Tuesday August 19, 2014
The case for repealing the Eighth Amendment
The Protection of Life During Pregnancy Act, enacted following the death of Savita Halappanavar, was meant to bring to an end the agonising about Ireland’s abortion regime and the long failure to legislate for the existing constitutional provision. The news that a vulnerable and suicidal young rape victim was denied an abortion in a timely way and ended up having a Caesarean section to deliver her baby prematurely shows that it has signally failed to do so.
The facts of the case, as we know them, are horrific. The young woman came to Ireland following a traumatic rape in her own country, resulting in pregnancy. She immediately told certain statutory authorities (though apparently not the HSE) she wanted an abortion. She was not directed to the appropriate medical services. Her circumstances were such that she could not travel abroad for an abortion, so she was forced to continue with the pregnancy against her will, as evidenced by the fact that she went on hunger and thirst strike. When she eventually obtained medical help she was found by the panel of experts to be suicidal, but they considered it was too late for an abortion and medical intervention, also against her will, became necessary to save her life and that of the child.
The Act is silent on the gestational stage at which an abortion may take place to save the life of the mother. It is also unclear about who is obliged to pass on to the appropriate medical authorities the clearly-expressed wish of a suicidal woman to have an abortion, particularly if she is vulnerable and has communication difficulties, as this woman had due to not being able to speak English. Its restrictions clearly bear most heavily on the most vulnerable.
But even if these matters are clarified by further legislation, the Act falls short of a growing consensus that the abortion regime defined by the Eighth Amendment and the subsequent Supreme Court suicide ruling does not meet the needs of women in crisis pregnancies. The Master of the Rotunda Hospital, Dr Sam Coulter-Smith, along with a number of politicians, has urged a further referendum to remove confusion on the issue in the context of rape and fatal foetal abnormalities.
The latest case demonstrates pregnancy as a result of rape does indeed lead some victims to consider suicide. Many more rape victims will wish to terminate the pregnancy, though they may not threaten suicide or embark on suicidal behaviour, and should not have to. A few courageous women have made the case for the right to have their pregnancies terminated where there was no chance of the foetus surviving outside the womb. The case for including among the referendums planned for next year one to repeal the Eighth Amendment in order to allow for abortion in the case of rape and foetal abnormality is now compelling.
Tuesday August 19, 2014
State needs to review the 2013 Abortion Act
Last year's abortion legislation was introduced in the wake of the death of Savita Halappanavar
THE full facts of the case of a young asylum seeker refused an abortion are yet to emerge. But it is already apparent that the substantive and procedural rights afforded to women under the new Protection of Life During Pregnancy Act may not be fully accessible.
The case is the first example of suicide being cited as a grounds for the termination of a pregnancy under the new abortion laws whose own birth was dominated by disputes over the inclusion of the suicide clause to bring Ireland's law into line with the 1992 X Case.
If the teenage rape victim requested a termination as far back as April, it begs questions as to why she was not referred to a GP or relevant health professional to ascertain if she was suitable for assessment under the act.
It is vital that we fill the gaps in the missing 12 weeks between the initial discovery of her pregnancy and her formal request - at some 22 weeks' gestation - for a termination on suicide grounds.
The Health Services Executive (HSE) is responsible for the provision of medical services for all asylum seekers, including unaccompanied and "aged out" minors who have reached the age of majority but are deemed to be vulnerable.
The agency has commenced an inquiry into the young woman's case.
But the inquiry should not look at the facts from a medical perspective alone. The woman had her baby delivered at 25 weeks by caesarean section after she was refused a termination by an expert panel and went on hunger strike.
The Department of Justice has overall responsibility for the operation of our asylum system, including the much-maligned system of direct provision.
That department's role and operations must also be scrutinised as part of any credible review, as the State could be subject to litigation over any perceived delays and failure to implement its own laws.
The Government should therefore move to set up an independent, multi-departmental inquiry and review the act.
The plight of the girl serves as an indictment not just of the efficacy of the 2013 Act but also of the system of direct provision which tries but cannot meet the complex health - including mental health - needs of asylum seekers.
Time to bring student 'digs' back in vogue
For many, the idea of rooming with a family in student “digs” will conjure up visions of penny-pinching landlord Rigsby and his unrequited pursuit of Ms Jones in the classic comedy Rising Damp, or of frayed carpets and overbearing landladies and landlords.
There’s no reason that should be the case. If householders and students respect each others’ boundaries, they have a huge amount to offer one another.
The same factors driving homelessness and a shortage of family homes mean that in Dublin in particular the shortage of student accommodation is particularly acute this year.
At the same time, a generation of homeowners is struggling with big mortgages taken out during the boom – some of whom at least have spare rooms that could be used to help service those loans. Uniquely, up to €10,000 a year can be earned tax free from renting out a room. For first-year students in particular, “digs” can provide affordable housing and help ease the transition to living away from home. It’s an idea whose time has come back.
Monday August 18, 2014
Once again, vulnerable young women pay the price for political cowardice
A candlelight vigil to mark the first anniversary of the tragic death of Savita Halappanavar at University Hospital Galway last year
A young woman, a teenager for argument's sake, is violently raped.
The trauma of that sexual violence and other complex factors in her life means that she has suicidal intent and does not want to proceed with the pregnancy. A sole psychiatrist forms the view that her life is at risk from suicide and believes that the ending of the pregnancy is the only way to save her life.
Had this hypothetical girl gone to the High Court before January, she would - under the 1992 X case - have been allowed a termination under Irish law.
This was the type of tragic scenario that last year's Protection of Life During Pregnancy Act was designed to accommodate, to prevent women from throwing themselves at the mercy of the courts where they had met the test set out in X.
And yet, in the first known test of our new abortion laws, a young rape victim was refused a termination despite the fact that an expert panel who assessed her not just determined - but certified - that there was a risk to her life from suicide.
However, her request was refused as it was deemed that early delivery by caesarean section was the best option in the circumstances.
The young woman, who could not travel overseas for a termination because of her legal status, went on hunger strike on foot of her belief that her request for an abortion was refused.
This prompted the Health Service Executive (HSE) to seek a court order allowing it to forcibly hydrate her. The order was granted but not relied upon because the young woman gave birth to her baby after it was delivered prematurely by caesarean section - at between 24 and 26 weeks gestation.
The available facts surrounding this case, hampered in part by reporting restrictions, are still too sparse to warrant full interrogation.
But they are laid sufficiently bare to expose the endemic weaknesses at the heart of the 2013 law.
It was a 30-year long, Sisyphean task to get the law, whose passage was accelerated by the shocking 2012 death of Indian dentist Savita Halappanavar, across the line.
The 2013 abortion act was a triumph for political cowardice and legislative minimalism. Afraid to rock the boat any further, politicians opted for the least possible reform. They ignored calls to consider the plight of expectant women with fatal foetal abnormalities whose pregnancies are not viable.
They expressly failed to provide for victims of rape and incest. They could not countenance confronting, in law, complex issues of viability thresholds, term limits and late term abortions, as other countries have done. They did not do so in part because the practical effect of the X case is that there are no upper time limits where a termination is required to save a woman's life, that risk including suicide.
Regardless of where you stand on the perennially divisive issue of abortion, clarity - real legislative clarity - is required for all. Having refused to deal with issues such as viability in legislation, the Government kicked the issue to touch in its draft guidelines which contemplate "early delivery" but place such deliveries outside the scope of the act. The guidelines state - in a footnote, of all places - that if the unborn has reached viability and the best course of action is deemed to be an early induction or caesarean section, this medical procedure would not fall under the act.
The rationale for taking early deliveries outside the act is that they are not medical procedures during which, or as a result of which, an unborn human life is ended.
Has this footnote brought in the notion of a viability threshold through the back door, just as the 1983 right-to-life referendum was intended to block abortion through the back door by judicial activism?
If there is an alternative to abortion through early delivery, should this have been specified in the act rather than buried deep in the small print of the guidelines?
There are other complex issues raised not just by this case but which may not have been sufficiently addressed in the law.
On the issue of consent, the guidelines state that, as per current medical practice, "it will always be a matter for the patient to decide if she wishes to proceed with a medical procedure under this act".
What if she is refused? What if she cannot proceed with her desired medical procedure? What is the status of her consent, competencies, autonomy and bodily integrity if she opts to go on hunger strike or end her life?
How real and valid is her consent if she "agrees" to an early delivery when experiencing great distress? How effective is our limited law if vulnerable women cannot access it in a timely manner?
When the 2013 act was passed, politicians breathed a sigh of relief that they had done what the Supreme Court has excoriated them since 1992 for failing to do: legislate.
But an ambiguous, ineffective law is no law at all.
Once again, it is vulnerable young women who do not have the safety valve of travel or other means, who are paying the price for our political cowardice. And with international pressure still bearing down on Ireland, this is one socio-political nightmare that shows no sign of ending.
Wednesday 20 August 2014
Abortion law offers escape to rich and a dead end to poor
By Colette Browne
(Picture posed.Thinkstock Images)
Middle-aged and elderly voters are responsible for Ireland's restrictive abortion law - it's time a new generation had a say.
Since Ireland first inserted the 1983 amendment into the Constitution, equating a woman's right to life with that of a foetus, voters have had a number of opportunities to make the law more restrictive. We have never had an opportunity to liberalise it.
The choice, if you could call it that, has only ever veered from endorsing an absolute abortion ban to allowing it in very limited circumstances to save a woman's life.
Consequently, nobody who can actually bear children in Ireland today - nobody under the age of 49 - has had any real say over our draconian abortion regime.
Instead, women's reproductive choices have been controlled, for more than 30 years, by Catholic dogma reincarnated as law.
This has remained the case despite the fact that Ireland in the 21st Century bears no resemblance to the theocratic state that first introduced an abortion ban all those years ago - a state in which divorce was illegal and homosexual acts were outlawed.
Still, while those religious artefacts in the Constitution were gradually excised over time, our abortion law has remained immutable, a perfectly preserved relic.
It's time for that to change.
The law, as it's currently constituted, is not equitable and it's not fair.
It offers an escape route to the rich and a dead end to the poor.
Its defenders say that the 8th Amendment stopped the introduction of abortion on demand into Ireland.
What they refuse to recognise is that we have de facto abortion on demand - for everyone who can afford it.
The others, without the money or the capacity to travel, are served up as sacrificial victims to the State's sanctimonious moralising.
Our perverse obsession with women's wombs is such that the law seems incapable of treating even a suicidal teenage rape victim with a modicum of empathy.
The details of the case of the young asylum seeker, suicidal at the thought of giving birth to her rapist's baby, which came to light this week are distressing.
It is an indictment of a heartless law whose only function is the criminalisation and stigmatisation of vulnerable women by a pious State too craven to face up to its own responsibilities to 50pc of its citizens.
But your reaction should not just be one of pity, you should be angry too - angry that, 22 years after the X Case, it can happen again.
Health Minister Leo Varadkar has cautioned against using the case as "a political cause".
But how can it be anything other than political when the State effectively asserts ownership rights over women's bodies once they become pregnant?
How could it be anything other than political when the only way to ensure that a similar tragedy is not repeated is to change the law and accept that the cost of maintaining the fiction of an abortion-free Ireland is too high?
The fact is that this woman, who suffered so terribly after she fled to this country seeking asylum, could yet be deported.
And, if she had opted to have the child willingly, instead of being coerced into a C-Section, the likelihood is that the child would be deported with her.
And therein lies the problem - Ireland, for all of its pro-life rhetoric and constitutional protection for the unborn, doesn't care much what happens to children once they are born.
The State's illusory veneer of moral rectitude on this issue has crumbled in dust after 30 years.
If we really cared about women, we would demand that the law treated them with equanimity and empathy.
It's time that those whose bodies the State seeks to police finally had a say in their treatment. We need a referendum.
Wednesday 20 August 2014
Psychiatrist says abortion law can be improved by amendment
HSE to publish terms of reference for review into care of woman who sought termination
The terms of reference for the report into the treatment of the woman who sought an abortion are to be published today.
Consultant psychiatrist and former TD Dr Moosajee Bhamjee has warned that another controversial abortion case could happen at any time and has called on the Government to amend the existing legislation.
He said a fresh referendum on abortion was not a good idea. Dr Bhamjee works in private practice in Ennis and Galway having retired from the HSE in 2011.
He served one term as a Labour deputy for Clare in the 1990s.
“This could happen again next month, next week,” he said, referring to the case of the young woman who was refused an abortion and later had her pregnancy delivered by Caesarian section.
He said the Protection of Life During Pregnancy Act could be improved through amendments.
“I think the legislation could be amended without going to a referendum. Once we go to a referendum you get so many multiple views that you end up with a mess,” he said.
“The Government should look at amending the legislation rather than looking at going to a referendum. It causes too much controversy and conflict within society.”
Earlier Minister for Foreign Affairs Charlie Flanagan said he did not believe there was an appetite for a further referendum to remove the 8th amendment to the Constitution in relation to abortion.
Concerns for the psychological welfare of the young woman at the centre of the latest abortion controversy were brought to the HSE at the end of May, two months earlier than has been reported, it is understood.
The young woman, who was 16 weeks pregnant at the time, attempted to take her own life at that point, she has said.
Her pregnancy was delivered by Caesarean section earlier this month, at 25 weeks gestation. She was suicidal and says she had been refused a termination under the new abortion legislation.
Speaking today, the Minister said he agreed with Minister for Health Leo Varadkar’s direction to the HSE to seek a full report “to assemble all of the facts” in relation to the particular case.
He said he understood the HSE would have a report “sometime in September”.
The terms of reference for the review are expected to be published today.
“I believe time to be of the essence here. It’s absolutely essential that we have this report on the fact as quickly as possible. I see no reason why we can’t have this in a couple of weeks and I do believe it’s essential that the cabinet is fully briefed by Minister [for Health Leo] Varadkar in September.”
Mr Flanagan said there seemed to be “a conflict as to the engagement of members of the medical profession with the level of treatment” and with the timelines in the case.
“I believe before we do anything it’s important that the facts be assembled and the facts be disclosed.”
Speaking on RTÉ’s Today with Sean O’Rourke programme, Mr Flanagan was asked about the possibility that the report might suggest that the Protection of Life During Pregnancy Act should be revisited in some way.
“Well, there is a suggestion that the Act isn’t working. However, I think before we can be conclusive on that or before we can form an opinion on that, we need to be apprised fully of the facts and the circumstances,” he said.
“ . . . I think it’s important that the review mechanism under the Act be allowed take place if the current case means bringing that forward a few months then so be it.”
On the question of a referendum to remove the 8th amendment provision on abortion, he said: “There doesn’t appear to be an appetite for a further referendum. However, it’s important that the Government does address the issue in the context of the facts of this particularly harrowing case, so early into the operation of the legislation.”
He was “not satisfied” that deleting the provision was the way forward “because the consequences of that will have to be weighed up in a way that perhaps they haven’t been to date”.
“So I’m not going down the referendum road. What I am anxious to do is that we see the operation of this Act, which is only a year in operation -in fact it’s much less than a year in operation - that we have a look at the workings of the Act in the context of what has happened in recent months which is a matter of some concern, I might add.”
The young woman in the case says she was pregnant as a result of rape before she came to the country and first asked for an abortion when she was eight weeks and four days pregnant, at the beginning of April. She was referred to the Irish Family Planning Association (IFPA) for counselling.
When told that the cost of travelling for an abortion could be as high as €1,500 at an IFPA counselling session in late May, she said she would rather die than continue with the pregnancy. The Irish Times understands she was then referred to a HSE staff member.
The revelation raises new questions about the HSE’s role in her care and why she was not referred at this stage to a GP, who could then refer her on to a psychiatrist under the terms of the Protection of Life During Pregnancy Act. The Act did not come into play in her case until July, when she attended a GP and was then referred to a psychiatrist.
A panel of two psychiatrists and one obstetrician was convened and it was agreed that she was suicidal and that the pregnancy should be ended. The care she received is now to be reviewed by the HSE.
The care she received from the time she found out she was pregnant in early April until the time she was delivered this month will be investigated.
Both the IFPA and the Department of Justice say they will co-operate fully with the investigation.
The HSE, when asked yesterday about the case being brought to its attention in May, reiterated that its director general had requested a report be completed for him that seeks to establish the full facts surrounding the case. “We will not be in a position to comment until these facts are established,” a spokeswoman said
The IFPA will not comment on the young woman’s case, citing client confidentiality. However, its chief executive, Niall Behan, said the association always did “all we possibly can” to assist women in crisis pregnancy.
Tuesday 19 August 2014
160,000 reasons to take action on abortion
‘Constitu tional provisions on abortion are just the detritus of the ecstatic picnic of theocracy’s final fling’
“There will be referendums next year, and one of them should be to remove abortion from the Constitution and put it where it should be – into the ordinary Irish reality where most of us live.”
By Fintan O'Toole
If you’re reading this on a train or a bus, have a look around you. There is every chance that you will see a woman who has had an abortion. It might be that sharply dressed middle-aged lady. It might be the sweet granny taking her grandkids to the zoo. It might be the student going over her lecture notes.
At least 160,000 Irish women have had abortions abroad since 1980. That’s close to one in 10 of the female population aged between 14 and 64. These women are our mothers, sisters, daughters, friends, neighbours. Yet abortion is part of official discourse only when a new atrocity breaks the surface of a deep silence.
It takes some grotesque tormenting of a woman – such as the latest case in which a suicidal woman was forced by court order to continue a pregnancy that resulted from rape – for an everyday reality to be acknowledged.
That reality is plain: Irish women have abortions and Irish people are OK with it. They agree that women should be free to have abortions in England under a very wide set of criteria. In 1992, when there was a referendum on the right to travel outside the State to have an abortion, Youth Defence spelt out very clearly what this meant from an anti-abortion perspective: “The word ‘travel’ is being used by cowardly politicians and others as a cover-up for the violent and vicious killing of defenceless Irish babies by English doctors.” If you believe that abortion is murder, this was the truth. The Irish people voted for it nonetheless, by 62 per cent to 38 per cent. This made it abundantly clear that, for all the rhetoric and all the silences, most Irish people, even then, did not actually believe in banning abortion.
Regime does not reflect public opinion
Even in relation to abortions within Ireland, it is clear the current, punitively restrictive regime does not reflect public opinion. In an Irish Times poll in June 2013 81 per cent said abortion should be allowed in cases of rape or abuse, with just 10 per cent saying it should not. Asked whether abortion should be permitted if the foetus is not capable of surviving outside the womb, 83 per cent said it should, with 8 per cent saying it should not.
And yet, we somehow end up imposing in the most cruel way the views of a small rump of the population on abused and suicidal women. There’s a lot of talk about the tyranny of majorities but this is a clear case of the tyranny of a small minority. For all the lazy talk of abortion as a “divisive” issue, the truth is that the vast bulk of public opinion is on one side of the divide – the side that wants the law to allow women in awful circumstances to make their own choices.
The real division, in fact, is between most Irish people on the one side and the political and legal regime on the other. It exists because, when it comes to abortion, we are almost literally living in the past.
This whole mess goes back to a very specific moment in Irish history – the last stand of theocratic Catholicism. For a short period in the late 1970s and early 1980s, it seemed possible to the Catholic hierarchy and to militant lay Catholics that the old regime of church control of legislation on family, sexuality and reproduction could be preserved.
This was not primarily about abortion – contraception, divorce and homosexuality were much more pertinent questions at the time. But abortion was seen, correctly, as what the Christian right in the US would call a “wedge issue” – a cultural and emotional redoubt behind which conservatives could rally.
This attempted counter-revolution is the one and only reason why abortion is in the Constitution. And it wasn’t even a successful counter-revolution. It had some temporary success in galvanising conservative Ireland for a last stand. But it did absolutely nothing to stop abortions – there were 3,650 in 1982 before the anti-abortion amendment to the Constitution and 3,946 in 1984 after it.
And it failed in its larger goals of stopping reforms on contraception, homosexuality and (eventually) divorce. The constitutional provisions on abortion are just the tattered vestiges of an old disappointment, the beer cans and torn ponchos left on the sodden field the day after a festival of self-righteousness, the detritus of the ecstatic picnic of theocracy’s final fling.
It is one thing to torture women for a coherent principle, backed up by a deep moral consensus. (Not a good thing, of course, but at least a serious thing.) But it is outrageous to break the will of already vulnerable women on the rack of a long-discarded ideology.
There’s something sick in a system where the horrific reality of forced pregnancy matters less than the preservation of what amount to constitutional catchphrases with as much relevance to contemporary Ireland as Maoist slogans have in today’s China.
This tyranny of an old failure has to stop. There will be referendums next year, and one of them should be to remove abortion from the Constitution and put it where it should be – into the ordinary Irish reality where most of us live.