The death last October of a young woman, Savita Halappanavar, refused an abortion in a Galway hospital that may well have saved her life because, she was told by staff, “this is a Catholic country”, was shocking and led to an eruption of anger across the State. It made headlines across the world. It forced the establishment parties to get off the fence they had been sitting on for over two decades and promise they would legislate for some sort of abortion rights.
The problem they said was one of legal clarity and certainty for the medical profession. At the time I argued that this was not the issue. The issue was the all too certain denial of women’s rights to control their own bodies and their own fertility to the degree that they could be left to die rather than be allowed to abort a foetus that could not survive.
Now the nature of the proposed legislation has been made public. It is clear from this that it is designed to protect the state and not women.
Enda Kenny spelled it out – the legislation “will not create any new rights.” Although arising from the Halappanavar case it will not prevent such a tragedy happening again. That’s about as damning a judgement as could be made given the circumstances.
The legislation will do nothing to facilitate abortion rights in cases of rape, incest or cases of foetal abnormality. The health of women is of no consideration. Abortion remains a crime and the 1861 British penalty of penal servitude for life has been replaced by the 21st century Irish penalty of 14 years imprisonment. Women may go to jail because it would be ‘inequitable to penalise the doctor but not the woman undergoing the procedure’. This will apply to pregnant women. The denial of rights is indivisible. Thousands of Irish women will be regarded as criminals who have escaped punishment only because their crime was perpetrated elsewhere. These women will continue to travel to Britain rather than face the bureaucratic obstacle course which seems designed to ensure their journeys continue.
These rules require two doctors to approve an abortion where there is a “real and substantial risk to the woman’s life” and one if the termination is considered “immediately necessary.” In the case of a woman at risk from suicide three doctors are required to approve (unanimously), two psychiatrists and a gynaecologist or obstetrician. If the woman is refused a termination she has the right to appeal in writing to two doctors if it involves physical risk and another three doctors if she is in danger of suicide. Again these are to be two psychiatrists and a gynaecologist or obstetrician.
The expertise of the medical profession is to be deployed in order to adjudicate on behalf of the State on women’s rights. That this expertise is not the real function but rather a justification of the fetters determined by the State is abundantly clear from the fact that a gynaecologist or obstetrician must be on both the original and review panel and the verdict must be unanimous. What expertise does a gynaecologist or obstetrician have in determining a woman’s state of mind? In what way is a medical emergency requiring only one doctor in any essential way different from one determined by the threat of suicide?
The legislation has been enacted to deal with the State’s non-compliance with the European Court of Human Rights, which had concluded unanimously that it had breached a woman’s right under Article 8 “by reason of the absence of any implementing legislative or regulatory regime providing an accessible and effective procedure by which she could have established whether she qualified for a lawful abortion in Ireland.” Now most women will know that they don’t and will face a struggle to affirm their rights if they think they do.
The State hopes that it will have neutralised the movement that wanted to affirm women’s rights and thereby bolster all the reactionary sections of society that seek to maintain the system of repression on which the Irish State was founded.
It would therefore be a mistake to welcome this legislation, this enactment that “will not create any new rights.” We should not get into a fight over whether only two doctors are required in cases of possible suicide rather than three. As has been pointed out by Doctors for Choice Ireland here , women will in all probability visit their GP first before going through the bureaucratic process meaning they could see two, three or four doctors initially.
Doctors for Choice Ireland put what we need to demand very succinctly “We believe that the safest way to protect all women in Irish society is to decriminalise abortion, leaving medical matters outside the criminal law. . . Women should have the choice to access safe abortion services with fully informed consent. To achieve this we will need to repeal the 8th amendment.”