Where now with the abortion issue in Ireland?

Abortion has been illegal in Ireland under the Offences Against the Person Act 1861.

The 8th Amendment to the Constitution in October 1983 introduced for the first time a constitutional ban on abortion by inserting Article 40.3.3:

‘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 is practicable, by its laws to defend and vindicate that right’.

The 8th Amendment was passed by a margin of 66.9% to 33.1% based on 1,265,994 votes and a voter turnout of 53.67%.

provides The 14th amendment to the Irish Constitution in 1992 specified that the constitutional ban would not prohibit the right to distribute information, subject to restriction as maybe prescribed by law, about abortion services in other countries. The 14th Amendment was passed by a margin of 59.8% to 40.2% based on 1,732,433 and a voter turnout of 68.1%.

The Report of the Expert Group established by the Minister for Health following the judgement of the Grand Chamber of the European Court of Human Rights is anticipated shortly.

This case involved three applicants A, B, and C, each of whom had a crisis pregnancy and their claim against Ireland was that there had been violations of Articles 2,3,8,13 and 14 of the European Convention on Human Rights.

The Grand Chamber determined that there had been a violation of Article 8 in respect of one applicant, C. Article 8 states that:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
   
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The Expert Group, under the leadership of Mr Justice Seán Ryan, has been mandated to examine this judgement and the implications of it on the provision of healthcare services to pregnant women in Ireland. They are also asked to recommend a series of options on how to implement the judgement taking into account the constitutional, legal, medical and ethical considerations involved in the formulation of public policy.

During the decade between 2002 and 2011 a total of 51,945 women, resident in the Republic of Ireland, had an abortion in England and Wales, of whom 415 were under the age 16 years and 5,922 were between the ages of 17 and 19. The corresponding total figure for Northern Ireland was 12,195 pregnancies terminated.

A total of 1.96 million abortions were conducted in England and Wales from 2002 to 2011 and 81% of these abortions were carried out for single women, a proportion that has risen from 76% since 2001. Some 20,299 of these abortions were carried out because there was a congenital malformation of the foetus under Statutory Ground E. These included deficiencies in the nervous system and chromosomal abnormalities as well as issues connected to maternal factors, congenital infectious disease and other disorders.

An abortion is a pregnancy lost in the first trimester, or 14 weeks, of pregnancy. The term, however, is applied to the termination of pregnancy by other means. A miscarriage occurs when a pregnancy is lost between 14 and 28 weeks which has traditionally been the point of independent viability although viability has been established as early as 24 weeks. A foetal heartbeat is evident from approximately 20 weeks gestation and a foetus can be independently viable from 24-28 weeks.

British abortion legislation does not apply to Northern Ireland and practice there varies from that in Great Britain. About 30 pregnancies are terminated each year in Northern Ireland on grounds that the foetus is abnormal.

The European Convention of Human Rights is of considerable significance for any discussion of the law relating to abortion for two reasons. Firstly the European Court of Human Rights can express an opinion as to whether there has been a violation of the Convention is a complaint is brought by an applicant. Secondly, the Convention has a special status in EU law. The 1992 Treaty of the European Union (Maastricht) provides that the EU shall respect fundamental rights (inter alia) as guaranteed by the Convention as general principles of EU law.

But Protocol 17 to the Treaty of the European Union states that:

Nothing in the Treaty on European Union, or in the Treaties establishing the European Communities, or in the Treaties or Acts modifying or supplementing those Treaties, shall affect the application in Ireland of Article 40.3.3 of the Constitution of Ireland.

There has also been a steady reduction in the number of Irish residents seeking to terminate crisis pregnancies in Britain with the annual number declining each year from 6,522 in 2002 to 4,149 in 2011.

Referendums in 1983 and 1992 have shown that it is extremely difficult to formulate referendum proposals on abortion. Ambiguities have been exposed in defining abortion and it is next to impossible to identify terms that convey certainty of meaning.

The All Party Oireachtas Committee on the Constitution deliberated on this issue from 1997 to 2000.  A Green Paper on abortion was referred to the Government in 1999.Submissions were considered from a wide range of interests – civic, medical and religious.

The Committee considered 7 scenarios:

1. an absolute constitutional ban on abortion
2. an amendment to the Constitution provision so as to restrict the application of the X Supreme Court case in 1992 concerning the threat of self-destruction can amount to a substantial risk to the life of the mother.
3. the retention of the status quo
4. the retention of the constitutional status quo with legislative restatement of the prohibition on abortion
5. legislation to regulate abortion in circumstances defined by the 1992 X Case
6. a reversion to the pre-1983 position
7. permitting abortion on grounds beyond those specified in the X Case.

The Committee agreed that a major problem facing Ireland is the large number of crisis pregnancies which resulted in recourse to abortion services elsewhere; that a decade ago there was an urgent need to reduce the number of crisis pregnancies and the importance of alternatives to abortion being available.