In January 2019, state-sponsored abortion services became available in Ireland. The Health (Regulation of Termination of Pregnancy) Act 2018 (hereafter, the ‘2018 Act’), provides that ‘termination of pregnancy’ is available on demand in the first 12 weeks of pregnancy. The Act defines ‘termination of pregnancy’ as ‘a medical procedure which is intended to end the life of a foetus’, rather than a procedure or treatment to end pregnancy.
It is available also up to an undefined time of ‘viability’ in cases of risk to the woman’s life or health (including mental health) where two doctors deem it an ‘appropriate’ means to avert the risk. In an emergency, where two doctors consider it necessary to avert a risk to a woman’s life or health, the procedure can be carried out at any point up to birth. Similarly, if a pre-born baby has a condition which is likely to lead to its death before or within 28 days of birth, there is no time limit for the procedure.
These changes to the law were made notwithstanding the duty of doctors in Ireland to practise ‘evidence-based’ medicine. Although abortion is legal in nearly every European jurisdiction, an evidence base is lacking for the proposition that abortion (as distinct from termination of pregnancy and delivery of the baby) is necessary to avert a risk to the life of a pregnant woman. Nor is there evidence that intentional termination of the life of the pre-born baby is necessary or appropriate for treatment of cancer in the mother, or that it confers any maternal survival benefit.
The Irish people choose abortion
In other jurisdictions, abortion was made lawful by courts or politicians. In a constitutional referendum held on 25 May 2018, the Irish people themselves decided to remove the constitutional protection of the pre-born baby (the 8th Amendment) and to empower the Irish parliament to regulate termination of pregnancies.
On a turnout of 64.13% of the electorate, 66.4% voted to approve repeal of the 8th Amendment. This was the highest turnout of voters for any constitutional referendum, exceeding even the 60.52% who came out in 2015 to vote on same-sex marriage (which was approved by a majority of 62.07%).
The people’s decision to ‘Repeal the Eighth’ marks a spectacular reversal of public opinion. In 1983, on a turnout of 53.67% of the electorate, 66.9% approved the 8th amendment to the Irish Constitution. This inserted a new provision into the Constitution that acknowledged the right to life of the pre-born baby and undertook to respect, and, ‘as far as practicable’, to ‘defend and vindicate’ that right. It stated explicitly that due regard had to be given to the equal right to life of the mother.
Ireland’s excellence in obstetric care
Although a contrary impression has been given by national and international media, pregnant women in Ireland have generally received the highest standard of care. The World Health Organisation has recognised this over many decades.
Ireland without abortion had consistently better maternal mortality and morbidity rates than most countries where abortion is available. The law and the Medical Council’s Guide to Professional Conduct and Ethics permitted termination of pregnancy where there was a real and substantial (not necessarily imminent) risk to the life of a pregnant woman which could not otherwise be averted. Doctors acted in the interest of both patients: the woman and her pre-born baby. This meant that where the medical margins of safety would allow, doctors acted to prolong pregnancy in the baby’s interest. If the baby reached a gestation where survival might be possible, every effort would be made to optimise that survival.
While it was permissible to terminate pregnancy to save a mother’s life and a baby’s life might be lost, it was never permissible to deliberately kill the baby. Women in Ireland have been and continue to be entitled to receive necessary medical treatment for any condition or complication they may suffer during pregnancy, including cancer.
Of course, cases of negligent medical care occur and questions regarding the clinical management of patients may require judicial resolution. These cases happen in Ireland as they do elsewhere, and in obstetric as in other areas of medical practice. Notwithstanding these cases, the President of the Institute of Obstetricians and Gynaecologists in Ireland and the Masters of the National Maternity Hospital and the Rotunda Hospital in Dublin told the parliamentary Committee on Health and Children in 2013 that they were not aware of any situation in which a lack of legal clarity prevented appropriate care and said that they had never withheld appropriate treatment for a woman.
These sentiments were reiterated in 2018 during the campaign regarding the 8th Amendment. Dr. Eamon McGuinness, former Chairman of the Institute of Obstetricians and Gynaecologists, wrote:
The Eighth Amendment has one medical effect only: it prevents Irish doctors from deliberately, as an elective matter, causing the death of an unborn child. It awards to the child in the womb the right to have their life protected in Irish hospitals, in Irish GP [general medical practitioner] surgeries, and in Irish operating theatres.
Reassurance was provided by another consultant obstetrician, Dr. Mary Holohan, that ‘Ireland’s law fully provides for the small number of cases relating to necessary obstetric interventions …. We have the scope of practice needed to guarantee best international standards of care to women in pregnancy.’
In the 35 years since the 8th Amendment, there were a number of cases around which pro-choice activists built a successful narrative that pregnant women were dying because of the unavailability of abortion. They asserted that the 8th Amendment restricted obstetric care. On close examination, none of these cases support this contention. Two cases in particular lit a touchpaper for change in public opinion. These were the case of X v Ireland in 1992 (‘the X case’) and the tragic death of Savita Halappanavar in 2012.
X v Ireland
The X case concerned a 14-year-old girl, Miss X, who was pregnant as a result of rape. She travelled with her parents to England to have an abortion. Prior to leaving Ireland, her parents sought advice from the Irish authorities in relation to scientific testing of the foetus to establish paternity in a criminal prosecution for rape.
The Attorney General applied to the High Court for an injunction preventing Miss X from travelling to England for an abortion. A psychologist gave evidence that she might commit suicide if she was refused an abortion. The High Court issued an injunction preventing her from leaving Ireland and from arranging the procedure.
Although they were already in England making these arrangements, the family returned to Ireland when they learned of the injunction. The case was appealed to the Irish Supreme Court. It decided (in the absence of psychiatric evidence, and on the basis of a concession by the Attorney General) that her threat of suicide because of her pregnancy was a risk to Miss X’s life which could only be avoided by termination of pregnancy, and that termination was lawful in these circumstances.
The court directed that Miss X should not be prevented from leaving the country. It was reported subsequently that she did not have an abortion but suffered a miscarriage in an English hospital.
Opening the floodgates
After the X case, the pro-life movement in Ireland feared that allowing abortion for suicide or mental health reasons would ‘open the floodgates’. Abortions performed in the UK for risk of injury to a woman’s physical or mental health have consistently accounted for over 97% of all abortions. (In 2017, 98% of abortions in the UK —England and Wales — were performed on this basis; 99.5% of those abortions were done because of risk to the woman’s mental health.)
In a referendum in 1992 however, the people rejected an amendment which would have excluded the risk of suicide as a basis for lawful termination of pregnancy. (Pro-life and Catholic advocates had also called for a ‘No’ vote because of the flawed wording of the proposal.) They approved amendments that provided that the 8th Amendment would not limit freedom to travel to another state, and to allow freedom of access in Ireland to information about services lawfully available elsewhere. Thus, where termination of pregnancy had been available where it was necessary to avoid a physical risk to the woman’s life, it was now available, at least in theory, where there was a risk of her suicide.
A referendum in 2002 offered the renewed possibility of removing the threat of suicide as a basis for legal abortion. This was supported by the government and by the Catholic Church. A minority among pro-life voters considered that the proposed wording might inadvertently remove protection from the embryo prior to implantation. Post referendum analysis suggests that this minority was sufficient to tip the balance in favour of defeat of the referendum proposal. On a turnout of 42.89%, it was rejected by 50.42% of voters.
Savita Halappanavar died in October 2012 while under hospital care for inevitable miscarriage. Five days before she died, Mrs. Halappanavar’s request for a termination of pregnancy had been denied on the grounds that her miscarriage appeared to be progressing normally and her foetus was still alive.
Three official and independent enquiries found that her death resulted from sepsis and poor miscarriage management. Official investigators acknowledged that ‘clinical circumstances can and have arisen in Ireland where a termination of pregnancy is an appropriate and necessary clinical step in the medical treatment and care of a patient.’ They said that appropriate monitoring and evaluation ‘would likely have lead [sic] to reconsideration of the need to expedite delivery’, which ‘would likely have helped to prevent rapid deterioration of the patient’.
These acknowledgements and findings have been almost excised from public consciousness. The announcement in the Irish Times newspaper that ‘Woman ‘denied a termination’ dies in hospital’ alerted pro-choice activists immediately to the potential of her death to win support for the campaign to repeal the 8th Amendment. It triggered an outpouring of public mourning that was reported by media from Ireland to India. The haunting image of Savita and the suggestion that an abortion was necessary to save her life hugely influenced public debate and fuelled the growing public appetite for some measure of abortion.
In 2013, the Protection of Life During Pregnancy Act became law. Its stated intention was to legislate for the decision of the Supreme Court in the X case in 1992. It provided that where a pregnant woman’s life was at risk, including by her own threat of suicide which could not be otherwise averted, termination of pregnancy was permitted. It prohibited the intentional destruction of the pre-born baby. This did not satisfy the pro-choice lobby, but a broader abortion law was not possible while the 8th Amendment remained.
‘Dripping water hollows out stone’ (Ovid)
After Mrs. Halappanavar’s death, the campaign for a referendum to ‘Repeal the 8th’ intensified, focusing initially on abortion for ‘hard’ cases, like rape and ‘fatal foetal abnormality’. Money poured in to Irish campaigning bodies from organisations overseas, including Soros’ Open Society Foundations. Prominent obstetricians campaigned, (including some who had said in 2013 that the law had not prevented appropriate obstetric care) complaining that the law had a ‘chilling effect’ on their clinical practice. Feminist academic lawyers increased their efforts for Repeal. Wearers of ‘Repeal’ clothing and costumes from Atwood’s dystopian novel, The Handmaid’s Tale, became visible advocates for the pro-choice cause.
By 2018, all political parties and political leaders supported and campaigned for the Repeal of the 8th. These included the Taoiseach (Prime Minister), the Minister for Health and the Minister for Children. The Repeal campaign relied largely on personal stories and feelings to garner support. Prominent obstetricians, including the President of the Institute of Obstetricians and Gynaecologists pronounced the law unworkable. Only a handful of colleagues, most of whom had retired, spoke against them.
Cases which had nothing to do with the 8th Amendment or with abortion became part of the Repeal campaign’s narrative. The campaign was reinforced by blanket support in the mainstream media. A pro-life campaign across social media was scuppered weeks from polling day by advertising bans imposed by Facebook and Google. The Irish Times newspaper reported that these bans were instigated by pressure from government circles.
Misinformation, false analysis and euphemism were used to persuade the Irish that abortion is ‘healthcare’ and the pre-born baby is a ‘choice’. A member of parliament (a pharmacist and a mother) insisted that a pregnant woman was “not carrying a life”, she was “carrying a pregnancy”, and that “there is no baby anywhere being terminated” in the abortion legislation. The Minister for Health promised that his legislation would prohibit abortion for disability (it does not) and late term abortions (certain abortions can take place throughout pregnancy).
All pro-life amendments proposed to the abortion legislation were rejected, even those which the public might conceivably support. These include amendments which would require that the baby be administered pain relief prior to the abortion, which would have prohibited abortion for disability or gender selection, which would have prohibited the sale of foetal tissue and which would have required dignified burial of foetal remains following surgical abortion rather than disposal as waste.
While the Irish legislature has refused to give these protections to the pre-born baby, it has been more generous in the case of animals. Section 17(1) of the Animal Health and Welfare Act 2013 provides that no operation or procedure, with or without instruments, can be carried out on an animal ‘without the use of an appropriate anaesthetic or analgesic administered so as to prevent or relieve any pain during or arising from the operation or procedure.’ As for the proposal that the abortion legislation provide for the dignified burial of foetal remains, the Health Service Executive (HSE) advises on its website that pre-born babies who are aborted before nine weeks of pregnancy can ‘be flushed down the toilet or wrapped in tissue and disposed of’ as the woman wishes.
Following the passage of the 2018 Act, members of the Institute of Obstetricians and Gynaecologists (the Institute), working on guidelines to implement the abortion service, spoke euphemistically of the need for feticide prior to medical abortion to ensure that babies “are born sleeping”. (Medical abortions are drug-induced and can result in live births. Surgical abortions, of their nature, destroy the foetus.)
In January 2019, the Institute issued an Interim Clinical Guidance; Pathway for the management of fatal fetal anomalies (FFA) and/or life-limiting conditions (LLC) diagnosed during pregnancy. This Guidance advises that feticide may be performed before medical termination for FFA/LLC, including cases where the foetal anomaly is not immediately lethal, after 21 weeks and 6 days of gestation to ensure that there is no chance of a live birth.
Permitting abortion as in the 2018 Act, where a pre-born baby has a condition which is likely to lead to its death before or within 28 days of birth, presents clinicians with significant difficulty. The international medical literature indicates that there is no consensus on what constitutes ‘lethal foetal or congenital malformation’, and no agreed list of conditions that might fit this description. The abnormalities most commonly described as lethal are not actually lethal in the strict sense, i.e. they do not invariably cause death in utero or in the new-born period regardless of attempted supportive treatment.
The Medical Council, which regulates the practice of medicine in Ireland, is currently revising its Guide to Professional Conduct and Ethics for Doctors. The revised Guide will reflect the new legal landscape.
The destruction of innocents
Since abortion services commenced in Ireland on 1 January 2019, reports indicate that 800-900 abortions are being carried out each month. Even allowing for reports of the number of abortion pills previously bought online and the reduction in the number of Irish women travelling to England for abortions, this suggests an almost trebling of Ireland’s abortion rate to over 11,000 abortions in one year.
One of the capital’s maternity hospitals has predicted an annual rate of 10,000 abortions. It is estimated that 80% of these will be carried out medically (with abortion pills) in the first nine weeks of pregnancy, general medical practitioners (GPs) being the primary service providers. Women in Ireland do not have to pay for this service. GPs are reimbursed €450 per abortion, which includes three appointments, and pre- and post-care. They are paid €250 by the Health Service Executive to give free antenatal care to a woman for the duration of her pregnancy, which could involve 12 visits.
Where pregnancies are more advanced than nine weeks gestation, abortions must be carried out in hospital. The obligation on hospitals to provide abortion has an impact on the availability of theatre and gynaecology services. Because of time constraints to comply with the law, elective abortions may be prioritised over these services.
An abortion carried out at the National Maternity Hospital in March 2019 is being reviewed by the UK’s Royal College of Obstetricians and Gynaecologists. In this case an initial test for foetal anomaly indicated that the baby had Edward’s Syndrome, or Trisomy 18. The parents have said that they were advised that it was unnecessary to await the results of a second test and that there was “no hope”. They agreed to an abortion, which was carried out at over 15 weeks gestation. They learned after reading the second test results that their baby was healthy.
Although provision is made in the 2018 Act for the right of doctors, nurses and midwives to conscientiously object to participation in abortion, this right is not extended to pharmacists or to medical or nursing students. A conscientiously objecting doctor must refer a woman who wants an abortion to a colleague who will provide this service.
It seems that the right to conscientiously object to participation in abortion services may be of little use for doctors who wish to apply for posts at publicly funded maternity hospitals. In February 2019, the National Maternity Hospital in Dublin advertised positions for a consultant anaesthetist and a consultant in obstetrics and gynaecology. The advertisement stated that candidates must be able to carry out patient duties along with teaching, administration and management duties ‘which as of 2019 includes elective terminations of pregnancy services and the post-holders will be expected to contribute to this new service as part of their practice plan’.
The hospital stated that these positions are to be funded specifically from a financial allocation by the HSE to the hospital for the ‘provision of termination-of-pregnancy services and are for individuals willing to contribute to the provision of these services’. As hospitals are legally obliged to make these services available, it is likely that future advertisements will make similar stipulations.
A church of pagans?
In a country where 78.8% of the population identify as Catholic (Census 2016) and weekly Mass attendance is high by European standards, the decision to remove the right to life of the pre-born baby from the Constitution in order to enable abortion is confusing. Among other things, it points to a failure of the Catholic Church in Ireland over several decades to impart to and/or convince even its own congregations of its teachings on the sanctity of life.
Writing in Catholic World Report in June 2018, Russell E. Saltzman recalled a 1958 lecture titled “The New Pagans and the Church” in which Joseph Ratzinger stated that the Church ‘is no longer, as she once was, a Church composed of pagans who have become Christians, but a Church of pagans, who still call themselves Christians, but actually have become pagans.” Saltzman observed that the pagans in Ireland have reached a 66% critical mass and that default paganism has become the norm governing life for many, if not most, people in Ireland today.
If this is a default rather than a considered position, one may only hope that the realities of abortion will, in time, encourage people to reprise the traditional precepts.