Abortion in Ireland
Encyclopedia
Abortion
in Ireland
is illegal unless the pregnancy is in threat of endangering the life of the woman (as differential to her health) through continuance of the pregnancy.
remained in force, maintaining all abortions to be illegal and subject to punishment. One of Ireland's best known abortionists, Mamie Cadden
was famously sentenced to death by hanging in 1957 when one of her patients died. In response to the 1967 legalisation of abortion in the United Kingdom
and the subsequent rise in the numbers of Irish women travelling to the UK each year to obtain an abortion, pro-life groups in Ireland began to press for an explicit amendment to the Irish constitution banning abortion. In 1983 the Constitution of Ireland
was amended to add in what became generally known as the 'Pro Life Amendment'
, which asserted that the unborn had an explicit right to life from the time of conception, with the Irish State guaranteeing to vindicate that right. In the referendum, the case for the amendment was argued by the main opposition party Fianna Fáil
, the Catholic Church, some Protestant church leaders and a pro-life lobby group called the Pro-Life Amendment Campaign (PLAC) (which had campaigned for the amendment, arguing that the Irish Courts could theoretically face their own Roe v. Wade
court case) while the case against was put forth by a pro-choice lobby group called the Anti-Amendment Campaign, which included future President of Ireland
Mary Robinson
. The Pro Life Amendment Campaign subsequently became the Pro Life Campaign
. The arguments against the amendment were also put by the Irish government then led by the centre-right Fine Gael
under Garret FitzGerald
, and most mainstream Protestant leaders. In the debate, no one actually advocated the legalisation of abortion.
While the 'Pro-Life Amendment' established the principle of the right to life of the fetus
, with due regard to the equal right to life of the woman in Irish constitutional law, practical problems subsequently arose with its meaning. In 1992, a major controversy erupted over the issue of whether a suicidal minor who was a statutory rape
victim, and who became pregnant, could leave Ireland for an abortion that is lawful in another country (Attorney General v. X
, known as the 'X Case'). The Supreme Court interpreted the Pro-Life Amendment as giving a right to abortion in certain limited circumstances, in a judgment which came to be known as the 'X Case,' including when the woman's life was in danger.In the aftermath of the Grogan case the debate over Abortion in Ireland grew even more heated with widespread demonstrations taking place all over the country. In one instance one hundred thousand people marched from O'Connell Street to the Irish Parliament.
Court injunctions issued in 1988 and 1990 under the 1983 amendment barred family planning groups and student groups from offering abortion counseling, information and aid in travelling to Britain to procure abortions. These injunctions grew increasingly unpopular, particularly after the 'X case'. Questions were also raised as to whether the bans on access to information violated provisions in the Maastricht Treaty
.
to legislate on this, however no political party has risked it, and in the meantime, while it is legal in theory, the body that holds medical licences in Ireland considers it malpractice for any doctor to perform an abortion. The Irish Medical Council stated "The deliberate and intentional destruction of the unborn child is professional misconduct. Should a child in utero lose its life as a side-effect of standard medical treatment of the mother, then this is not unethical. Refusal by a doctor to treat a woman with a serious illness because she is pregnant would be grounds for complaint and could be considered to be professional misconduct".
Estimates to the number of Irish women seeking abortions in Britain vary; in the 1990s it is alleged that between 1,500 and 10,000 women who stated in hospital records that they were 'Irish' travel annually. The official figure is 45,000 since 1967. In May 2007, a pregnant 17 year old girl, known only as "Miss D", who was pregnant with a fetus suffering from anencephaly
was prevented from travelling to Britain
by the Health Service Executive
. The High Court ruled on May 9, 2007 that she could not be prevented from travelling because she was a ward of the state.
It has never been illegal in Ireland to provide standard medical care to a pregnant woman which may result in an indirect abortion. That is, where the abortion is not the desired outcome of the act, but a side effect of the treatment. The crime under the Offences Against the Person Act 1861 occurs when the intention is the deliberate and direct abortion of the fetus. As with any criminal offence Mens rea
must be proved as well as Actus reus
.
In 2005, three Irish women who had previously traveled 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 held there is no right for women to an abortion, 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. The Court's decision is binding on Ireland and all of the contracting states of the European Council.
The law, at the moment, is tainted with ambiguities and contradictions, the original amendment modified by referenda and court decisions. However, even in its current state, Article 40.3.3 still makes abortion illegal by offering status to the fetus.
Abortion
Abortion is defined as the termination of pregnancy by the removal or expulsion from the uterus of a fetus or embryo prior to viability. An abortion can occur spontaneously, in which case it is usually called a miscarriage, or it can be purposely induced...
in Ireland
Republic of Ireland
Ireland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
is illegal unless the pregnancy is in threat of endangering the life of the woman (as differential to her health) through continuance of the pregnancy.
History
At independence, the Offences against the Person Act 1861Offences Against The Person Act 1861
The Offences against the Person Act 1861 is an Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against the person from a number of earlier statutes into a single Act...
remained in force, maintaining all abortions to be illegal and subject to punishment. One of Ireland's best known abortionists, Mamie Cadden
Mamie Cadden
Mary Anne "Mamie" Cadden was an Irish midwife, backstreet abortionist and convicted murderer.-Background:...
was famously sentenced to death by hanging in 1957 when one of her patients died. In response to the 1967 legalisation of abortion in the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
and the subsequent rise in the numbers of Irish women travelling to the UK each year to obtain an abortion, pro-life groups in Ireland began to press for an explicit amendment to the Irish constitution banning abortion. In 1983 the Constitution of Ireland
Constitution of Ireland
The Constitution of Ireland is the fundamental law of the Irish state. The constitution falls broadly within the liberal democratic tradition. It establishes an independent state based on a system of representative democracy and guarantees certain fundamental rights, along with a popularly elected...
was amended to add in what became generally known as the 'Pro Life Amendment'
Eighth Amendment of the Constitution of Ireland
The Eighth Amendment of the Constitution of Ireland introduced a constitutional ban on abortion. It was effected by the Eighth Amendment of the Constitution Act, 1983, which was approved by referendum on 7 September 1983 and signed into law on the 7 October of the same year.-Changes to the...
, which asserted that the unborn had an explicit right to life from the time of conception, with the Irish State guaranteeing to vindicate that right. In the referendum, the case for the amendment was argued by the main opposition party Fianna Fáil
Fianna Fáil
Fianna Fáil – The Republican Party , more commonly known as Fianna Fáil is a centrist political party in the Republic of Ireland, founded on 23 March 1926. Fianna Fáil's name is traditionally translated into English as Soldiers of Destiny, although a more accurate rendition would be Warriors of Fál...
, the Catholic Church, some Protestant church leaders and a pro-life lobby group called the Pro-Life Amendment Campaign (PLAC) (which had campaigned for the amendment, arguing that the Irish Courts could theoretically face their own Roe v. Wade
Roe v. Wade
Roe v. Wade, , was a controversial landmark decision by the United States Supreme Court on the issue of abortion. The Court decided that a right to privacy under the due process clause in the Fourteenth Amendment to the United States Constitution extends to a woman's decision to have an abortion,...
court case) while the case against was put forth by a pro-choice lobby group called the Anti-Amendment Campaign, which included future President of Ireland
President of Ireland
The President of Ireland is the head of state of Ireland. The President is usually directly elected by the people for seven years, and can be elected for a maximum of two terms. The presidency is largely a ceremonial office, but the President does exercise certain limited powers with absolute...
Mary Robinson
Mary Robinson
Mary Therese Winifred Robinson served as the seventh, and first female, President of Ireland from 1990 to 1997, and the United Nations High Commissioner for Human Rights, from 1997 to 2002. She first rose to prominence as an academic, barrister, campaigner and member of the Irish Senate...
. The Pro Life Amendment Campaign subsequently became the Pro Life Campaign
Pro Life Campaign
After the Eighth Amendment of the Constitution of Ireland was ratified in September 1983, a number of those involved in that campaign, including some lawyers, decided to initiate legal proceedings through SPUC . The targets were two abortion referral agencies in Dublin. The cases started in 1985,...
. The arguments against the amendment were also put by the Irish government then led by the centre-right Fine Gael
Fine Gael
Fine Gael is a centre-right to centrist political party in the Republic of Ireland. It is the single largest party in Ireland in the Oireachtas, in local government, and in terms of Members of the European Parliament. The party has a membership of over 35,000...
under Garret FitzGerald
Garret FitzGerald
Garret FitzGerald was an Irish politician who was twice Taoiseach of Ireland, serving in office from July 1981 to February 1982 and again from December 1982 to March 1987. FitzGerald was elected to Seanad Éireann in 1965 and was subsequently elected to Dáil Éireann as a Fine Gael TD in 1969. He...
, and most mainstream Protestant leaders. In the debate, no one actually advocated the legalisation of abortion.
While the 'Pro-Life Amendment' established the principle of the right to life of the fetus
Fetus
A fetus is a developing mammal or other viviparous vertebrate after the embryonic stage and before birth.In humans, the fetal stage of prenatal development starts at the beginning of the 11th week in gestational age, which is the 9th week after fertilization.-Etymology and spelling variations:The...
, with due regard to the equal right to life of the woman in Irish constitutional law, practical problems subsequently arose with its meaning. In 1992, a major controversy erupted over the issue of whether a suicidal minor who was a statutory rape
Statutory rape
The phrase statutory rape is a term used in some legal jurisdictions to describe sexual activities where one participant is below the age required to legally consent to the behavior...
victim, and who became pregnant, could leave Ireland for an abortion that is lawful in another country (Attorney General v. X
Attorney General v. X
Attorney General v. X was a 1992 Irish Supreme Court case which established the right of Irish women to an abortion if a pregnant woman's life was at risk because of pregnancy, including the risk of suicide....
, known as the 'X Case'). The Supreme Court interpreted the Pro-Life Amendment as giving a right to abortion in certain limited circumstances, in a judgment which came to be known as the 'X Case,' including when the woman's life was in danger.In the aftermath of the Grogan case the debate over Abortion in Ireland grew even more heated with widespread demonstrations taking place all over the country. In one instance one hundred thousand people marched from O'Connell Street to the Irish Parliament.
Court injunctions issued in 1988 and 1990 under the 1983 amendment barred family planning groups and student groups from offering abortion counseling, information and aid in travelling to Britain to procure abortions. These injunctions grew increasingly unpopular, particularly after the 'X case'. Questions were also raised as to whether the bans on access to information violated provisions in the Maastricht Treaty
Maastricht Treaty
The Maastricht Treaty was signed on 7 February 1992 by the members of the European Community in Maastricht, Netherlands. On 9–10 December 1991, the same city hosted the European Council which drafted the treaty...
.
Constitutional Referendum 1992
Another referendum was held in 1992, in which two amendments were passed that established the 'right to travel' and the 'right to information'. A third proposal, the proposed Twelfth Amendment, would have defined when abortions could be considered legal, but was defeated. The 1992 referendum was fought at the same time as a general election which filled the newspapers and airwaves. This pushed the referendum to the very margins of public debate and whatever debate took place was on the substantive issue and not on Information or Travel. The Government also spent public funds on one-sided advertisements - a practice later declared unconstitutional in the McKenna judgement. The amendment on the substantive issue was rejected and Travel and Information amendments were passed though nearly 40% opposed the latter. Due to questions about the constitutionality of the amendments, the changes did not come into force until 1995.Constitutional Referendum 2002
A further referendum was held in 2002 on the Twenty-fifth Amendment, but it too failed to enact any regulatory changes.Public opinion
- A 1997 Irish Times/MRBI poll found that 18% believe 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 SurgeonsRoyal College of Surgeons in IrelandThe Royal College of Surgeons in Ireland , is a Dublin-based medical institution, situated on St. Stephen's Green. The college is one of the five Recognised Colleges of the National University of Ireland...
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 ExaminerIrish ExaminerThe Irish Examiner, formerly The Cork Examiner and then The Examiner, is an Irish national daily newspaper which primarily circulates in the Munster region surrounding its base in Cork, though it is available throughout the country...
/Lansdowne poll found that 36% believe abortion should be legalized while 47% do not. - A June 2007 TNSTaylor Nelson SofresTaylor Nelson Sofres is a leading market research and market information group. Formerly listed on the London Stock Exchange and a constituent of the FTSE 250 Index, the firm was acquired by WPP Group in October 2008 for 1.6 billion pounds.-History:...
/MRBI poll found that 43% supported legal abortion if a woman believed it was in her best interest while 51% remained opposed. 82% favoured legalization for cases when the woman's life is in danger, 75% when the fetus cannot survive outside the womb, and 73% when the pregnancy has resulted from sexual abuse. - A January 2010 Irish ExaminerIrish ExaminerThe Irish Examiner, formerly The Cork Examiner and then The Examiner, is an Irish national daily newspaper which primarily circulates in the Munster region surrounding its base in Cork, though it is available throughout the country...
/RedC online poll found that 60% of 18-35 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. - In January 2010 Irish bookmaker Paddy Power started betting on when a referendum would be held in Ireland to legalise abortion. They offered odds of 2/5 (bet 50 euro to make 20 euro profit) on no referendum being held before 2015 and 18/1 that one would be held in 2011. The betting suggested that if a referendum was held then it was more likely to legalise abortion than not; Paddy Power offered odds of 4/6 it would be passed and 11/10 that it would not.
- A March 2010 Irish Family Planning Organisation/Marie Stopes/YouGov poll showed that over three-quarters of the population wanted abortion laws liberalised. The poll revealed that 87% agreed abortion should be permitted if there is a threat to a woman's life, 79% agreed it should be permitted if there is a threat to the woman's health, 78% agreed it should be permitted if the pregnancy was the result of sexual abuse, rape or incest, 62% agreed it should be permitted if there is a profound fetal abnormality and 41% agreed it should be allowed if the woman believes it is in her (or her family's) best interest. Only 3% felt that abortion is not acceptable under any circumstances.
- An April 2010 Millward Browne Lansdowne poll commissioned by the Pro Life Campaign showed that 70% of people were in favour of the constitutional protection of the unborn that prohibits abortion but allows existing practice of intervention to save a mother’s life in accordance with Irish medical ethics. 13% were opposed and 16% had no opinion. This poll was carried out via face-to-face interviews.
- A September 2010 Millward Browne Lansdowne poll commissioned by the Pro Life Campaign showed that 68% of people were in favour of the constitutional protection of the unborn that prohibits abortion but allows existing practice of intervention to save a mother's life in accordance with Irish medical ethics. 14% were opposed and 18% had no opinion. This poll was carried out via face-to-face interviews.
- A February 2011 RED C opinion poll commissioned by the Pro Life Campaign showed that 68% of people were in favour of the constitutional protection of the unborn that prohibits abortion but allows existing practice of intervention to save a mother's life in accordance with Irish medical ethics.
Summary
No clear result or consensus has emerged. In theory, abortion is legal in Ireland if there is a risk to the life of the woman. A provision exists in the Irish constitution to allow Dáil ÉireannDáil Éireann
Dáil Éireann is the lower house, but principal chamber, of the Oireachtas , which also includes the President of Ireland and Seanad Éireann . It is directly elected at least once in every five years under the system of proportional representation by means of the single transferable vote...
to legislate on this, however no political party has risked it, and in the meantime, while it is legal in theory, the body that holds medical licences in Ireland considers it malpractice for any doctor to perform an abortion. The Irish Medical Council stated "The deliberate and intentional destruction of the unborn child is professional misconduct. Should a child in utero lose its life as a side-effect of standard medical treatment of the mother, then this is not unethical. Refusal by a doctor to treat a woman with a serious illness because she is pregnant would be grounds for complaint and could be considered to be professional misconduct".
Estimates to the number of Irish women seeking abortions in Britain vary; in the 1990s it is alleged that between 1,500 and 10,000 women who stated in hospital records that they were 'Irish' travel annually. The official figure is 45,000 since 1967. In May 2007, a pregnant 17 year old girl, known only as "Miss D", who was pregnant with a fetus suffering from anencephaly
Anencephaly
Anencephaly is a cephalic disorder that results from a neural tube defect that occurs when the cephalic end of the neural tube fails to close, usually between the 23rd and 26th day of pregnancy, resulting in the absence of a major portion of the brain, skull, and scalp...
was prevented from travelling to Britain
Great Britain
Great Britain or Britain is an island situated to the northwest of Continental Europe. It is the ninth largest island in the world, and the largest European island, as well as the largest of the British Isles...
by the Health Service Executive
Health Service Executive
The Health Service Executive is responsible for the provision of healthcare providing health and personal social services for everyone living in Ireland, with public funds. The Executive was established by the Health Act, 2004 and came into official operation on January 1, 2005...
. The High Court ruled on May 9, 2007 that she could not be prevented from travelling because she was a ward of the state.
It has never been illegal in Ireland to provide standard medical care to a pregnant woman which may result in an indirect abortion. That is, where the abortion is not the desired outcome of the act, but a side effect of the treatment. The crime under the Offences Against the Person Act 1861 occurs when the intention is the deliberate and direct abortion of the fetus. As with any criminal offence Mens rea
Mens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
must be proved as well as Actus reus
Actus reus
Actus reus, sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability in the common law-based criminal law jurisdictions...
.
In 2005, three Irish women who had previously traveled to England for abortion brought suit in the European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
asserting that restrictive and unclear Irish laws violate several provisions of the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
. The case A. B. and C. v. Ireland
A. B. and C. v. Ireland
A, B and C v Ireland [2010] is a landmark case of the European Court of Human Rights on the right to privacy under article 8 ECHR. It held there is no right for women to an abortion, although it found that Ireland had violated the Convention by failing to provide an accessible and effective...
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 held there is no right for women to an abortion, 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. The Court's decision is binding on Ireland and all of the contracting states of the European Council.
The law, at the moment, is tainted with ambiguities and contradictions, the original amendment modified by referenda and court decisions. However, even in its current state, Article 40.3.3 still makes abortion illegal by offering status to the fetus.
See also
- An Irish solution to an Irish problemAn Irish solution to an Irish problemThe availability of contraception in the Republic of Ireland was illegal in the Irish Free State from 1935 until 1980, when it was legalized with strong restrictions, later loosened...
- A. B. and C. v. IrelandA. B. and C. v. IrelandA, B and C v Ireland [2010] is a landmark case of the European Court of Human Rights on the right to privacy under article 8 ECHR. It held there is no right for women to an abortion, although it found that Ireland had violated the Convention by failing to provide an accessible and effective...
- Abortion lawAbortion lawAbortion law is legislation and common law which pertains to the provision of abortion. Abortion has been a controversial subject in many societies through history because of the moral, ethical, practical, and political power issues that surround it. It has been banned frequently and otherwise...
- Attorney General v. XAttorney General v. XAttorney General v. X was a 1992 Irish Supreme Court case which established the right of Irish women to an abortion if a pregnant woman's life was at risk because of pregnancy, including the risk of suicide....
- Eighth Amendment of the Constitution of IrelandEighth Amendment of the Constitution of IrelandThe Eighth Amendment of the Constitution of Ireland introduced a constitutional ban on abortion. It was effected by the Eighth Amendment of the Constitution Act, 1983, which was approved by referendum on 7 September 1983 and signed into law on the 7 October of the same year.-Changes to the...
- Contraception in the Republic of Ireland