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The Eighth Amendment

The situation as it stands in Ireland is that abortion is illegal under nearly all circumstances under the Eighth Amendment, which guarantees equal rights for the woman and foetus. This includes women who are pregnant as result of rape or incest, or who are carrying an unviable foetus. A woman who has an illegal abortion in Ireland can face up to 14 years in prison, and healthcare workers who advise women to seek abortions can face criminal charges.

There are some limited circumstances where abortion is permitted under the status quo; namely, when a woman’s life is in real danger, from a medical emergency or threat of suicide. However, qualifying for the procedure is immensely complicated: Two physicians, one obstetrician and one specialist in the field of the relevant ailment must agree that the woman’s life is at risk, though in medical emergencies a single physician will suffice. In layman’s terms, if a woman with cancer wanted an abortion because she wanted to continue chemotherapy, she would have to consult two doctors, a doctor who specialises in pregnancies, and a doctor who specialises in cancer treatment. Due to the difficulty in qualifying – or even being aware that one could qualify – there were only 26 legal terminations carried out in Ireland in 2015.

Medical emergencies are complex in any circumstance, and intervening as soon as possible to prevent further distress and danger to the patient is usually good practice. However, because doctors are bound to “preserve unborn life as far as practicable,” it means that they are forced to wait until the woman’s life is in real danger before they intervene. The dangers inherent to such a law became apparent to the public in 2012 after the death of Savita Halappanavar. Ms Halappanavar had begun to miscarry her foetus, and requested an abortion, but was denied one on the grounds that the foetus still currently had a heartbeat. She subsequently died of preventable septic shock due to the delay in intervention. Savita’s death must shatter any claims that the 8th Amendment protects both woman and foetus, and that it creates a high standard of maternal care. Instead, it shows that the law conflicts doctors and endangers women.

The United Nations and the European Convention on Human Rights have both spoken out on the issue of abortion in Ireland, specifically in reference to fatal foetal abnormality. This is the instance where a foetus is so severely disabled as to not be able to survive outside of the womb. Numerous women have claimed that they were discriminated against as pregnant women, as no other person with such a serious medical issue would be denied care and advice. The UN found the law cruel and degrading as it forces women to choose between carrying a dying foetus or travelling abroad for an abortion. Both the UN and the ECHR called upon Ireland to, at a minimum; make the procedure by which women qualify for abortion safer, quicker, and more accessible.

Due to the extreme difficulty of procuring a legal abortion in Ireland, over nine women travel everyday to the UK to obtain one, totalling 3451 in 2015, according to the Irish Family Planning Association. However, this figure is likely an underestimation as not all women provide their Irish addresses at British abortion clinics, and some go even further afield than the UK.  While the twitter account @TwoWomenTravel recently reminded the public of the physical and mental toll that this journey takes, we must remember that it is not two women travelling, but thousands, and most of them go alone, as the trip is expensive.
There are thousands of personal tragedies created by Irish abortion law, but perhaps the most well-known is that of the X case. X was a fourteen year old girl who had been raped by her neighbour, and wished to travel to England to obtain an abortion. Before leaving, X’s family had asked police if the foetal remains could be used as evidence of rape. Upon hearing about the planned abortion, the Attorney General sought an injunction to keep her in the country. The case was brought to the Supreme Court, but X ultimately miscarried before it was resolved.  X’s rapist was convicted of statutory rape and he was sentenced to 14 years in prison, of which he served 3. He was then convicted of sexually-assaulting another 15-year old girl in 2002, and was sentenced to another 3 and a half years. It is worth remembering that if X had procured an illegal abortion in Ireland, she would have faced up to 14 years in prison.

There are lesser-known tragedies too, that deserve to be heard. One occurred in recent years, when an unnamed foreign national claimed to be raped in her home country attempted to travel from Ireland to the UK for an abortion, but was arrested upon arrival for illegal entry. Diagnosed as suicidal, the woman went on a hunger strike, but the HSE obtained a High Court order to hydrate her.  The baby was delivered via caesarian section at 25 weeks. Another case occurred in 2014 when a legally brain-dead woman who was in the early stages of pregnancy was kept on life-support despite her family’s wishes. The High Court finally ruled 25 days later that the machine could be turned off.

It is often argued that abortion has deeply negative effects on women’s emotional health. It would seem intuitive however, that it is the stigma around abortion in Ireland that causes distress. It is a legal system that violates the wishes of rape-victims, of teenagers, of the dead and those fighting cancer that causes distress. We are asking women to flee their own country at extortionate cost, and make them undergo a procedure when they are alone, scared and face huge stigma when they come home, so much so that many stay silent. Removing these factors would significantly decrease any mental trauma caused by abortion.

There is increasing pressure for change in Ireland, and the government has called upon a citizen’s assembly in October to debate whether a referendum is necessary. It must be clear by now to all that it is necessary. There are those who will always fundamentally disagree with abortion on moral grounds, and that is a legitimate view, and one we as a country must face head-on. We must discuss if your morality can stop someone else’s mother, their child, their sibling from receiving the care that they need. There will be arguments about ‘abortion-on-demand’, as if teenagers who have been raped use abortion services like they do Netflix. Do not allow those words to cloud what is really going on. Ireland is currently failing those who have been raped. It is failing those who are carrying babies that have no chance at survival; but more than that, it is failing the thousands of citizens who flee year in, year out to bleed on hotel sheets in foreign countries because we are not brave enough to look this issue in the eye. We must repeal the Eighth Amendment, and we must replace it with legislation we can be proud of.