Illustration by Enagh Farrell
Dr Michelle Farrell is a Senior Lecturer in the University of Liverpool’s School of Law and Social Justice
On Friday, May 25 2018, Ireland may decide to change, not just the Constitution, but its attitude to women. This historical referendum has been an exhausting, inspiring battle. Women have been on the frontlines: women who have had abortions, by necessity and choice; women who have told their stories, publically and anonymously; women who have campaigned for years; women, canvassing, with experience or as first timers; women – lawyers, doctors, professionals – armed with their expertise.
Abortion is an emotive and divisive issue. Debates reveal deep ideological, spiritual and ethical cleavages. It is therefore remarkable in this campaign that those leading the YES side have succeeded in keeping the debate focused on facts. Personal experience and professional expertise have been at the forefront.
Engaged voters will go to their polling stations on 25 May informed on the legal need for repeal, if any change is to come, and on the implications of their repeal vote.
“Provision may be made by law for the regulation of termination of pregnancies”
If Ireland votes YES, it will choose to repeal the 8th amendment to the Irish constitution and to replace this with an address to the Oireachtas to legislate for abortion. The referendum does not decide what kind of abortion law Ireland will have (although the proposed legislation exists and is a manifest part of the debate). In order to legislate, constitutional amendment is first necessary; the 8th amendment must be removed.
The Pro-Life Amendment
On 7 September 1983, the 8th amendment was passed. The so-called Pro-Life Amendment recognises the constitutional “right to life of the unborn” and obliges the state to “defend and vindicate that right”. The right to life of the unborn is to be respected with (an unworkable, patronising, and deeply disingenuous) “due regard to the equal right to life of the mother”.
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 8th, a constitutional ban on abortion, and the source of one of the most restrictive abortion regimes in the world, has survived for 35 years. In that time, women have died, woman have suffered and women have been silenced.
The only exception to Ireland’s abortion ban is in the case of a “real and substantial risk” to the life of the mother. The Protection of Life during Pregnancy Act 2013, introduced in the aftermath of the death of Savita Halappanavar, and which gives effect to the Supreme Court’s decision in the X case, regulates the constitutional ban on abortion, giving exception only in the cases of risk to the life of the mother from a physical illness or by way of suicide. Abortion in cases of rape, incest or fatal foetal diagnoses are illegal, unconstitutional.
Freedom “to travel”
Under article 40.3.3 of the Constitution women cannot be prevented from travelling to access abortion services abroad. This, the 13th amendment, was introduced, along with the freedom to access information about abortion services abroad, following a referendum in 1992.
This leads to the paradoxical and ethically curious position whereby women in Ireland do have the right to access abortion services, just not in Ireland. The Irish Family Planning Association estimates that between 1983 and 2016 at least 170,216 women and girls travelled from Ireland to access abortion services abroad. Most of these women came to England. Every day, approximately 9 women have to take that difficult, dangerous and costly trip.
Many more women, probably around 2 a day, access abortion pills online and take them, illegally, without supervision, without aftercare and in the shadow of a maximum 14 year sentence for conviction.
“In her shoes”: Giving Voice to the Experience of Women
One of the most stirring and effective of the referendum campaign initiatives is the facebook forum “In her Shoes” which provides a platform for women who have had to travel to access abortion to tell their stories. The stories speak for themselves. “In her shoes” has elevated experience in this abortion debate. It counters the myths about abortions and demonstrates that, in the tireless words of Professor Louise Kenny, “there is always a reason”.
Stand in awe of all Mná: the Expertise of Obstetricians, GPs, Lawyers and Activists
The experience of women and the experience of couples, particularly those couples who have had to access abortion services abroad following the diagnosis of fatal foetal abnormalities, has been central to the debate.
Standing right behind these women have been a whole host of experts. In this era, facts are “alternative”, facts are made irrelevant. That has, of course, also been a feature of this campaign. The campaign has been fraught. But expertise has also been key to keeping the debate focused. Obstetricians, doctors and lawyers have tirelessly and repeatedly argued the facts. These campaigners have had to underscore the reality that the 8th amendment does not stop abortion; it forces women to travel or take illegal abortion pills. They have had to explain over and over that, in order to accommodate any change to the law on abortion to provide for health exceptions, fatal foetal abnormality diagnoses and cases of rape or incest, repeal is necessary. They have had to assert the positive case for women’s bodily autonomy and integrity, choice and basic healthcare.
The combination of grassroots campaigning and expert voices in this campaign has been inspiring. The referendum is about reproductive healthcare, reproductive rights and reproductive justice. Make no mistake, though, it is also about women and their place in Irish society. It is about equality, self-determination and female liberation. If Ireland votes YES, it will be because women have won after a long struggle.
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