ABORTION IN IRISH LAW TIMELINE
1861: Abortion is made a criminal offence in Ireland
1983: Article 40.3.3 of the Constitution is amended to protect ‘the right to life of the unborn’
1992 (February): Justice Costello grants High Court injunction preventing a 14 year old, pregnant as a result of rape, from travelling to the UK for an abortion.
1992 (November): Two referendums pass, which amend Article 40.3.3 to protect the rights to travel and information.
1998: The Government establishes an Inter-departmental Working Group on Abortion.
1999(September): Green Paper on Abortion published, laying out options for reform.
2000(November): An All-Party Oireachtas Committee on abortion publishes its report and fails to reach consensus. A subcommittee then makes a recommendation.
2001(October): Plan for a referendum to allow abortion where women’s life is at risk from pregnancy, but not suicide.
2002(March): Voters reject the constitutional amendment by 50.42 per cent to 49.58.
2005 (August): Safe and Legal in Ireland Abortion Rights Campaign forms to demand legal abortion services in Ireland.
A CHRONOLOGY OF ABORTION LAW IN IRELAND
OFFENCES AGAINST THE PERSON ACT
Article 58
‘Every woman being with child, who with intent to procure her own miscarriage shall administer to herself any poison or other noxious thing…and whomsoever, with intent to procure the miscarriage ofany 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…with the like intent shall be guilty of a felon, and being convicted thereof shall be liable…to be kept in penal servitude for life.’
Article 59
‘Whomsoever shall unlawfully supply or procure any poison or other noxious thing…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 not be with child, shall be guilty of a misdemeanour, and being convicted thereof shall be liable to be kept in penal servitude for the term of three years.’
Article 40.3.3 of the Constitution was amended as follows
‘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.’
1986-1991 THE INFORMATION CASES
SPUC took a series of cases against the Dublin Well Woman Centre, Open Door Counselling and three Students’ Unions, to stop them providing women with Information on where and how to obtain an abortion. In 1988 the Supreme Court confirmed this decision. In 1991 the European Court of Justice ruled that, although abortion is a service under EC law, the students’ unions could be prohibited from distributing information on it, because they had no financial link with the clinics providing the service in England. The Irish Government then entered a Protocol to the Maastricht Treaty removing the issue from the Jurisdiction of EC law.
1992(Feb) THE X CASE
Costello J. granted an injunction in the High Court preventing a pregnant 14 year old rape victim from leaving Ireland to have an abortion in England. Amid public outcry, the Supreme Court overturned his decision two weeks later to allow her to go, ruling that
‘if it is established…that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible.’
Here, the Court held that there was a real and substantial risk of suicide if the pregnancy continued; thus the termination was permissible even in Ireland.
However, where no such risk existed, both information and possibly travel could be prevented in the interest of safeguarding the right to life of the ‘unborn’. The Government then entered a Declaration to the Protocol, saying that they would not use it to restrict travel orinformation.
1992(Oct) THE EUROPEAN COURT OF HUMAN RIGHTS
In an appeal taken by Open Door Counselling and the Dublin Well Woman Centre, the ECHR ruled that the Ban on abortion information was in breach of Article 10 of the European Convention on Human Rights, which guarantees freedom of expression. It was ‘overbroad and disproportionate’ since it prohibited them from providing information to everyone, including women who came under the X test. This decision was not followed by the Supreme Court in 1993, which upheld the injunctions despite a strong dissent by Denham J.
1992(Nov) THE TRAVEL AND INFORMATION REFERENDA
Two Referenda were passed, amending Article 40.3.3 to safeguard the rights to travel and to information. A third Referendum on abortion was defeated. It would have limited the effect of the X case, by restricting the test to cases where the risk to the pregnant woman’s life was due to an illness or disorder, and not to a risk of suicide.
Travel
‘Subsection 3 of this section (Article 40.3.3) shall not limit freedom to travel between the State and another state’
Information
‘Subsection 3 of this section shall not limit freedom to obtain or make available, in the State, subject to conditions as may be laid down by law, information relating to services lawfully available in another state.’
Abortion
‘It shall be unlawful to terminate the life of an unborn unless such termination is necessary to save the life, as distinct from the health, of the mother where there is an illness or disorder of the mother giving rise to a real and substantial risk to her life, not being a risk of self-destruction’
REGULATION OF INFORMATION ACT
Passed to lay down the conditions under which abortion Information can be provided. The Supreme Court ruled That it was constitutional, as it protected both the rights To life of the ‘unborn’ and of the ‘mother’ under Article 40.3.3. The Court held that unspecified rights of the ‘unborn’ could not be invoked to counter the clearly expressed will of the people in the 1992 Referenda. The Constitution Review Group issued their Report on The Constitution, recommending that legislation should be introduced to implement the X judgement, specifying under what conditions abortion could be carried out lawfully in Ireland. This recommendation was rejected by the anti-abortion campaign.
1997(March) THE STUDENTS’ UNIONS APPEAL
The Supreme Court lifted the injunctions against the Students’ unions. Two conflicting reasons were given for this decision: (a) Denham and Keane JJ. Said that the Supreme Court decision had been wrong, as it failed to Give adequate weight to the right to life of the ‘mother’; (b) Hamilton and Blaney JJ. said that the injunctions were originally valid, but due to the change in law in November 1992, and the subsequent Regulation of Information Act, they could no longer be upheld. The fifth judge, Barrington J. gave an ambiguous judgement, but also declared that the injunctions should be lifted. The anti-abortion campaign continued demanding a Referendum to outlaw direct abortion absolutely.
1997(Nov) THE C CASE
A 13 year old girl, pregnant as a result of rape, and in the care of the Eastern Health Board was the subject of proceedings in the District Court as she sought permission to leave the State for the purposes of availing of a lawful abortion in England. The original proceedings related not to the abortion itself but to her leaving the urisdiction while subject to a care order. That matter became more complex when her father, originally supportive of her decision, spoke in the media and came under the influence of extreme anti-abortion groups.
Ultimately the matter was settled in the High Court. Mr Justice Geoghegan ruled that as Miss ‘C’ was likely to take her own life if forced to continue with the pregnancy, she was entitled to an abortion in Ireland by virtue of the Supreme Court judgement in the 1992 X Case. Since an abortion in this case would not be unconstitutional within this State then she could leave the State in order to have it. The main legal significance of this judgement is that another person, the subject of a order, who may not be at risk of suicide, could be prevented from leaving the State to avail of an abortion and thus be forced to continue with an unwanted pregnancy.
The main political significance is that it demonstrated that the failure of successive governments to enact legislation, following the X case, had led to another similar harrowing court ordeal for a young victim of rape.
Opinion polls showed a high level of support for Miss ‘C’s right to make this choice for herself. More crucially it was now clear that if the government had succeeded in its 1992 attempt to limit the scope of the X case judgement so as to exclude the risk of suicide as a ground for abortion within the State, Miss ‘C’ would have been forced to continue this pregnancy.
ABORTION WORKING GROUP
The Government responded to the C case by Establishing an Inter-Departmental Working Group on Abortion supervised by a cabinet sub-committee. Submissions closed on March 28th and a Green Paper was promised for ‘late Summer 1998.’
1999 GREEN PAPER ON ABORTION
The Government’s Green Paper on Abortion was Published in September 1999. Seven possible options were outlined. These were:
- Absolute Constitutional Ban on Abortion.
Amendment of the Constitutional Provisions so as to restrict the application of the X Case.
- Retention of the Status quo.
Retention of the Status quo with Legislative Restatement of the Prohibition on Abortion.
- Legislation to regulate Abortion in circumstances defined in the X Case.
- Reversion to the pre-1983 position.
- Permitting Abortion on grounds beyond those specified in the X Case:
- Risk to Physical/Mental Health of Mother
- Abortion for Women Pregnant as a result of Rape or Incest
- Congenital Malformations
- Abortion for Economic or Social Reasons
- Abortion on Request
The All Party Oireachtas Committee on the Constitution then invited written submissions on the basis of the Green Paper, to be received by 30th November.
ALL PARTY OIREACHTAS COMMITTEE
Organisations and individuals were invited to address the Committee in May, June and July in a series of public oral hearings. Medical practitioners were heard first, followed by special interest groups and then faith groups. This process resulted in a thorough discussion of the complexities surrounding the abortion issue in Ireland. However the views of women who have direct experience of Irish Abortion were not heard.
2002 THE 2002 ABORTION REFERENDUM
The 25th Amendment to the Constitution was put to the Irish people in a referendum in an attempt to again exclude the risk of suicide as a ground for abortion ie. The X Case. The campaign around this referendum was dominated by a debate on the question of whether pregnant women or girls ever really became suicidal, or if so whether abortion could ever be a way of preventing suicide.
The referendum was defeated 50.42% to 49.58%.
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