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.
58. Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable … to be kept in penal servitude for life … 59. Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanor, and being convicted thereof shall be liable … to be kept in penal servitude …
These provisions enacted by the Parliament of the United Kingdom remained in force in Irish law until they were repealed by the Protection of Life During Pregnancy Act 2013.
Early twentieth century
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See also: Contraception in the Republic of Ireland |
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.[27] Over 100 Irish women were dying annually from unsafe backstreet abortions in the 1930s.[28]
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.[29] 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"[30] 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 years on appeal.[31][32][33] The Garda Commissioner's first annual report on crime published in 1947 made reference to the number of abortions that were performed illegally.[34] In the 1950s novels, autobiographies and works of non-fiction (including medical texts) that promoted or even described abortion were banned.[35] There were extremely few prosecutions for performing illegal abortion between 1952 and 1963,[36] 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, began to decline sharply.[citation needed] 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.[37] 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.[38] 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.[39] 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.[40] 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 died at birth.[41] It is alleged that she was denied treatments for her cancer while pregnant because the hospital did not wish to harm the foetus because of its Catholic ethos.
Eighth Amendment
The Pro-Life Amendment Campaign was founded in 1981 to campaign against the possibility of 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.[42] 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:
Article 40.3.3º 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.
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 took place in Ireland in the years leading up to 2018 to remove the eighth amendment. 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 counselling 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. This was 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. This Act was repealed on the commencement of the 2018 Act.
X Case and 1992 referendums
In 1992, in 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.
The Thirteenth and Fourteenth Amendments together added the following paragraphs to Article 40.3.3º:
This subsection shall not limit freedom to travel between the State and another state. This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.
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 could arrange for her to travel to Britain for an abortion against the wishes of her parents.[43][44]
The woman at the centre of the case has occasionally spoken about her experiences, but has not revealed her identity.[43]
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.[45] 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[46] 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".[46] 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.[47] 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.[47] The Court's decision is binding on Ireland and all of the member states of the Council of Europe.[48]
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.[49][50][51][52] 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.[53][54][55] 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 and constitutional change.[56]
Protection of Life During Pregnancy Act 2013
The Protection of Life During Pregnancy Act 2013 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.[57] 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.
Sections 7 and 8 provided for legal termination of pregnancies in cases of a risk of loss of life from physical illness, whereas section 9 provided for legal termination of pregnancies in cases of a risk of loss of life from suicide. Sections 58 and 59 of the Offences Against the Person Act 1861 were repealed, and effectively superseded by the offence defined in section 22:
22. (1) It shall be an offence to intentionally destroy unborn human life.(2) A person who is guilty of an offence under this section shall be liable on indictment to a fine or imprisonment for a term not exceeding 14 years, or both.
(3) A prosecution for an offence under this section may be brought only by or with the consent of the Director of Public Prosecutions.
Prior to this law, there was no standard to what conditions and situations would be considered to qualify for legal abortion in Ireland. This Act included a provision that allowed abortion only if there was a real and substantial risk to life, specifically pertaining to the life and health of the mother.[47] Within this provision, the women seeking to qualify for legal abortion were examined by an obstetrician and a relevant specialist to decide if she qualified. In a case of a mother feeling suicidal or threatening to commit suicide, she was examined by three specialists and the agreement of their decision was required for her to obtain a legal abortion. If certification for a legal abortion was refused, a woman could appeal the decision and have her situation and conditions reviewed again.[47]
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.[58]
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.[59][60] 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.[61] After the death of Savita Halappanavar, she gave up anonymity and spoke out.[62] 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 invariably 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.[63]
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.[64] The Irish government paid her €30,000 in compensation.[65][26]
In a case in 2010, the government of Ireland denied Siobhán Whelan an abortion despite being diagnosed with fatal foetal syndrome; she had 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.[66][67] The ruling was praised by the Center for Reproductive Rights.[67]
Abortion is currently permitted under the Health (Regulation of Termination of Pregnancy) Act 2018 where two medical practitioners are of the opinion formed in good faith that there is present a condition affecting the foetus that is likely to lead to the death of the foetus either before, or within 28 days of, birth.
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.[2] 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:
3º Provision may be made by law for the regulation of termination of pregnancy.[68]
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.[69] The Report of the Assembly was sent to the Joint Oireachtas Committee on the Eighth Amendment of the Constitution.[70] The Committee delivered its report in December 2017, and the report was debated in both Houses of the Oireachtas in January 2018.
The result of the referendum came after extensive social media campaigning coordinated the civil society organisation, Together For Yes.[71] The influence of using social media as a voice of change reminded voters of how 'local' the abortion issue was in Ireland, allowing women the right to be heard openly on national media.[72] Another strength of the 'feminist campaign' was the positioning of women from the private to the public sphere. By using social media to bring stories into the public, emotions were mobilised as a form of 'political resistance' to shed light on the potential damage a 'No' vote could cause.[73][74]
Ultimately, 39 of the 40 constituencies voted in favour of repealing the Eight Amendment.[75] The national result was:
| Choice | Votes | % |
|---|---|---|
 Yes
|
1,429,981 | 66.40 |
| No | 723,632 | 33.60 |
| Valid votes | 2,153,613 | 99.72 |
| Invalid or blank votes | 6,042 | 0.28 |
| Total votes | 2,159,655 | 100.00 |
| Registered voters/turnout | 3,367,556 | 64.13 |
A second draft of the Health (Regulation of Termination of Pregnancy) Bill was published by the Department of Health in July 2018.[76]
Health (Regulation of Termination of Pregnancy) Act 2018
The Health (Regulation of Termination of Pregnancy) Act 2018 defines the circumstances and processes within which abortion is legally performed in Ireland. It was signed by the President of Ireland on 20 December 2018, after being approved by both Houses of the Oireachtas, legalising abortion in Ireland. Abortion services commenced on 1 January 2019. This Act permits terminations to be carried out up to 12 weeks of pregnancy; or where there is a risk to the life, or of serious harm to the health, of the pregnant woman; or where there is a risk to the life, or of serious harm to the health, of the pregnant woman in an emergency; or where there is a condition present which is likely to lead to the death of the foetus either before or within 28 days of birth.
Mistaken cases of fatal foetal conditions
In March 2019, a woman in Dublin was told her baby was likely to have Edwards syndrome, considered a fatal foetal condition, following a positive non-invasive prenatal test (NIPT) and a positive chorionic villus sampling (CVS) diagnostic test, the mother opted for an amniocentesis, which did not show Edwards syndrome. She went on to give birth to a healthy baby without the condition.[77]
In 2019, a woman attending the National Maternity Hospital was also given a diagnosis of Edwards syndrome. An abortion was carried out after 15 weeks. Following the abortion, genetic tests proved negative for Edwards syndrome, leaving the parents devastated and demanding an external investigation, which the hospital agreed to.[78]
Pilots pressured into having abortions
According to the Irish Air Line Pilots' Association (IALPA), some female pilots of Irish registered airlines are under pressure to have an abortion if they become pregnant.[79] The issue was highlighted as many Irish-registered airlines use pilots hired under self-employed contracts. Such pilots, as they are deemed to be self-employed, can lose out on work and pay if they become pregnant as they are not entitled to maternity leave.[80]
GP abortion services
On 6 January 2019, it was reported that 200 GPs had registered to provide abortion services in Ireland.[81] By the end of 2019, less than 15% of the GPs in Ireland had signed up to provide abortion services.[82]
