After the Eighth

Mairead Enright discusses ‘moderate’ proposals for Abortion Law Reform.

It is often suggested that we should repeal the 8th Amendment, the Information Act, and the Protection of Life During Pregnancy Act, and not replace them. This is a misguided position. In principle, I agree that the law should treat abortion, as much as possible, like any other form of healthcare. In Canada, apparently lighter-touch regulation of abortion is possible for two reasons. First, in Morgentaler and other cases, the Canadian courts have recognised a constitutional right of access to abortion. There is no equivalent right in Irish law. Second, Canadian law recognises, to a far greater extent than Irish law, a right of bodily autonomy in respect of medical treatment, including obstetrics and maternity care.

By contrast, if we repeal the 8th without replacing it, we would leave an open goal for neglectful, domineering and outright dangerous forms of medical practice. Cases like those of Ms. Y, NP and Savita Halappanavar would be able to happen again, and when they did, there would be no obvious, secure legal recourse for women victims. Some legislation is inevitable and necessary, and indeed, repeal of the 8th provides an invaluable opportunity to write new law which could, at least, establish positive, enforceable rights of access to abortion care.

The refusal of ‘abortion on demand’ carries an undertone of soft misogyny; you deserve a legal, assisted abortion in your own country only if you show yourself to deserve our pity.

Of course, dominant framings of abortion law reform debates in Ireland do little to inspire feminist confidence. Most Irish liberal discussions of the topic focus on the grounds for access to abortion. Feminists insist on free, safe and legal abortion for pragmatic reasons. Restrictive abortion laws donot effectively protect foetal life. Women have abortions whatever the law says, sometimes at great personal risk. Feminists also, of course, insist on access to abortion on request for emancipatory reasons. Women’s equality requires that we have the means to direct our own lives, free from domination by others, and this entails control of our reproductive destinies. The current sticking point is so-called “abortion on demand” – safe abortion care, available for free, without having to prove grounds. “Abortion on demand” is the thing reforming TDs publicly refuse in order to demonstrate their common sense moderate credentials.

The Labour Party said in November that it would legislate for abortion on 5 grounds. Up to 12 weeks’ pregnancy, abortion would be available on grounds of “real and substantial risk to health”. After 12 weeks, it would be available on medically certified grounds of (i) more severe risk to health (ii) risk to life, including risk of suicide (iii) rape posing an attendant risk to physical or mental health and (iv) fatal foetal abnormality.

The Labour party’s proposals state that pregnancy, as a social role should be “voluntary and consensual”. But they would confine access to abortion to those who do not choose it; women who have been raped, and thus did not choose pregnancy in the first place and women who are presumed to want to continue their pregnancies, but cannot do so due to ill-health or the unbearable burden of carrying a doomed pregnancy to term. The implication is that women who choose abortion are unworthy of law’s protection. Although Labour’s accompanying proposal to decriminalise self-induced abortions is very welcome and symbolically important, it can also be read as an open admission that large numbers of women will be left to their own devices. Their behaviour is implicitly regulated by non-legal factors such as availability of healthcare information, geography, poverty, age, migration status, stigma and violence.

The refusal of “abortion on demand” may have become a totem of reasonableness and compromise, but it carries an undertone of soft misogyny; you deserve a legal, assisted abortion in your own country only if you show yourself to deserve our pity.

But if the rhetoric of “abortion on demand” is immovable for party political reasons, what other feminist critiques of “moderate” abortion law are available? We can suggest a pragmatic critique. As well as reflecting beliefs about women, Labour’s proposals reflect beliefs about law. Like all grounds-based abortion legislation, Labour’s proposals are rooted in two core beliefs about law and its capacities; (i) that law can effectively control women’s abortion decision-making, replacing disorder with ‘clarity’ and ‘certainty’ (ii) that by transferring this control to doctors, we can readily dissolve the worst of the risk and pain associated with tightly restricting access to abortion. Our willingness to take decision-making power over abortion away from women depends to a great extent on those beliefs.

If we repeal the 8th without replacing it, we would leave an open goal for neglectful, domineering and outright dangerous forms of medical practice.

A feminist focus on decision-making process and procedure inevitably exposes the cracks in restrictive abortion regimes. For example, Labour’s inclusion of “real and substantial risk to health” as the lowest entry point to abortion access speaks to a desire both to attend to women who are vulnerable and in pain, and to draw reassuring distinctions between serious and ordinary cases where women need abortions. But is an unworkably ambiguous test, which has generated recognised chilling effects around access to life-saving abortion in Ireland.

Equivalent objections can be made to the other grounds, which are similarly open-ended. Refusal to draft the grounds more specifically, or to suggest the interpretative principles which should direct how they are read, speaks either to ignorance of or squeamishness about the realities of typical abortion experiences.

A supporter might respond that, in drafting laws broadly, we are creating appropriate room for the exercise of medical discretion. But repeated examples from the 8th Amendment regime in areas from life-saving abortion to homebirth tell us that, in Ireland’s predominantly conservative medical culture, ambiguity in drafting leads inexorably to cautious interpretation, serious delay, distress, suffering, and arbitrary refusals of care.

Labour’s proposals say next to nothing about how medical decision-making would be regulated, resourced, or informed so as to eradicate established habits of reluctant or strategically conservative statutory interpretation. They do not even say very much about ensuring that doctors’ conscientious objection does not become a block on access to women’s healthcare, as it has done in other jurisdictions. Labour’s proposals rely on simple trust in the paternalism of the professions. There is a real and largely unexplored risk that, under such a law, women would not be able to access abortions except under the most extreme circumstances contemplated by these grounds, when they had already been brought to a high threshold of pain and suffering. Many women notionally entitled to use this law would likely be driven abroad, as usual, by uncertainty and delay.

It may be that, in time, Irish proposals for “moderate” abortion law reform will come accompanied by watertight plans for implementation. Until then, the important feminist question is not the more direct “Why don’t you support a woman’s right to choose?” but “Can you justify your belief in your law? Can you show us that your law can do better than women could themselves?”

Mairead Enright is a Lecturer in Law at Kent Law School and a founding member of Lawyers for Choice. She was one of 10 lawyers who advised Labour Women Commission on Repeal of the 8th Amendment. Draft abortion legislation from this group is available from the open-access journal feminists@law. She is writing in a personal capacity.