Through the Looking Glass of the 8th Amendment: A Historical Analysis of its Conception, Gestation and Birth
Ireland has a shameful history of
its treatment of women. From the Magdalene laundries, to Mother and Baby homes,
to the Tuam baby scandal and black markets for adopted babies, Ireland has done
its best to sweep the lingering dirt of its past under the rug. Somehow, this
image does not fit with the carefully curated picture of a modern, globalized
Ireland, which grins its teeth at international conglomerates and ushers them in
with arms wide open full of democratic values, rule of law, 12.5% corporation
tax, skilled English speaking and more importantly, WHITE WESTERN workers,
green fields, drinking culture and the all-important craic. Meanwhile, the last
skeleton in the closet of this previous era, the flesh long rotted, the eye
sockets gaping, - has begun to creak and shake off its old bones. It whispers
of a closely guarded Irish secret of a sacrifice that was once made by Ireland
– a sacrifice, some say, which was made of all its women for generations to
come. A deal which was struck that once an Irish woman became pregnant, she
would have to share her citizenship rights with the unborn inside of her. Her
right to full bodily autonomy lost in an impossible balancing act between
mother and foetus. A constitutionally
enshrined commitment that your wombs belong to us and therefore, you belong to
us. No longer silent, encased in its tomb, it has emerged zombie-like and
looming. And out of its mouth has poured the souls of all the women, past and
present, who have died on the pyre for Catholic Ireland’s “profound moral
values”. Values, which condemn abortion and proclaim to respect life but in
reality, only respect the life of the unborn, the lives of the faceless women
who are forced to travel for abortion or procure illegal abortions,
inconsequential. The Catholic doublethink. These women spilled out on to the
streets. Some say, they were yelling. Some say they were shrieking. Others said
they were hysterical. No, their ears were not conditioned to detect the clear sound
of anger but the tone of women’s
anger. No matter. All agreed upon what they were saying – no more.
There is something rotten in the
Republic of Ireland. The 8th Amendment, please take a bow.
The 8th Amendment was
inserted into the Irish Constitution in 1983, following the outcome of the majority
vote of Irish people in the referendum. The Amendment reads:
The states 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.
The Amendment equates the right
to life of the unborn embryo or foetus with the right to life of the pregnant
woman. It essentially completely outlawed and criminalized abortion in all
circumstances, although exceptions were later made to provide for abortion if
there was a ‘real and substantial’ risk to the right to life of the mother, be
it a risk to health or by threat of suicide.
On 25 May 2018, almost thirty
years since its enactment, the Irish people will again decide whether this
Amendment should live or die. However, in our haste and almost disbelief to get
to the voting polls and to have our say, we have forgotten how the 8th
Amendment came to pass. It has become so woven into the complex fabric of Irish
history that we no longer take a moment to really understand how the stars
seemed to align on that faithful day, that made 67% of the 53.3% of Irish
people who turned out to vote, believe that this amendment was vital, and most
importantly, necessary to constitutionally enshrine away from the meddlesome
hands of judicial interpretation. This paper aims to look again through the
looking glass of the 8th Amendment and its historical context, from
conception, to gestation, to live birth. It draws its title from C.S. Lewis, Alice in Wonderland Through the Looking
Glass[1],
in which Alice steps through a mirror into an imaginary world where everything looks
similar but somehow backward at the same time. She is tugged and pulled in
different directions by characters that demand her to do certain things and to
act a certain way.
Harari has said that historians
study the past not in order to repeat it but in order to be liberated from it.[2]
For this to happen, one must return to the past and understand it to see that
there is an alternative route. Hindsight, is, after all, a great thing if one can
learn from it. It is hoped that this paper, by stepping back in time and breathing
life into the history, characters, legislation, environment, events and stories
of Ireland in the run-up to the 8th Amendment, will show that it was
an orchestrated result of many influences since Independence. Namely, stemming
from the economic and capitalist pursuit of a patriarchal State which sought to
invisibilize and confine women within the home and a Catholic moral order which
sought to police women and their sexuality and punish those who transgressed it.
Each section commences with a quote from Silvia Federici, a Marxist-Feminist
historian, which will set the framework of how Irish women were coerced into an
economic and legal system of subjugation and oppression which extended even
into their private sexual and reproductive lives. Attention is paid throughout
to key legislation which impacted the status of women and State and Government
bodies which influenced how women were perceived.
In the beginning of the book,
Alice deals with her unruly kitten and “to punish it, she held it up to the
Looking-glass that it might see how sulky it was” and tells the kitten that “if
you’re not good directly…I’ll put you through into the Looking-glass House.” Although
we live in a very different time and country, we are not so far removed from the
almost fantastical world of our past. It is hoped that this paper will
emphasise the insidious religious and state powers that were at work in 1983 that
could very well still influence the outcome of the upcoming referendum. With
the referendum looming, any person who can cast a vote is Alice, holding the
women of Ireland by the scruff of her neck, threatening to send her back
through the looking glass to a world of subjugation, oppression and torment.
Phase 1: Enclose the Women
We can thus connect the banning of prostitution and the expulsion of women from the organized
workplace with the creation of the housewife and the reconstruction of the
family as the locus for the production of labor power.
Women became the commons defining women in terms of mothers, wives,
daughters, widows that hid their status as workers while giving men free access
to women’s bodies, their labor and bodies and labor of their children.
Silvia Federici,
Caliban and the Witches
As I have mentioned in the
introduction, each section draws its title and subsequent quotation from Silvia
Federici, who seeks to locate us within the economic and capitalist structure
which has confined women to work in the home, then undermined the nature of
this work whilst simultaneously placing high value on their reproductive
functioning. Marxist Feminist historians like Federici argue that when we view
women’s work in the home against the larger political backdrop, we begin to
understand how the capitalist system has exploited and invisiblized women’s
unpaid work to look after their ‘worker’ husbands and to produce children that
will eventually grow up to be workers themselves. Women’s unpaid labour and
reproductive functioning is therefore essential to the capitalist organisation
of labour. It underpins the very functioning of capitalism. This has led the
role of the housewife to be degenerated by the view that it does not contribute
to the economy – yet the hypocrisy of this, as we will see in the coming
sections, is exposed as her role in the home has been repeatedly
institutionalized by the State, in the Constitution and in legislation. A
deeply hierarchal and gendered structure of work is created with paid labour
outside of the home performed by men is deemed to be of a higher status than
the unpaid labour that is performed by women in the home. This raises the question if women’s role in
the home is of no value, why has Government sought to create an economic and
legal framework where a woman cannot escape it? This will be explored in the context of
Ireland since Independence in the coming paragraphs.
When Ireland gained Independence,
those who now ruled over a free Irish Republic set about trying to establish
Ireland’s political, economic and national identity. The 1922 Irish Free State
Constitution guaranteed equal rights and equal opportunities to all its
citizens. However, women began to see this promise of equality eroded by Eamonn
de Valera, a prominent leader of the struggle for Independence and then Prime
Minister of the Republic, who overhauled the initial Constitution to vote into
place the 1937 Constitution of Ireland. Political independence provided the
opportunity and the means to promote a comprehensive moral order based on
Catholic principles. During this period, Catholic social teachings, coupled
with economic austerity and traditional attitudes began to shape political
ideology and become enshrined into Irish law.[3]
Catholic principles idealized the nuclear God-fearing family as the crux of the
new State, which defined women solely in terms of her function as a wife and
mother. Divorce was also expressly forbidden under the Constitution. Inglis has
pointed out that “although women played a crucial role in the struggle for
independence, once this was gained, the new Free State began to pass
legislation that helped to confine women to the home.”[4]
O Tuama has commented that de Valera “attempted to unravel their contribution
to the revolution and indeed the centrality of women to the Celtic identity.”[5]
Beaumont has also commented that “(t)here is little doubt that much of the
legislation introduced during the early years of the Irish Free State reflected
the ‘Catholic’ nature of Irish society”[6]
– much of the legislation will be discussed in the coming sections.
Indeed, on Saint Patrick’s Day,
1943, de Valera spoke of the Ireland that he dreamed of which
“would be the
home of the people who ... satisfied with frugal comfort, devoted their leisure
to the things of the spirit. A land whose countryside would be bright with cosy
homesteads, whose fields and villages would be joyous with the sounds of
industry, with the romping of sturdy children, the contests of athletic youths
and the laughter of happy maidens.”[7]
De Valera’s priority was to
ensure a strong national Catholic identity of moral superiority that was
distinct from England and a strong capitalist economy that was struggling to
find its feet following independence and the threat of World War Two. De Valera
gave definitions to many things in the Irish Constitution, but the definition
that had the most damning effect on the progression of Irish society was his
re-classification of all women in terms of the role that they played in the
home, essentially removing women completely from participation in the public
sphere. Article 41.2 states:
The State
recognises that by her life within the home, woman gives to the State a support
without which the common good cannot be achieved.
The State
shall, therefore, endeavour to ensure that mothers shall not be obliged by
economic necessity to engage in labour to the neglect of their duties in the
home.[8]
By limiting women to the domestic
sphere, de Valera essentially reduced competition for employment in the
workforce, ensuring that men could earn their living. This was not the first of
measures designed by the Irish state to effectively push out women from the
organized workforce and to promote their role as a mother. Within five years of
the creation of the Irish Free State, Catholic social policy and nationalist
rhetoric had succeeded in reducing the female workforce and confining them in
the home to partake in ‘socially acceptable’ occupations such as home
assistance and agriculture. This is despite continued protests and lobbying by
women’s organisation, who contested the wording of several clauses in the de Valera’s
draft Constitution as well as the subsequent legislation which continued to
undermine women’s rights. In 1933 a Marriage Bar was introduced which prevented
female teachers from working after their marriage. This was then extended to
female civil servants in 1935. The 1936 Conditions of Employment Act gave the
Minister for Industry and Commerce the power to control and restrict the number
of women working in any given industry, in an attempt to further safeguard the
long-established right of the male citizen to paid work. Women’s freedom was
completely diminished and they were given one of two options; to fulfil their
‘natural’ role as a mother, or to join the religious orders. As Graham notes
“both nuns and married mothers were idealised in Ireland, which can be a complex
notion, considering the two ideals were at odds with one another.”[9]
By the Constitution and subsequent legislation, de Valera had successfully
managed to make Irish women the commons of Irish men, the sacrifice of a
capitalist system and the forced vessels to produce the future Irish generation
of workers. But legislation was not enough, social forces were much more effective
at enforcing this system of oppression.
Phase 2: Expel the Witches
“(T)his war was waged
primarily through the witch-hunt that literally demonized any form of birth
control and non-procreative sexuality
while charging women with sacrificing children to the devil.”
Silvia Federici,
Caliban and the Witches
With women being successfully
confined to the home, the next step was to ensure that they fulfilled their
function in producing the future generation of the Irish worker. Under the
Catholic social teachings, women were viewed as embodying the purity and
chastity of the Irish people and therefore, only sexual conduct for the purpose
of procreation was to be permitted. Under sections 58 and 59 of the Offences against the Person Act
1861, abortion was illegal. The Criminal Law Amendment Act of 1935
prohibited the importation, sale and distribution of contraceptives. Irish
families were large, fertility levels remained high until 1970s and Ireland was
considered an outlier in this respect as compared to their developed
counterparts.[10]
Of particular concern to the Catholic church and the Irish State was the issue
of unmarried mothers and illegitimate children who were seen to fly in the face
of the Catholic, moral, nuclear family that had been expressly enshrined in the
Irish Constitution. These ‘fallen women’ were considered a threat to society at
large and needed to be hidden away or removed entirely from the general
population. The State began to enact further legislation that penalized the
unmarried mother and her illegitimate child and tried to make it as difficult
for her to keep the child as possible. Through the Illegitimate Children
(Affiliation Orders) Act, 1930, the State attempted to shirk its
responsibilities for the care of the illegitimate child and place the burden on
the putative father. The State went even further in the Legitimacy Act 1931 which
stated that the child would become legitimate if the parents subsequently
married within 10 months of the child being born. This reflected the extreme
Catholic ethos of the time.
In the 1930s to the 1950s, we see
the opening of Mother and Baby Homes and Magdalene Asylums around the country,
which were religious run institutions with grants from the State that took in
unmarried mothers, allowed them to have their babies and then fostered or
adopted out these children to what they considered respectable families. Nuns
ran these institutions as they were deemed to be the perfect representation of
chastity and virtue. The wheels were in motion of a system where women policed
other women’s sexuality and punished them for their indiscretions. Women who
had ‘fallen’ the first time, were deemed to be able to be rehabilitated,
whereas women who had ‘fallen’ several times were often imprisoned in these
asylums for life and forced to work in horrendous conditions without
remuneration.
It is important to remember that
there was no legislation implemented to force unmarried women into these
institutions. Often it was the families or parish priests who delivered these
women to these institutions for violation of the moral Catholic order. In many
cases, the shame and stigma associated with being pregnant outside of wedlock
meant that these women voluntarily admitted themselves as they would have
nowhere else to go. The church was preoccupied with the visible manifestation
of “sin” in terms of the pregnancy, but there were no comparable repercussions
for the father, save for if he was brought to court and petitioned for child
support. Similarly, women who had fallen pregnant due to rape or incest had no
recourse and often had to suffer doubly from the injustice of the assault and
the further shame and stigma of the pregnancy. This is again reflected in the
passing of the 8th Amendment, which does not allow any exception for abortion for victims
of rape and incest. The children of unwed mothers were deemed to be products of
sin which was evidenced in the extremely high death rate of illegitimate children.
A mass grave was recently discovered in the grounds of the Tuam Mother and Baby
home, where the remains of 800 infants and children indicates the attitude
towards these children at the time.[11]
Indeed, my own mother was born in a Mother and Baby home after my grandmother
fell pregnant outside of wedlock. My grandmother was driven to the home by the
local parish priest. It was customary for the nuns to deny the woman any pain
relief medicine during labour and to ask if the pain of childbirth had been worth
their sexual misadventure. It is interesting to note that the preoccupation of
the Catholic church shifted from the issue of illegitimate children to the
protection of the unborn, regardless of its legitimate or illegitimate status
in the run up to the referendum on the 8th Amendment. This shift in
attitude is possibly because the Irish public did not have an appetite any
longer for the persecution of illegitimate children and so the war needed to be
waged on the common ‘evil’ of abortion of unborn children.
The Law Reform
Commission issued a report in 1982 whereby it recommended that the government
enact legislation which “should remove the concept of
illegitimacy from the law and equalise the rights of children born outside
marriage with those of children born within marriage.”[12] Much of the report
focusses on how to rebut claims of paternity, which reflected a mentality of
the men at the time that they needed to insulate themselves from false claims
of women trying to trap them. The Seanad, or Senate, debates at the time are
illuminating, with much debate focussing around the property rights of the
father and the possibility of a child born outside of wedlock laying claim to
inheritance. Indeed, as one senator mentioned “the abolition of the status of illegitimacy
would mean that every father of a child born outside marriage however
fleeting his relationship with the mother, or however little actual interest he
took in the child, would automatically have the same parental
rights over the child and the same succession rights to the child's estate as a
married parent has in relation to a child.”[13]
This “out of sight, out of mind”
mentality was again reproduced after the passing of the 8th Amendment, when a subsequent referendum was held to vote on
whether women would have the right to travel to seek abortions. This passed and
so the attitude of removing women who had “fallen” and force them to travel to
seek abortion healthcare again reinforces the shame and stigma of the woman’s
action and made it clear; you can do it, but
not in Ireland, we do not permit this kind of thing here.
Phase 3: Scaremonger
It appears in many ways that de
Valera’s dream of Ireland had materialized. However, de Valera would have never
expected the chilling effects that the subjugation of women would have on
familial and sexual relations. In Donal Connery’s book The Irish, he painted the following portrait of the Irish wife as:
“a kingsize
hot water bottle who also cooks his food and pays his bills and produces his
heirs. He takes what should be the happy, leisurely lovemaking of marriage like
a silent connubial supper of cold rice pudding. A rapid sex routine is effected
as if his wife is some stray creature with whom he is sinning and hopes he may
never see again. Though many Irish wives are preconditioned to such behaviour,
having seen its like in their own fathers and uncles, they resent it deeply.”[14]
Inglis has noted that “it is not
until the second half of the twentieth century that we begin to find traces of
a new discourse, a new way of reading, writing, representing, and understanding
sexuality that challenged existing Catholic discourse and conventions”[15]
with the resistance focusing around women and the “rejection of the modest,
chaste, virginal woman championed by the Catholic church and epitomized by the
image of the Virgin Mary.”[16]
The arrival of the television to
Ireland in the 1960s (and the relaxing of censorship rules) meant that
different and more liberal cultures were flooding into the homes of Irish
people and people had access to previously censored materials. Ireland was not immune
to the sexual revolution of the 1970s and attitudes slowly began to shift. The
Marriage Bar had been lifted upon Ireland’s accession into the European
Economic Community in 1973, mainly because the Irish government’s hand was
forced to drop its discrimination against Irish women for its own economic
incentive, meaning that more women were entering the workplace. The number of
married women in the labour force increased dramatically from 7.5 percent in
the early 1970s to 41 percent by 1996.[17]
CHERISH, an organisation set up
by unmarried mothers for unmarried mothers, was established in 1972 which
showed the changing attitudes of the Irish people to the plight of the
previously stigmatized unmarried mother. In 1973, the Social Welfare Act explicitly
recognized the unmarried mother as an acting citizen and committed to providing
her with benefits to support her child. Although contraceptives were still
banned, they were illegally imported from England and used in Ireland with members
of the Irish Women’s Liberation Movement publicly defying the law by bringing
contractive into the state on the train from Belfast. However, despite these
revolutions, the Irish people remained devoutly Catholic. In 1971 over 98 per
cent said they were religious and at the 1981 census, just 1 per cent reported
having no religion. Churchgoing remained high with over 90% of Catholics
attending mass at least once a week in 1974 with this figure dropping slightly
to 85% in 1990. The Church obstinately refused to change its stance on sex,
marriage and most importantly – women’s natural role as a mother.
Phase 4: Make Women’s Wombs State Property
“(F)rom now on their wombs become public territory, controlled by men
and the state, and procreation was directly placed at the service of capitalist
accumulation.”
Silvia Federici,
Caliban and the Witches
In 1967, the British Abortion Act
introduced legalized abortion under certain circumstances in United Kingdom (excluding
Northern Ireland). Irish women who could afford to do so began to take the
‘abortion trail’ and travel to Britain to procure abortions. Then in 1973, the
landmark case of McGee v Attorney General
and Revenue Commissioners[18]
reached the Supreme Court. Mrs McGee was a 27-year-old married woman of four
children. She had suffered from a stroke and temporary paralysis during one of
her pregnancies and was told by her doctor that her life would be at risk
should she become pregnant again. However, due to the contraception ban, Mrs
McGee shipment of spermicide jelly that she had ordered by post from the UK was
intercepted and seized by customs. Mrs McGee challenged this and the Supreme
Court ruled in her favour, acknowledging that she had a constitutional right to
marital privacy. Despite this ruling, the legislators were slow to enact it and
came under huge threat from the Catholic church who vehemently condemned the
use of contraceptives. It was 1979 before the Health (Family Planning) Act was
passed and this limited contraceptives to those who were requesting them for
‘bona fide’ family planning – basically restricting contraception to married
couples. Access was later extended to allow certain health and family planning
bodies to provide contraceptives to those over 18 years age in 1985 before these
restrictions were lifted completely in 1993, upon the outbreak of AIDS/HIV
epidemic.
McGee was simultaneously a win and a loss for liberals. Little did they know at the time that it would
be one step forward to the liberalization of contraceptives and the possibility
for women (albeit initially only married ones) to take back control of their
reproductive choices. However, the Supreme Court decision in McGee ignited fear in the hearts of the
Irish people. In the same year, the landmark case of Roe v Wade was decided in the US, in which the Supreme Court also
recognized that the right to abortion was a privacy right of women. The
precursor to this case, Griswold v
Connecticut[19],
was relied upon in the McGee case and
a fear began to brew of “the danger of a progressive judiciary”[20]one
that could potentially extend the McGee decision even further and introduce an
abortion regime into Ireland that was against the will of the people. This is
despite Justice Walsh specifically referring to abortion in his delivery of his
decision, stating that “any action on the part of either the husband and wife
or of the state to limit family sizes by endangering or destroying human life
must necessarily not only be an offence against the common good but also
against the guaranteed personal rights of the human life in question.” 10 years
later, when the 8th Amendment was voted in, it was clear that McGee had actually been one step forward
but 10 light years back in the progress of female reproductive rights.
The Pro-Life Amendment Campaign (PLAC), an umbrella group of 14 Catholic organisations, was founded in 1981 and began to mobilize. PLAC operated based on
scaremongering and ignited hysteria about the possibility that abortion could be introduced in Ireland. It is
worthy of note that abortion was still illegal at this time and contraceptives
were all but illegal except if you were married. The plan was hatched that what
Ireland needed was to insert a provision into the Irish Constitution away from
the meddling interpretations of a progressive judiciary or the whims and
fancies of transient governments. It may have been influential at the time that
Ireland was going through an economic recession and the population had fallen
for the first time since Independence. PLAC petitioned the government for a
commitment to hold a referendum and took advantage of political instability to secure
a promise. Eager to secure the Catholic vote, Charles Haughey, who had served
as Prime Minister and was contesting elections again, as well as Garret Fitzgerald, both committed to holding a referendum on the issue. The wording of the Amendment is
indicative of “the anxiety which changes in women's role and self-concept ha(d)
induced in Ireland. The assumption that the law needed to intervene in the
relationship between woman and foetus - to protect the so-called 'unborn child'
from its mother- is indicative of a deep distrust and fear of women.”[21]
The huge participation of women in the pro-life movement, then and now, is also
indicative of the divides that exist within feminism and the inability of women
to confront the “internalized sexism” that Bell Hooks speaks about in her book,
Feminism is for Everybody.[22]
She says that “(t)he anti-choice movement is fundamentally anti-feminist.”
Meaney also comments that the stronghold of patriarchy is to create divides
within women and “recruits women damaged by patriarchal ideology to the cause
of patriarchy itself and sets them campaigning and voting against their own
interests.”[23]
The internalized patriarchy of Irish women who had willingly and happily taken
up the role of the good Catholic mother could not bear facing an alternative to
her reality – that women could refuse motherhood and could prioritize her life
over her reproductive functioning. Abortion was so inflammatory because it “directly
challenged the notion that a woman's reason for existence was to bear children.
It called the nation's attention to the female body as no other issue could
have done. It was a direct challenge to the church.”[24]
There was strong opposition to
the Amendment also. Pro – choice campaigners, though limited in the support
they garnered, came to the forefront of Irish politics in the late 1970s and
early 1980s. Two pro – choice groups which were particularly successful were
the Dublin Well Woman Centre founded in 1978, and the Woman’s Right to Choose
group, established in 1980. The Attorney
General at the time, Peter Sutherland was particularly concerned about the
wording of the Amendment, calling it “ambiguous” and “unsatisfactory”, saying
that it will “lead inevitably to confusion and uncertainty, not merely amongst
the medical profession, to whom it has of course particular relevance, but also
amongst lawyers and more specifically the judges who will have to interpret it.”[25]
He suggested different wording which was rejected as not being pro-life enough.
It was almost as if Peter Sutherland had a magic ball and had foretold the
future, for each one of his concerns about the amendment has come true.
The insertion of the 8th
Amendment meant that a pregnant woman was never to be considered as a full and
equal citizen, but to have her rights subordinated to the unborn in her womb.
As Meaney has noted, it was a “compromise on any general or 'human'
constitutional rights which might give precedence to the woman's rights as an
individual over her function as a mother.”[26]
Phase 5 –Breaking
the Silence
The fears of Peter Sutherland and
other oppositional voices did indeed come true. The insertion of the amendment
opened an absolute Pandora’s box of issues for the electorate and most of all,
for pregnant women in Ireland. In matters concerning interpretations of the
Constitution, the Supreme Court has the final say. Rather than having the
intended effect that the pro-life supporters wanted, that is, to safely put the
abortion issue away from the hands of the judiciary, the ambiguous wording of
the Amendment landed it right on the judge’s table in 1992 in the form of the X case.[27]
The X case concerned a 14-year-old
girl, pregnant because of rape who was suicidal. She had been brought to
England with her parents to seek an abortion. The Attorney General, upon
hearing of her travel arrangements had sought an injunction to force her to
return to Ireland. The girl had returned to Ireland without obtaining the abortion
pending the judge’s decision. The judges ruled that there was a right to an
abortion in Ireland when there is a ‘real and substantial’ risk to the mother’s
life, either by a threat to her physical health or suicide. A series of follow-up referendums had to
clarify the position; a referendum on the right to travel, the right to
information and the suicidality grounds of the X case were all passed.
Despite the judges introducing exceptional
circumstances in which abortion can be permitted under the Amendment, it took
the legislature 20 years to transcribe this into law, in the Protection of Life
During Pregnancy Act 2013.[28]
This came about because of pressure on the government following the European
Court of Human Rights (ECHR) decision in A,
B and C v Ireland[29]
in which women took their cases to the court arguing that the lack of abortion
care in Ireland violated their human rights, explicitly their rights not to be
subjected to ‘cruel and degrading treatment’ by having to travel to England to
procure abortions. The ECHR was put in a sticky situation as they could not be
seen as overriding the Constitution of one of their member states, which was an
expression of the will of the Irish people or, as they said reflected the
“profound moral values concerning the nature of life which were reflected in
the stance of the majority of the Irish people against abortion during the 1983
referendum.”[30]
They skirted around the issue, opting to give Ireland a wide ‘margin of
appreciation’ in terms of their abortion regime which they considered to be a
divisive issue in the country and a reflection of the “profound moral values”
of the country. However, they agreed that Ms C’s right to legal certainty had
been violated since there was no clear legislation which espoused the
circumstances under which a woman could apply to be considered for an abortion.
The 2013 Act was a strict rereading of
the X case, which included in section
22 a prison sentence of up to 14 years for any woman who was found guilty of
procuring an illegal abortion.
The pro-choice movement seemed to
remain silent, or relatively silent until the tragic death of an Indian
dentist, Savita Halappanavar, in an Irish hospital in 2012. Savita had been
admitted upon complications during her pregnancy but, despite asking for an
abortion that could have possibly saved her life, she had died from a septic
miscarriage. The attending nurse during the inquest to her death had told the
panel that she had told Savita that this was a “Catholic country” when her
pleas for an abortion fell on deaf ears. It emerged during the inquest that
doctors had delayed performing an abortion since a foetal heartbeat had still
been beating.[31] Doctors
reported that the legal lacuna of the 8th Amendment meant that they
were not allowed to operate unless there was a ‘real and substantial’ risk to
the woman’s life or if the heartbeat had stopped. People were outraged by her
death. It is considered a galvanizing moment in the growing support of the
pro-choice movement.
Meanwhile, details of the Ms Y case[32]
emerged of a pregnant asylum seeker who alleged that she was pregnant due to
rape had requested that she have an abortion. She was suicidal and had gone on
hunger strike. Despite her arguably fulfilling the requirements for an abortion
under the 8th Amendment, an application was made to the High Court
which permitted her to be force fed until the baby could be delivered by caesarean
section. Similarly, in another horrific case called the Ms P case, an application was heard by the High Court whether a
woman who had been pronounced brain dead but who was 5 weeks’ pregnant could be
kept alive as a cadaveric incubator so that the child may be born alive. This
was against her family’s wishes. The court eventually ruled that the pregnancy
was not yet far enough developed to warrant incubation but did not rule out the
possibility of doing so in a case where the pregnancy is of later viability.
This reflects the obligation of the State to step in and “protect the life of
the unborn” even if it means adopting perverse methods of doing so.
In a case that shocked Irish
society as heralding from the era of the Magdalene laundry incarceration, an
Irish teenager was incarcerated in a mental institution when she requested an
abortion under suicidal grounds.[33]
It is important to note that
these are the public cases, but there are many more that go unheard in the
private sphere. It is estimated that 12 women leave Ireland’s shores daily to
procure abortions abroad, with many more taking abortifacient drugs that they
order online.
Ireland was facing mounting
pressure from international bodies that were condemning Ireland’s restrictive
abortion regime. In 2013, the United Nations Human Rights Committee found against
Ireland in its treatment of Ms Amanda Mellett who had been forced to travel to
England when she was denied an abortion in Ireland upon a fatal foetal
diagnosis.[34] She
was from low socio-economic circumstances and had incurred significant financial
and emotional costs. Ireland was mandated to pay her compensation as well as
reporting to the body in 6 months’ time of the measures that they were taking
to ensure that the same circumstance would not arise again. As the government
was coming under increased pressure from the Irish people it committed to
holding a Citizen’s Assembly, a committee of 99 randomly selected citizens chaired
by Supreme Court judge, Justice Laffoy charged with the task of investigating
the 8th Amendment and making non-binding legal recommendations to Government.
The Committee heard expert evidence and testimonials from a range of health,
legal and human rights professionals. A strong majority voted in favour of
liberalizing Ireland’s abortion laws. Their findings were then reviewed by a
government committee, which recommended a referendum to repeal the 8th Amendment
and allow the government to legislate for abortion. The current draft legislation
proposes that abortion will be permitted on request by a woman up until 12
weeks’ gestation and under specific health grounds beyond that.[35]
Phase 6 – Dream or Reality?
It seems since the enactment of the Amendment, that Ireland
has been living in a nightmare of its own making. Senator Mary Robinson summed
it up well during the Oireachtas debates in 1983 on the 8th Amendment
when she said:
“This is a terrible indictment of
us. We have every reason to be ashamed of the way in which we have not
addressed ourselves to the real problems. Not only have we not been concerned
at all about the degree of suffering, disadvantage, guilt, helplessness and
discrimination against women which are reflected in all of this but we have not
looked or even wanted to look at the reasons why this may be so.”[36]
Ireland finally appears to have
taken its head out of the sand and begun to face the suffering, shame and
stigma that the 8th Amendment has inflicted on Irish women and to at
least acknowledge if not begin to understand the complex web of reasons why a
woman may seek an abortion.
In the final chapter of the Through the Looking Glass, Alice checkmates
the Red King in a game of chess, finally returning her to her own world. She wakes
up and wonders aloud if her dreams were her own or those of the Red King. It is
hoped that on voting day, that the people of Ireland will checkmate the
sleeping King of patriarchy, so that we may enter a new reality where our
bodies, our decisions and our destinies are finally ours to control.
[1]Carroll,
Lewis, Hugh Haughton, and Lewis Carroll. Alice's Adventures in Wonderland ; And, Through the Looking-Glass and What Alice Found There. New York:
Penguin Classics, 2009.
[2] Harari,
Y. N. (2016). Homo Deus: A brief history of tomorrow. Random House,
p. 68.
[3] Beaumont,
Caitriona. "Women, citizenship and Catholicism in the Irish free state,
1922-1948." Women's History Review 6.4 (1997): 563-585.
[4]Inglis,
Tom, Origins and legacies of Irish prudery: Sexuality and social control in
modern Ireland, Irish American Cultural Institute, 2005, available at http://irserver.ucd.ie/bitstream/handle/10197/5112/Origins%20of%20Irish%20Prudery%20(2).pdf?sequence=4/ijls.ie/wp-content/uploads/2013/07/IJLS_Vol_2_Issue_2_Article_3_OTuama.pdf
last accessed 29 April 2018.
[5]Ó
Tuama, S., ‘Revisiting the Irish Constitution and De Valera’s Grand Vision’
Irish Journal of Legal Studies, 2 (2) 54-87, 2011.
[6] Beaumont,
Caitriona. "Women, citizenship and Catholicism in the Irish free state,
1922-1948." Women's History Review 6.4 (1997): 563-585.
[7]De
Valera, E. On Language and the Irish Nation, speech on Raidió Éireann, 17 May
1943, available at http://spinnet.humanities.uva.nl/images/2014-04/devalera1943.pdf
last accessed 29 April 2018.
[8]The
Irish Constitution, available at https://www.constituteproject.org/constitution/Ireland_2012.pdf
last accessed 19 April 2018.
[9]Graham,
Ann-Marie. Unmarried mothers: the legislative context in Ireland, 1921. Diss.
National University of Ireland Maynooth, 2012.
[10] Lunn,
Pete, and Tony Fahey. Households and family structures in Ireland: A
detailed statistical analysis of census 2006. Economic and Social Research
Institute and the Family Support Agency, 2011.
[11]O’
Dowd, Niamh, Tuam Babies: “It would be... kinder to strangle these children at
birth” said doctor, Irish Central, August 2017, available at https://www.irishcentral.com/news/tuam-babies-it-would-be-kinder-to-strangle-these-illegitimate-children-at-birth
last accessed 29 April 2018.
[12]The
Law Reform Commission, Report on Illegitimacy Ireland (LRC 4 – 1982) available
at http://www.lawreform.ie/_fileupload/Reports/rIllegitimacy.htm
last accessed 20 May 2018.
[13]Seanad
Eireann Debate, Wednesday 23 May 1984 available at http://oireachtasdebates.oireachtas.ie/debates%20authoring/DebatesWebPack.nsf/takes/seanad1984052300009
last accessed 20 May 2018.
[14]O
Connery, Donal, The Irish, Simon and Schuster, 1970.
[15] See footnote
no. 2.
[16]Ibid.
[17]O'Connor,
Pat. Emerging voices: Women in contemporary Irish society.
Institute of Public Administration, 1998.
[18]
[19]381
U.S. 479 (1965)
[20]Linnehan,
Hugh, Podcast How the 8th Was Born, The Irish Times, 2018 available
at https://soundcloud.com/irishtimes-politics/how-the-8th-was-born
last accessed 29 April 2018.
[21]Meaney,
Geraldine, Sex and Nation Women in Irish Culture and Politics, Attic Press, 1991,
available at http://researchrepository.ucd.ie/bitstream/handle/10197/5535/MeaneySeXandNationPamphlet.pdf?sequence=1
last accessed 29 April 2018.
[22] Hooks, Bell, 1952-. Feminism
Is for Everybody : Passionate Politics. Cambridge, MA :South End
Press, 2000.
[23] See
footnote 21.
[24] Ibid.
[25]The Irish
Times, Peter Sutherland’s 1983 advice on the Eighth Amendment, 13 January 2018,
available at
https://www.irishtimes.com/news/social-affairs/peter-sutherland-s-1983-advice-on-the-eighth-amendment-1.3353263 last accessed 29 April 2018.
[26] See
footnote No. 20.
[27] Attorney
General v X [1992] IESC 1, [1992] 1 IR 1
[28]
Protection of Life During Pregnancy Act 2013, 35/2013, Irish Statute Book,
available at http://www.irishstatutebook.ie/eli/2013/act/35/enacted/en/pdf last
accessed 29 April 2018.
[29] European
Court of Human Rights, (Application no. 25579/05), available at https://www.dfa.ie/media/dfa/alldfawebsitemedia/ourrolesandpolicies/internationallaw/echr-a-b-and-c-vs-ireland-2010.pdf last
accessed 29 April 2018.
[30]Ibid, p.
62.
[31] Health
Service Executive, Investigation of Incident 50278 from time of patient’s self
referral to hospital on the 21st of October 2012 to the patient’s death on the
28th of October, 2012, June 2013, available at http://cdn.thejournal.ie/media/2013/06/savita-halappanavar-hse-report.pdf last
accessed 29 April 2018.
[32] Amnesty
International, Ms Y Case: Denied a Lawful Abortion in Ireland, 21 March 2016,
available at https://www.amnesty.ie/ms-ys-case/ last
accessed 29 April 2018.
[33]Holland, Kity, Girl sectioned after psychiatrist ruled out
abortion, The Irish Times, 12 July 2017, available at https://www.irishtimes.com/news/social-affairs/girl-sectioned-after-psychiatrist-ruled-out-abortion-1.3116111 last
accessed 29 April 2018.
[34] Enright,
Mairead, Amanda Jane Mellet V. Ireland
– The Key Points, Human Rights in Ireland, 9 June 2016 available at
http://humanrights.ie/uncategorized/amanda-jane-mellet-v-ireland-the-key-points/ last
accessed 29 April 2018.
[35] Bardon,
Sarah, Government Sets out 21 Clauses to regulate Abortion, The Irish Times, 9
March 2018, available at https://www.irishtimes.com/news/social-affairs/government-sets-out-21-clauses-to-regulate-abortion-1.3420425 last
accessed 29 April 2018.
[36]Robinson,
Mary, Oireachtas Debates, available at http://oireachtasdebates.oireachtas.ie/debates%20authoring/DebatesWebPack.nsf/takes/seanad1983050400007#N11 last
accessed 29 April 2018.
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