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Dr Máiréad Enright, University of Kent

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Location: Warwick Law School Room S2.12

'Imagining a new Irish Abortion Law'

Thousands of Irish women travel for abortions every year, often at great personal cost. Others use pills such as misoprostol and mifepristone purchased online to induce miscarriage. Still others go through with unwanted pregnancies. The state restricts meaningful access to abortion care, by policing the activities of pregnancy counsellors and activists, by continuing to criminalise abortion (at least in principle), by seizing pills imported from abroad, and by sanctioning dangerous forms of ‘creeping foetalism’ in the medical care of pregnant women. At the same time, the state will not directly prevent women from travelling abroad to terminate a pregnancy, and indeed will provide some peripheral assistance to those women who do travel.

This basic legal position has remained largely unaltered for over 20 years, despite profound change in other areas of Irish law and society. There are a number of reasons for this. First, the usual routes to law reform - referenda, legislation, domestic litigation and recourse to the European Court of Human Rights - have almost all been channelled through the existing constitutional framing of the right to life and the right to travel in ways which have entrenched rather than disrupted or expanded the constitutional status quo. In addition, the political construction of abortion as a uniquely divisive political issue (already settled by a peculiarly austere and rigid constitutionalism which claims both to cleanse the Amendment of any connection to the brutalisation of women, and to uproot it from its uniquely dysfunctional political origins) has closed off opportunities for sustained discussion of abortion beyond that life-or-death framing. Finally, abortion has remained an ‘open secret’ to the Irish state. Systems of stigmatisation ensured that, where they could not be assimilated to the prevailing life-or-death narrative, women’s experiences of the abortion laws were readily expelled from the public sphere and discounted in legislative debate. The absence of women’s experience was starkly obvious in the parliamentary debates around the Protection of Life During Pregnancy Act 2013. Legislation designed to respond to the ECtHR decision in A, B and C v Ireland, which emphasised women’s procedural rights, was palpably skewed in a different direction. Parliamentary debates were deeply marked by concern to enshrine particular forms of medical authority in law, the better to invigilate untrustworthy suicidal women’s efforts to illegitimately access abortion within the state. The exclusion of women’s experiences allowed a certain mystification of medical practice, and enabled the perceived regulatory needs of the hospitals and the Healthcare Services Executive to be privileged over those of women availing of the new statutory scheme.

That said, it seems that 2014 may turn out to be the year in which Ireland's incoherent abortion regime finally collapses under its own weight. In this paper, I elaborate on certain shifts in Irish public discourse which have brought us to this juncture, and tentatively suggest some consequences for emerging feminist law reform campaigns.

Three important recent developments have helped to alter the political landscape around abortion in Ireland. First, in the last two years, accounts of Irish women’s experience under the abortion laws have emerged into the public sphere, either in the context of discrete campaigns for law reform or in the course of reporting of highly publicised scandals. A collective of women who terminated wanted pregnancies abroad because their foetuses were diagnosed with abnormalities ‘incompatible with life’ have organised under the slogan ‘Termination for Medical Reasons’. They have spoken about their experiences in the media, and have been active both in campaigning for a ‘fatal foetal anomaly’ exception to the prevailing abortion law and in contesting the state’s refusal to legislate in international legal fora. Praveen Halappanavar’s campaign for a proper inquiry into the treatment of his wife Savita, who died of sepsis in a Galway hospital in 2012 having been refused an abortion, provoked mass public outcry and focused attention on the treatment of migrant women within Ireland's maternity hospitals. Most recently, in the autumn of 2014, campaigners mobilised around the story of Ms Y, currently the subject of a HSE inquiry. Ms Y is the suicidal young asylum seeker who applied for an abortion under the new Protection of Life During Pregnancy Act 2013, but agreed - after long delays and under overwhelming pressure- to prematurely deliver a baby boy by Caesarean section instead. All three events exposed the cost of successive governments’ failure to grasp the consequences of the Eighth Amendment. Second, Irish feminist campaigning around abortion - particularly in its performance of solidarity with women who have had abortions for so-called ’social’ reasons - is recovering an overtly resistant (if not always unified) radical tone. This has been especially evident in the celebratory mood of the ‘March for Choice’, in the scandalous performances of 'Speaking of I.M.E.L.D.A.' and in the civil disobedience of the recent 'abortion pill train'. Third, processes of public critique of a series of past systems of state-sanctioned violence against pregnant women - the Magdalene Laundries, symphysiotomy and the Mother and Baby Homes - have enabled campaigners to trace the state’s investment in the management of women’s bodies in new and compelling ways. This much was particularly evident during Ireland’s examination before the UNHRC in July.

These developments have cast the existing law as archaic, dangerous, punitive, and hypocritical. They have generated significant public consensus around demands for a referendum to repeal the 8th Amendment. If successful, such a campaign could, at least, re-open the constitutional playing field, for the purposes of litigation and legislative reform. But the more important question now concerns the kind of abortion law which will be enabled by repeal. The Coalition to Repeal the Eighth Amendment has begun to campaign for law reform and decriminalisation towards ‘free, safe and legal abortion’. So far, the indications are that the liberal wings of the main political parties might be persuaded to legislate for additional limited grounds for access to abortion; namely rape, incest and fatal foetal abnormality. A restricted ‘health’ ground may also find public support. Such ‘liberalisation’ would do nothing for the majority of Irish women who require access to abortion, and would leave the fundamental structure of Irish abortion law essentially intact. Abortion would only be available within Ireland as a last resort in circumstances of death, violence and grief. Access to abortion would continue to be tightly policed, and guarded against profanation by dangerous, deceitful and otherwise deviant women.

In order to disrupt that structure, Irish feminist campaigns for abortion law reform will compose a different legal imaginary. First, they will articulate a sense of women as the conscientious bearers of substantive and participatory rights as well as procedural rights in the context of abortion care. In doing so, they must be attentive to the needs of those women most often left at the margins of the women’s movement; in particular, women who live under the direct control of the state. At present, the practical resources for this work are only beginning to be gathered. Many exist in what the state has rendered illegal, or at the very least, precarious barely legal or extra-legal spaces: for instance in the activities of feminist networks which support women in accessing abortions abroad or in using pills, and in the interpretive and service work of radical doctors and pregnancy counsellors. Their experiences, like those of the women they assist, have so far had little purchase in the public sphere. Second, feminists will emphasise accountability within the spaces in which the abortion law is likely to interpreted and applied - the hospitals and the systems of the Health Services Executive rather than the courts. Third, and most difficult for this emerging movement, they will advance an understanding of law as something other than a punitive and inflexible constraint on women’s actions.

Máiréad is interested in the legal regulation of culture and religion, and in particular in the effects of legal engagement with traditionally 'private' aspects of religious practice for 'public' conceptions of membership. She has a special interest in the regulation of cultural and religious membership in Ireland, especially as it relates to nationalist politics of belonging. Her recent research is concerned with the construction of 'Muslim women' as legal subjects and as citizens before the law, and in this vein Máiréad has written about forced marriage, religious dress and Islamic divorce.

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