Abortion in Ireland is currently illegal but is in the process of reform after a referendum was passed replacing a provision in the Constitution of Ireland, which gave equal value to the life of the unborn foetus to that of its mother, with one permitting the Oireachtas (parliament) to legislate for the termination of pregnancies. The amendment will not take effect until signed into law by the President of Ireland, and abortion will continue to be governed by the Protection of Life During Pregnancy Act 2013 until that Act is repealed by the Oireachtas.
Article 40.3.3º of the Constitution (inserted by the Eighth Amendment) asserts the right to life of the unborn foetus. The Protection of Life During Pregnancy Act 2013 declares destruction of a human foetus to be a criminal offence. Abortion is permitted under the Act only where there is real and substantial risk of loss of the woman's life, including from a risk of suicide, that can only be averted by carrying out an abortion. The Constitution also protects the right to travel to obtain an abortion outside the state and to receive information about services outside the state. The information available is regulated by legislation.
Abortion had been prohibited in Ireland by the Offences against the Person Act 1861. The Eighth Amendment was added to the Constitution by referendum in 1983 after concerns that laws prohibiting abortion could be found to be unconstitutional based on a right to privacy. In 1992, the Supreme Court held in the X Case that a thirteen-year-old girl who had become pregnant as a result of rape could be permitted to obtain an abortion in the state because there was a risk to her life from suicide. There were unsuccessful referendums in 1992 and in 2002 that aimed to further amend the Constitution so as to preclude this part of the decision in future cases.
Irish abortion law received worldwide attention on the death of Savita Halappanavar in 2012, who had been denied an abortion while suffering a septic miscarriage, contrary to the law of the time which permitted abortion in cases where the Mothers health was at risk. This increased calls to repeal the Eighth Amendment. The constitutional and legislative provisions were discussed at a Citizens' Assembly in 2016-17, and at an Oireachtas committee in 2017, both of which recommended substantial reform, which lead to the referendum passed on 25 May 2018.
Video Abortion in the Republic of Ireland
Current law
Constitutional provisions
Article 40.3.3º 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 (following the X Case) by the Thirteenth Amendment and the Fourteenth Amendment respectively.
On 25 May 2018, the people of Ireland approved the Thirty-sixth Amendment of the Constitution Bill 2018 to remove the text of Article 40.3.3º and replace it with text allowing for legislation on the termination of pregnancy. The referendum passed with 66.40% of the votes.
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:
Information on the availability of abortion outside Ireland 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.
Maps Abortion in the Republic of Ireland
Irish abortions
Legal abortions in Ireland
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:
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.
Travelling for an abortion
Estimates as to the number of Irish women seeking abortions in Britain vary. Since the passage of the Thirteenth Amendment (Travel) in 1992, the right to travel for an abortion has had constitutional protection. In 2016, 3,265 Irish women were recorded as having had abortions in Great Britain. In some cases, women travelling do so with the assistance of the Abortion Support Network
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. A study was carried out and had shown that in 2014 a total of 5,521 women gave Irish addresses to English and Welsh clinics that provided abortion services. In recent years, some Irish women have had abortions in the Netherlands.
The issue of travelling to the UK for an abortion was relevant for many Irish abortion cases, such as the X Case in 1992, C Case in 1997 and the case of Miss D in 2007, as well as in the cases of fatal foetal abnormalities. In response to the UNHRC decision in Mellet v Ireland (2016), the government gave Amanda Mellet EUR30,000 compensation, partially for being forced to travel.
History of abortion in Ireland
Offences against the Person Act 1861
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.
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.
Early twentieth century
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 abortion providers, 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. Sheila Hodgers was a woman 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.
The Eighth Amendment
The Pro-Life Amendment Campaign was founded in 1981 campaign against a judicial ruling in Ireland that would allow abortion. Prior to the 1981 general election, PLAC lobbied the major Irish political parties - Fianna Fáil, Fine Gael and the Labour Party - to urge the introduction of a Bill to allow the amendment to the constitution to prevent the Supreme Court interpreting the constitution as giving a right to abortion. The leaders of the three parties - respectively Charles Haughey, Garret FitzGerald and Frank Cluskey - agreed although there was little consultation with any of their parties' ordinary members. All three parties were in government over the following eighteen months but it was only in late 1982, just before the collapse of a Fianna Fáil minority government, that a proposed wording for the amendment was proposed. After the election, on the advice of Attorney General Peter Sutherland, the new government of Fine Gael and Labour proposed an alternative wording but there was not a majority in the Dáil for it, and the wording proposed by Fianna Fáil was accepted. This inserted the following subsection into the Constitution:
The Eighth Amendment of the Constitution of Ireland was put to a referendum on 7 September 1983 and was approved with 66.9% of the vote.
Protests have been taking place in Ireland to remove the eight amendment. The March for Choice, now in its sixth year, is the first major rally since the Government set an indicative timescale of early summer 2018 for a referendum on the section of the state's constitution that ensures tight legal restrictions on terminations.
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 40.3.3º. 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. The Fourteenth Amendment specified that the prohibition of abortion would not limit the right to distribute information about abortion services in foreign countries.
X Case and 1992 referendums
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 of the Constitution Bill was proposed, which would have removed a risk of self-destruction as grounds for an abortion, but was defeated in a referendum.
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 the High Court ruled in the C Case that the Eastern Health Board she could arrange for her to travel to Britain for an abortion against the wishes of her parents.
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.
2002 referendum
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 submissions in 2000, producing a Fifth Progress Report: Abortion in November 2000. Following this, a referendum was held on the Twenty-fifth Amendment to the Constitution Bill, which would have introduced legislation into the constitution to permit abortion in cases of a threat to the life of a woman, but not in cases where there was a risk of suicide. This proposal was narrowly defeated (50.4% - 49.6%).
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. This pertained to the case of the woman who identified as C. Since she did not receive accurate information about the risks of pregnancy associated with her prognosis, she believed that she did not qualify for legal abortion in Ireland and was forced to travel to England for the procedure. In this case, the court relied on doctrine that would deny the direct challenge to Ireland's criminal law and this led to the reasoning that abortion is a moral issue. With the complex, lengthy and sensitive debate surrounding the issue, the Court made its ruling that state authorities were better suited than an international judge to balance the competing views and rights in abortion regulation. 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.
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. She developed sepsis and died. 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.
Protection of Life During Pregnancy Act 2013
The current law governing abortion 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 were both returned to the party whip within the same Dáil term.
Prior to this law, there was no standard to what conditions and situations would be considered to qualify for legal abortion in Ireland. This bill included a provision that allows abortion only if there is a real and substantial risk to life, specifically pertaining to the life and health of the mother. Within this provision, the women seeking to qualify for legal abortion must be examined by an obstetrician and a relevant specialist to decide if she does qualify. In a case of a mother feeling suicidal or threatening to commit suicide, she must be examined by three specialists and the agreement of their decision must be required for her to obtain a legal abortion. If certification for a legal abortion is refused, a woman may appeal the decision and have her situation and conditions reviewed again.
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.
In 2014, Ms Y, a young, suicidal refugee woman was denied an abortion under the act. She went on hunger strike. The baby was eventually delivered by Caesarean section.
Repeal of the Eighth Amendment
On 25 May 2018, the Irish people voted by 66.4% to 33.6% in a referendum to repeal the Eighth Amendment. They approved the Thirty-sixth Amendment of the Constitution Bill 2018 to delete the current provisions of Article 40.3.3º and replace it with the following:
The government also outlined policies which would govern legislation to replace the Protection of Life During Pregnancy Act 2013.
A Citizens' Assembly had been established by the government in 2016 to consider a number of issues. After five meetings on the Eighth Amendment, it voted to amend the constitution to allow the Oireachtas to legislate for abortion. It also voted on the provisions it would support in this legislation. The Report of the Assembly was sent to the Joint Oireachtas Committee on the Eighth Amendment of the Constitution. The Committee delivered its report in December 2017, and the report was debated in both Houses of the Oireachtas in January 2018.
39 of the 40 constituencies voted in favour of repealing the Eight Amendment. The national result was:
Minister for Health Simon Harris has said that legislation will be introduced in the Dáil before the summer recess, to be signed into law by the president in the autumn.
Cases of fatal foetal abnormality
In 2002, 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 fatal foetal abnormalities. After the death of Savita Halappanavar, she gave up anonymity and spoke out.
In May 2007 a 17-year-old girl, known 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.
Amanda Mellet became 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, and in Mellet v Ireland it 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 EUR30,000 in compensation.
In a case in 2010, the government of Ireland denied Siobhán Whelan an abortion despite being diagnosed with fatal foetal syndrome and was forced to travel from Ireland to the UK to terminate her pregnancy. In June 2017, the United Nations Human Rights Committee ruled that Ireland's abortion law violated Whelan's human rights along with the International Covenant on Civil and Political Rights, subjecting Whelan to a cruel, inhumane and degrading treatment, and called for legalisation of and access to safe abortions. The ruling was praised by the Center for Reproductive Rights.
Referendums
- Note
Public opinion
Several polls have been taken on the subject:
- A 1997 Irish Times/MRBI poll found that 18% believed that abortion should never be permitted, 77% believed that it should be allowed in certain circumstances (this was broken down into: 35% that one should be allowed in the event that the woman's life is threatened; 14% if her health is at risk; 28% that "an abortion should be provided to those who need it") and 5% were undecided.
- A September 2004 Royal College of Surgeons survey for the Crisis Pregnancy Agency found that, in the under-45 age groups, 51% supported abortion on-demand, with 39% favouring the right to abortion in limited circumstances. Only 8% felt that abortion should not be permitted in any circumstances.
- A September 2005 Irish Examiner/Lansdowne poll found that 36% believe abortion should be legalised while 47% do not.
- A June 2007 TNS/MRBI poll found that 43% supported legal abortion if a woman believed it was in her best interest while 51% remained opposed. 82% favoured legalisation for cases when the woman's life is in danger, 75% when the foetus cannot survive outside the womb, and 73% when the pregnancy has resulted from sexual abuse.
- A January 2010 Irish Examiner/Red C online poll found that 60% of 18- to 35-year olds believe abortion should be legalised, and that 10% of this age group had been in a relationship where an abortion took place. The same survey also showed that 75% of women believed the morning-after pill should be an over-the-counter (OTC) drug, as opposed to a prescription drug.
- A September 2012 Sunday Times/Behaviour and Attitudes poll of 923 people showed that 80% of voters would support a change to the law to allow abortion where the life of the woman was at risk, with 16% opposed and 4% undecided.
- A November 2012 Sunday Business Post/Red C poll of 1,003 adults showed that 85% of voters would like the government to "Legislate for the X case, which means allowing abortion where the mother's life is threatened, including by suicide", with 10% opposed and 5% undecided. The same poll also found that 82% of voters supported "A constitutional amendment to extend the right to abortion to all cases where the health of the mother is seriously threatened and also in cases of rape", and 36% of voters supported "A constitutional amendment to allow for legal abortion in any case where a woman requests it". In addition, 63% of voters also supported "A constitutional amendment to limit the X case, by excluding a threat of suicide as a grounds for abortion, but still allowing abortion, where the mother's life is threatened outside of suicide".
- A January 2013 Paddy Power/Red C poll of 1,002 adults found that 29% of voters believed that there should be a constitutional amendment to allow abortion "in any case where the woman requests it". 35% supported legislating for the X case allowing for abortions where the life of the mother is at risk, including from suicide. 26% supported legislating for the X case but excluding suicide and 8% believed no legislation at all was necessary.
- A January 2013 Sunday Times/Behaviour and Attitudes poll of 916 voters found that 87% would support legislation to provide abortion where the woman's life was in danger for reasons other than threat of suicide, 80% would support legislation to provide abortion where there was a foetal abnormality meaning the baby could not survive outside of the womb, 74% would support legislation to provide abortion where the pregnancy was a result of rape, and 59% would support legislation to provide abortion where the woman displayed suicidal feelings. Overall, 92% supported allowing abortion in one of these four circumstances, while 51% supported allowing abortion in all four circumstances.
- A February 2013 Irish Times/Ipsos MRBI poll of 1,000 voters in face-to-face interviews in all constituencies found that 84% felt that abortion should be allowed when the woman's life is at risk, 79% felt that abortion should be allowed whenever the foetus cannot survive outside the womb, 78% felt that abortion should be allowed in cases of rape or incest, 71% felt that abortion should be allowed where the woman is suicidal as a result of the pregnancy (the X case result), 70% felt that abortion should be allowed when the woman's health is at risk, and 37% felt that abortion should be provided when a woman deems it to be in her best interest.
- A June 2013 Irish Times/Ipsos MRBI poll of 1,000 voters in face-to-face interviews in all constituencies found that 75% were in favour of the government's proposed legislation (the Protection of Life during Pregnancy Bill 2013), with 14% opposed and 11% choosing "Don't know". Furthermore, 89% felt that abortion should be allowed when the woman's life is at risk, 83% felt that abortion should be allowed whenever the foetus cannot survive outside the womb, 81% felt that abortion should be allowed in cases of rape or abuse, 78% felt that abortion should be allowed when the woman's health is at risk, 52% felt that abortion should be allowed where the woman is suicidal as a result of the pregnancy, and 39% felt that abortion should be provided when a woman deems it to be in her best interest.
- A September 2014 Sunday Independent/Millward Brown poll found that 56% of voters were in favour of holding a referendum to repeal the Eighth Amendment to the Constitution, with 19% against and 25% undecided. In addition, 60% of voters were in favour of allowing abortion where there is a threat of the woman's suicide, 69% when the pregnancy arose as the result of rape, 72% when there is a risk to the woman's life (other than suicide) and 68% where there is a threat to the woman's long-term health. When it comes to allowing abortion "for other reasons", 34% are in favour, 38% opposed and 20% saying "it depends".
- A January 2016 Newstalk/Red C poll found that 78% of voters were in favour of allowing abortion in cases when the pregnancy arose as the result of rape or incest, 76% when there is a fatal foetal abnormality, 61% when there is a significant foetal disability or non-fatal foetal abnormality, 59% when the pregnant woman has suicidal feelings as a result of the pregnancy and 41% in any circumstances felt necessary by the pregnant woman. However, when asked if the Eighth Amendment should be removed from the constitution, only 48% said it should and 41% were opposed to removing it.
- An October 2016 Irish Times/Ipsos MRBI poll found that, regarding the Eighth Amendment, 18% said it should not be repealed; 55% said it should be repealed to allow for limited access to abortion in the cases of rape and fatal foetal abnormality; 19% said it should be repealed to allow for abortion in all cases requested, and 8% had no opinion. Support for a more liberal regime was strongest in Dublin and among younger people.
- An April 2017 Claire Byrne Live/Amárach Research Panel poll asked 1,000 adults "Do you agree with the Citizens' Assembly that abortion, with no restrictions as to reasons, should be made available in Ireland?" 50% said yes, 33% said no and 17% said that they didn't know.
- A May 2017 poll conducted by Ipsos MRBI found 76% of those asked were in favor of allowing abortion in cases of rape.
References
Citations
Footnotes
External links
- Oireachtas Committee on the Eighth Amendment of the Constitution -- Proceedings
Legislation
- from the Irish Statute Book
- Constitution of Ireland
- Eighth Amendment of the Constitution Act 1983
- Thirteenth Amendment of the Constitution Act 1992
- Fourteenth Amendment of the Constitution Act 1992
- Regulation of Information (Services Outside the State For Termination of Pregnancies) Act 1995
- Protection of Life During Pregnancy Act 2013
- Offences Against The Person Act 1861
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