The Eighth Amendment contravenes international human rights laws, violates woman’s rights, and forces women to seek dangerous routes to achieve an abortion.On International Women’s Day 2018, I attended a packed demonstration in Cork City to mobilise for the repeal of the Eighth Amendment. The Eighth Amendment of Ireland’s constitution is a huge impediment when it comes to accessing free, safe, and legal abortion in Ireland. The right to life of the unborn is protected by Article 40.3.3° of the Constitution (commonly called the Eighth Amendment). On top of this, the Protection of Life During Pregnancy Act 2013 provides for an offence of destroying unborn life, with exceptions only in the case of a risk to the life of the woman. It forces women in Ireland to travel abroad to end their pregnancies, or worse, to order potentially unsafe pills on the Internet to try and achieve an abortion.
It is my firm belief that the Eighth Amendment should be removed from the Irish constitution – and not replaced by any other amendment. Firstly, the constitution is not an appropriate legislative vehicle for a matter like abortion, and this is regardless of individual opinions on abortion itself. The Eighth Amendment is remarkably vague, and while one could argue that there is equally little in the way of consensus on abortion law going forward, it is clear that the complexities of unwanted or dangerous pregnancies and abortion in the 21st century are not even remotely served by the Eighth Amendment.
‘The complexities of unwanted or dangerous pregnancies and abortion in the 21st century are not even remotely served by the Eighth Amendment’
The constitution is, by its very nature, more inflexible than other laws. Contrary to popular belief, removing the Eighth Amendment will not leave a vacuum, but will mean that courts are more likely to defer to the Oireachtas on the Protection of Life During Pregnancy Act 2013. Hence, repealing the Eighth Amendment will enable the Oireachtas to fulfil its role more effectively, as part of a fully-functioning democracy.
Further, the Eighth Amendment confers ‘equal’ status on foetal life and the life of an adult woman. Removing the amendment would remove this parity of status in law, which has directly led to tragedies like the death of Savita Halappanavar. Halappanavar, a dentist originally from India, died of a septic miscarriage at University Hospital Galway in 2012, at 17 weeks pregnant. The miscarriage took seven days to unfold. Early in the process, when it was clear that the miscarriage was inevitable, Halappanavar requested an abortion. At that time the medical team had not diagnosed her with a blood infection, and her request was denied because the medical team did not judge that her life was in danger. Consultant obstetricians have since explained to Ireland’s Citizens Assembly that this threshold – between a woman’s health being adversely affected, and her life being endangered – has made their jobs extremely difficult, and increases the risk of avoidable maternal deaths.
‘Consultant obstetricians have since explained to Ireland’s Citizens Assembly that this threshold – between a woman’s health being adversely affected, and her life being endangered – has made their jobs extremely difficult, and increases the risk of avoidable maternal deaths’
Human rights implications
The prohibition of abortion, and the consequent discrimination against women who attempt to access healthcare in Ireland, have been roundly criticised by international human rights monitoring bodies. For instance, the UN Human Rights Committee found in June 2016 that Irishwoman Amanda Mellett – who was forced to choose between carrying her foetus to term (knowing it would not survive) or seeking an abortion abroad – was subjected to discrimination and cruel, inhuman, or degrading treatment. This was as a result of Ireland’s legal prohibition of abortion.
Upon her return to Ireland, Mellett was denied the bereavement counselling and medical care available to women who miscarry. Such differential treatment, the Committee noted, failed to take into account her medical needs and socio-economic circumstances, and constituted discrimination.
Several human rights are engaged in a lack of safe abortion provision: the pregnant woman’s right to health and privacy, and in some cases, their right to life and freedom from torture and inhuman or degrading treatment. In pitting the rights and lives of pregnant women and girls against the existence of foetal life, the Eighth Amendment contravenes international human rights law, which does not recognise a foetal right to life.
‘In pitting the rights and lives of pregnant women and girls against the existence of foetal life, the Eighth Amendment contravenes international human rights law, which does not recognise a foetal right to life’
In addition to violating the fundamental human rights of women and girls (as contained in international legal instruments), Ireland’s abortion laws also violate key human rights principles e.g. the right to self-determination, bodily integrity, and autonomy.
Marginalised women and girls
In broader terms, socio-economic, cultural, and political factors must be factored in to gender inequality. The Irish State’s failure to provide access to safe and legal abortion is the nexus of this.
Lack of abortion access is a social inclusion issue: marginalised women and girls, such as migrants and those living in poverty, are less likely to be able to travel to Britain or other European countries to access abortion services. This has intense ramifications for their mental and physical health, as they are either forced to carry their pregnancies to term, or resort to unsafe measures to secure a termination.
Women in disadvantaged areas may not have the opportunity to travel abroad for abortions. Also, there are further barriers for asylum-seeking women and Traveller women. Asylum-seekers may be afraid to seek assistance and support for fear that this could negatively impact their asylum application, while the lack of privacy for women living in accommodation centres (known as ‘direct provision’) hampers their ability to seek abortion-related information and services abroad.
‘Asylum-seekers may be afraid to seek assistance and support for fear that this could negatively impact their asylum application, while the lack of privacy for women living in accommodation centres (known as “direct provision”) hampers their ability to seek abortion-related information and services abroad’
Also, asylum-seekers cannot leave Ireland until their refugee or immigration status is determined. While the state can make exceptions for women to travel abroad for abortions, this is very much at the discretion of the Irish Naturalisation and Immigration services. It relies on women completing the relevant paperwork (and overcoming potential language barriers with the use of interpreters), being able to pay travel document and visa costs (on an income of approximately 19 Euros per week), and not being too far along in their pregnancy (factoring in delays between making the application and being granted permission to travel).
It is well-known that many Travellers have difficulties in accessing GP services. This is particularly pertinent for Traveller women: the services they do manage to access often make no attempt to understand cultural differences, and the impact these may have on Traveller women’s relationships with their families and communities.
The close-knit nature of family relationships in Traveller communities makes it difficult to travel abroad for an abortion without the knowledge of other community members.
There is also the impact of the Irish state’s measures on the mental health of women with unwanted pregnancies. Dr Peadar O’Grady, a Consultant Psychiatrist, makes it clear that for women with unwanted pregnancies, ‘restricting access to abortion raises the risk of suicide.’
Obtaining medical information
Further, the suffering of women who attempt to access abortions is compounded by obstacles in obtaining accurate medical information. Ireland’s Abortion Information Act allows healthcare providers to give patients information about abortion, including the circumstances under which abortion services can be available overseas. But under this law they are prohibited from, and could be sanctioned for, behaviour that could be interpreted as advocating or promoting the termination of pregnancy. This invariably leads to gaps in information provision, putting women at further risk of physical and emotional harm.
The Eight Amendment to the constitution is dangerous to women’s health and well-being, and effectively means that women are discriminated against in healthcare settings, compared to men.
As a British citizen who has lived and worked in Ireland for 18 months, I do not have a vote in the forthcoming Referendum on the Eighth Amendment. But I will continue to do everything I can to encourage people to look at international human rights law and practice in this area, and testimonies from medical specialists plus women who have had abortions, before casting their vote.
Tehmina is a campaigner, author, and former director of British Muslims for Secular Democracy