Hiding from the court of public opinion
Challenging Ireland’s abortion ban in the European Court of Human Rights is a poor substitute for political debate.
Ireland’s abortion laws could be overturned in the next nine months after a landmark European court hearing held in December. The complainants, three women living in Ireland, claim Ireland’s abortion ban violates the European Convention on Human Rights, to which Ireland is a signatory. The Republic of Ireland’s constitution asserts the country’s sovereign right to protect ‘the life of the unborn’.
The case came to court just two months after Ireland approved the European Union’s Lisbon Treaty, following guarantees that Ireland’s anti-abortion constitution would remain unaffected. The court, which is not a part of the EU, deliberates on human rights issues among all 47 member states of the Council of Europe.
It’s true that Ireland has some of the most proscriptive abortion laws in Europe – only Malta has a more forthright ban – and while, in theory, abortion is possible in Ireland, no doctor will perform one for fear of ending up in court. However, taking Ireland to court is a rather poor alternative to having an open argument in the court of public opinion.
Irish anti-abortion activists such as the Society to Protect Unborn Children and Youth Defence are vociferous and active in the campaign to ban abortion – in a country that already bans it. The fact that Ireland remains an anti-abortion stronghold doesn’t seem to have dampened the enthusiasm of these campaigners, but it has almost totally killed off any pro-choice demands in the public sphere.
Instead of arguing to change public opinion, the pro-choice lobby has been reduced to trying to circumvent it using the courts. This retreat from making an open argument began in 1983 when pro-choice campaigners were roundly drubbed in a referendum on abortion. But it really took off in earnest in the 1990s when activists found a potential legal loophole to exploit in the so-called ‘X Case’.
Trying to force abortion on Ireland through ‘lawyering-up’ will never lead to a clear victory. For a start, any decision forced on the Irish state will be subject to an endless litany of legal challenges. In the US a legal precedent for abortion was set by the Roe vs Wade case in 1973 and while it is true that the case resulted in abortion being asserted as a ‘fundamental right’, it also launched the endless to-ing and fro-ing over the composition of the Supreme Court: liberals and conservatives are constantly jockeying for positions on the bench in order to ensure that their views on the matter prevail.
More broadly, defining abortion as an issue for the courts, particularly a court dedicated to ‘human rights’, underscores a ‘victimological’ view of the issue.
In the Irish case of Attorney General vs X in 1992, a 14-year-old girl, who had become pregnant after being raped, was sequestered by the state in order to stop her travelling to Britain to have an abortion. The case was furiously debated both in and out of court, as befits such an important issue, but the outcome was mixed. The case did establish the right of Irish women to an abortion if their life was at risk because of pregnancy – significantly including the risk of suicide, the reason most often provided as a legal fiction in order to obtain an abortion in Britain.
Still, this proved less than satisfactory for Irish women – abortion is still effectively illegal and, more significantly, is now only ever debated in terms of outlying and extreme cases, such as pregnancy resulting from rape, fetuses with severe genetic abnormalities, and the likelihood of the pregnant woman killing herself.
The fact that this promotion of the ‘woman-as-victim’ narrative is an unproductive area seems to have escaped many pro-choice campaigners. As victimhood is enshrined in the very way the European Court of Human Rights works, this means it is possible that the ongoing case may result in a judgement in favour of the complainants. What it will not do, however, is settle the issue of abortion. That would require a strong argument based on individual rights – exactly what so many Irish liberals wish to see legislated to within an inch of their lives by undemocratic pan-European institutions. Having long ago given up on attempting to move the country forward by persuading people of the validity of their arguments, Irish liberals now see social change as something dictated from the top down rather than argued for from the bottom up. This is why we never today hear the old feminist slogan of ‘free abortion on demand’.
In fact, the weak Irish argument for legalising abortion as a means of offsetting perceived psychological oppression chimes perfectly with an era which can be characterised as ‘suffering’ an unhealthy anxiety about sex.
During the 1970s and 1980s Irish radicals rightly lambasted the Catholic Church for its moralising and hypocrisy. Today these very same people, now themselves part of the Irish Times-reading establishment, continue to point out the mote in the eye of an increasingly irrelevant Church while ignoring the entire sawmill’s worth of dust in their own.
Recent developments suggest that Ireland is singularly incapable of coming to terms with abortion for one simple reason: despite its modernisation, the country still cannot cope with sex, preferring to obsess over its ‘dark side’ than the millions of normal sexual encounters that go on. The entire nation appears to be mired in a neverending series of sexual abuse-related scandals, all of which are centred on not the relatively straightforward fact that crimes have been committed (which they have) but a disturbing obsession with victimology.
The release of the Ryan and Murphy Reports into clerical sex abuse have been followed by more than just the predictable wailing and gnashing of teeth. Ireland is currently undergoing a full-blown moral panic – but it’s not being driven by the country’s (moribund) Catholic conservatism. The Catholic hierarchy was itself quick to jump on the victim bandwagon: Donal Murray, the Bishop of Limerick who was effectively forced to resign as a result of his failure to deal with allegations of sexual abuse in the Church, wallowed in his own self-perceived victimhood as he announced his resignation.
Last week a furore erupted when 50 people showed up in court to ‘express solidarity’ with a man convicted of sexual assault (1). Speaking on RTÉ Radio One’s Marian Finucane Show, one of the country’s premier current affairs discussion programmes, one commentator actually said that young men must be educated so that they don’t rape women: ‘My first reaction is one of a parent, you know, the responsibility we have to remind our sons that, you know, a moment’s sexual gratification leaves a lifetime of horror with the victim.’ (2)
Most recently there has been the announcement that Liam Adams, the brother of Sinn Féin leader Gerry Adams, is being sought for alleged sexual abuse of his daughter. Gerry Adams responded to this by not only announcing his support for his niece (as would be expected), but by revealing that his own late father was allegedly guilty of a litany of crimes including sexual abuse of thus far unspecified siblings.
Ireland has never had a particularly healthy relationship with sex – for example, condoms were effectively illegal until 1993, the same year Ireland was finally forced to repeal its laws criminalising homosexuality. But instead of these changes ushering in an era of social liberalism, Ireland skipped directly from ancient conservative Catholic moralising to postmodern anxiety, one driven, ironically, by liberal prejudice about the dangers of sexual activity.
In these circumstances, the chances of having a grown-up debate about abortion are close to nil. Today, abortion is no longer debated in terms of either a woman’s right to choose or the fetus’s right to life, the two traditional positions on the issue. Instead, the argument, like all that can be viewed through the prurient prism of sex, is now centred on competing claims of victimhood: who is the most oppressed? The pregnant woman or the fetus?
Ireland’s sex wars are set to run and run but the one thing we won’t hear is the simple truth: most sexual activity is totally unrelated to the abnormalities we have heard of in recent months – sex may require two people but that doesn’t mean one is an oppressor and the other a victim. Likewise, abortion will continue to make the headlines but fewer voices than ever will make a straightforward rights-based argument, preferring instead to talk of the psychological impact of unwanted pregnancies or regretted abortions – neither of which are relevant.
Jason Walsh is a journalist based in Dublin. He is the editor of forth, a new online current affairs magazine.
Listowel: convictions should be hard, Jason Walsh, forth, 19 December 2009
Gavin Duffy speaking on the Marian Finucane programme, RTÉ Radio One, 20 December 2009