Here we are again: another tragic story involving a vulnerable young woman being denied an abortion in Ireland. 2013 may have seen an Irish government pass legislation regulating abortion for the first time, but clearly, the more things change, the more they remain the same.
The precise details of the case that came to light last week are sketchy. Media reports are incomplete and, at times, contradictory. What we do know is that a young woman sought an abortion on the basis that she was suicidal. She was assessed by a panel of two psychiatrists and one obstetrician established under the new legislation. The panel found that she was suicidal, but that at 25 weeks, the baby was viable and should be delivered.
When refused an abortion, the woman began to refuse food and fluids. A court order was obtained allowing the HSE to administer fluids and another was sought to authorise a caesarean section. Before the latter was granted, the woman consented to this procedure; the baby was delivered and placed in the care of the State while the mother receives psychiatric treatment.
A complicating factor in the case was the woman’s immigration status, which prevented her from circumventing the restrictive Irish regime by travelling abroad for an abortion, as thousands do every year. In addition, reports suggest that the pregnancy resulted from a rape.
Women’s rights and pro-choice advocates have universally decried the disregard shown for the woman’s right to autonomy over her own body. They point to a vulnerable woman being forced to carry a baby she does not want; being force-fed to maintain that pregnancy; and being brought to a point where it seemed likely that she would be forced to undergo invasive surgery to deliver the baby. Many cite the UN Human Rights Committee’s recent comment that Irish law treats pregnant women as a mere vessel.
Meanwhile, with equal horror, pro-life advocates have repeated their mantra that there is no medical evidence to support the notion that terminating a pregnancy is a treatment for suicide. While an abortion did not take place here, they have nonetheless questioned why a baby would be intentionally delivered prematurely when there was no medical reason why the pregnancy could not continue. Moreover, they have argued that the panel might easily have authorised the abortion, and that this demonstrates the flawed nature of the new laws.
The Protection of Life in Pregnancy Act 2013 was designed as an imperfect compromise between two positions that share no common ground. Certainly, there are question marks around delays in the case, and if substantiated, they would be very serious. However, the HSE has stated that it did not become aware of the case until the pregnancy was over 20 weeks advanced, and it is therefore unclear for now whether the case could have been dealt with more quickly. If delay was not a factor, the Act seems to have otherwise operated almost exactly as intended here. Neither side may have gotten what they wanted, but ultimately, the lives of both mother and child were saved, in circumstances where it was plausible one or both might be lost.
The reason for having an obstetrician on the assessment panel is now somewhat clearer. The two psychiatrists assess the risk of suicide (which was found to be present here). The obstetrician examines the other question in the legislation – namely, whether the only way to avert that risk is to end the life of the unborn. If the unborn is viable, then it can be delivered and both lives can be saved, in accordance with the constitutional obligation to defend and vindicate the equal right to life of mother and unborn child.
In truth, both sides of this debate have legitimate points to make, and while no one seems satisfied with the outcome, everyone should pause to reflect. Pro-life advocates should ask themselves just what exactly they would be willing to do to a suicidal pregnant woman, who may be a rape victim, to maintain the pregnancy. There are surely limits here. Should she be force-fed and kept on permanent suicide watch for a period of several months?
Equally (and on the basis that delay has not been proven), pro-choice advocates should ask themselves whether a viable foetus, who could be delivered alive quickly and safely through a routine medical procedure, should be aborted. Again, there are surely limits here. A c-section can be performed in a matter of minutes; if the baby is capable of coming through unscathed, why possibly choose to abort instead?
Both sides agree on just one thing: that there should be another referendum on abortion. The problem is, they want to hold different referendums. Pro-choice advocates want to repeal the Eighth Amendment and liberalise Irish abortion laws. Pro-life advocates want to reverse the X case ruling allowing for abortion in cases of risk of suicide, thus making Irish abortion laws even more restrictive.
Our referendum system only allows for a binary choice. A single proposal is put forward, and voters have to choose between Yes and No. The system is not capable at present of giving multiple choices (as seen in the Seanad referendum, where the possibility of a reformed Seanad was not on the table). Faced with incompatible demands for constitutional reform, the most likely outcome is a familiar one (and has already been hinted at): the Government will do nothing. The present controversy will subside – until the next tragedy.
Dr Conor O’Mahony is a senior lecturer in constitutional law at University College Cork. Twitter: @ConorUCCLaw