guidelines, and made several recommendations, including legislative & constitutional change.

Ms Y

In 2014, Ms Y, a young, suicidal woman was denied an abortion under the act. She went on hunger strike. The baby was eventually delivered by Caesarean section.

PP v. HSE

In December 2014, a woman who was declared brain dead was artificially kept alive against her family's wishes as the foetus she was carrying still had a heartbeat. She had been hospitalised initially, prior to a fall, for a cyst in her brain. In PP v. HSE, a three-judge panel of the High Court ruled on 26 December 2014, in a 29-page decision, that all life support should end. The court accepted the experts testimony that the foetus could not survive the extra two months required for a viable delivery. The legal and constitutional question, since the mother was already ruled clinically dead, was whether the foetus had any chance of being born alive. It was still unsettled as to how the Irish courts would rule in the future if a woman was brain dead and her foetus had a much better chance at being born alive, if it was much closer to the point of viability.

The Roman Catholic Archbishop of Dublin, Diarmuid Martin, had stated that he would not object, since the mother was clinically dead and the fetus had no chance for survival; the Church had questioned why Ireland had not come up with more specific guidelines, specifically for these types of situations where the woman is ruled brain dead and the fetus cannot survive. The Department of Health was to examine the ruling; both sides indicated they would accept the ruling and would not appeal to the Supreme Court, which had been on standby. Life support machines were disconnected on Friday, 26 December 2014.

Mellet v Ireland

Amanda Mellet become pregnant in 2011, however the foetus was suffering from Edwards syndrome, a fatal condition. She was unable to have an abortion in Ireland and had to travel to the UK. In 2016, she took a case to the United Nations Human Rights Committee who found that Ireland's abortion law violated the United Nations International Covenant on Civil and Political Rights and called for the law's reform. The Irish government paid her €30,000 in compensation. Termination for Medical Reasons is a support group for people and couples who are affected by this, and they lobby for terminations to be legal in Ireland in these cases.

Traveling for an abortion

Estimates as to the number of Irish women seeking abortions in Britain vary. Since the 1992 Thirteenth Amendment (Travel), it has been legal to travel outside Ireland to have an abortion.

In 1980 Marian Finucane won the Prix Italia for a documentary on abortion, she interviewed a woman who was about to have an abortion, had travelled with her to England, been with her in the hospital and talked to her afterwards. In 2001, an estimated 7,000 women travelled abroad to obtain an abortion. Statistics showed that 4,149 Irish women had abortions in Britain in 2011. In recent years, some Irish women have had abortions in the Netherlands

The issue of traveling to the UK for an abortion was relevant for many Irish abortion cases, such as the 1992 X Case, 1997 C Case and 2007 case of Miss D.

Abortion pills

Between 2010 and 2012, 1,642 women ordered abortion pills over the internet from Women on Web, and had an abortion at home, in Ireland. The pills are illegal in Ireland, and Customs occasionally seizes shipments.

Protection of Life During Pregnancy Act 2013

Every year, the government publishes how many pregnancies were terminated under the Protection of Life During Pregnancy Act 2013, which came into force on 1 January 2014

Public opinion

Several polls have been taken on the subject: