Abortion: make the case in public, not in court

Following the Savita tragedy, Irish pro-choice activists should be engaging with the public, not cosying up to judges.

Jason Walsh

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Topics Politics

The inquest into the case of Savita Halappanavar – who died in a Galway hospital last October following doctors’ refusal to perform an emergency abortion – found that her death was caused by medical misadventure. The verdict left Ireland’s debate about abortion wide open. But isn’t it time to look beyond tragic and outlying cases like Halappanavar’s?

Apparently unrelatedly, the Irish government is this week set to announce a new law permitting abortion, albeit in extreme circumstances. Anti-abortion activists are furious. They needn’t bother worrying; the law will be a joke.

Necessitated by a 1992 Irish Supreme Court decision, and underscored by last year’s European Court of Human Rights (ECHR) judgement that Ireland’s stance on abortion is unclear, the proposed new law will seek to allow terminations, but only where a pregnant woman’s life is at risk. Controversially, the 1992 judgement means the threat to commit suicide will be included as a threat to life.

It was revealed this week in the Irish Sunday Times that in order to qualify for an abortion, a woman claiming suicide ideation must first see six consultants: two obstetricians and four psychiatrists, one of whom must be a perinatal psychiatrist, of which there are three in the entire country. Speaking on Monday, the minister for health, James Reilly, denied this was the case, but either way, this new law will not change much.

Anti-abortion campaigners claim that any inclusion of a suicide clause will eventually allow for abortion on demand, citing examples including the legal fiction of mental-health difficulties used to allow for abortion under Britain’s technically onerous 1967 Abortion Act. They have a point – or rather, they would, were it not for one hard fact: the eighth amendment to the Irish Constitution.

A result of the 1983 anti-abortion referendum, the eighth amendment means the constitution acknowledges ‘the right to life of the unborn, with due regard to the equal right to life of the mother’. Any abortion law passed without the repeal of this amendment will fall short of anything like abortion on demand, respect for individual bodily autonomy or a woman’s right to choose – however one might like to frame the point.

The arguments over the tragic death of Halappanavar have brought the issue into sharper focus. She was a 31-year-old Irish-resident Indian woman who died from septic shock last year in Galway after being denied an abortion. Coming as it did while the government was effectively frog-marched by the ECHR into finally enacting the will of the Supreme Court, Halappanavar’s death undoubtedly contributed to the forthcoming law.

But law is only one part of the picture. As convenient as it is to ignore it, morality is an essential part of the debate around abortion, and pro-choice activists should not shy away from this. It is not hard to understand why Irish choice activists have retreated into a world of piecemeal, gradualist legal arguments: since the 1980s, they have been roundly trounced by better-organised and highly emotive anti-abortion campaigners. Nonetheless, by ceding the moral ground to the various anti-abortion campaigns, pro-choice activists are not only doing their cause a disservice; they risk doing a disservice to the entire issue of abortion and choice.

Given the circumstances, any change in Irish law towards accommodating abortion, albeit only in extreme and outlying cases, will be viewed by many as a victory. But not all victories are equal. In fact, some are purely pyrrhic – and there is a grave danger that this will be the case here. What if, as is likely, the public decides that limited legislation for distressing and extreme cases is enough?

It is tempting to dismiss such complaints as ultra-leftism or trendy libertarianism. After all, whether we like it or not, in society as it is, rights are granted by, and vindicated in, juridical frameworks. Nonetheless, the hard argument must be faced. For the first time in decades, the Irish pro-choice movement has an opportunity to directly engage with the public, but if it fails to do so, it could see its goal recede into the distance once more.

The public is in broad agreement on the X case of 1992: the case’s 14-year-old girl who became pregnant – and suicidal – as a result of rape should have been allowed to have an abortion, rather than being sequestered by the state. One would have to have had a heart of stone not to feel for that girl. But that case should also serve as a warning. As with the story of Mrs Halappanavar’s death, X was genuinely shocking and tragic, and undeniably acted as a catalyst to changing public opinion. Both cases, however, are outliers. Legislation that would allow for abortion in such cases would not cover the humdrum, everyday reasons for most abortions. The moral nettle, whether for or against, must be grasped, for after the proposed new law passes into statute, 4,000 Irish women a year will continue to travel abroad to procure abortions.

The fact is that Ireland is a different country from that of 1983, but that does not mean there is widespread respect for women’s rights to control over their bodies. In fact, the sad reality is that demands for individual autonomy, for men or women, will fall on deaf ears in Ireland. Despite Ireland’s self-image as a nation of rebels and rabble-rousers, it is in fact one of the most conformist societies in Western Europe. In addition, politics here is extremely anti-ideological and it was like that long before the rest of the West collapsed into apathetic post-political mush. The only way to change this is to start making the case for women’s rights more directly and forcefully.

The Halappanavar case energised the public, not because of any appeal to reason, but because of an appeal to emotion: the death of a young woman in medical care is as shocking as any of the gruesome images anti-abortion activists can respond with. The problem is that neither will result in a settled agreement on the right to life versus the right to choose. The only thing that can do that, if it can be done at all, is reasoned argument.

The simple fact is this: whether one wants legalisation or opposes it, Ireland will not allow abortion until the eighth amendment is repealed. And that is something worth fighting for.

Jason Walsh is a journalist based in Dublin. Visit his website here.

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