Legislating for Article 40.3.3: Mullally on Equal Citizenship

Author: Professor Siobhán Mullally, Faculty of Law, University College Cork

At the heart of the ongoing abortion debate in Ireland is an issue that is frequently neglected, that is, women’s rights to equal citizenship. It is a right that is intimately linked to reproductive and sexual health and to the protection of reproductive autonomy.

Speaking on the publication of the Expert Group Report on the ABC judgment, Minister Alan Shatter, invoked his role as a Minister for Equality and noted that pregnant women’s right to health and to bodily integrity is one that is qualified in Irish law. Some citizens he noted are ‘more equal than others’. If, as now seems likely, legislation is finally introduced to give effect to the X case judgment, reproductive autonomy and equal citizenship for women will remain highly restricted.

In the US Supreme Court landmark 1992 judgment, Planned Parenthood v Casey, a joint opinion by Justices O’Connor, Kennedy, and Souter, addressed both the ethical questions concerning abortion regulation, as well as the specific question concerning the role of a court in adjudicating on such questions. Individual views on the morality or otherwise of abortion could not, they said, control their decision. The obligation of the court was to ‘to define the liberty of all, not to mandate our own moral code’. While they acknowledged the views of those opposed to abortion, they pointed out that the pregnant woman was ‘subject to anxieties, to physical constraints, to pain that only she must bear.’  Women’s capacity to make reproductive decisions, they recognised, was intimately linked to their ability ‘to participate equally in the economic and social life of the Nation.’

In Ireland, we continue to question women’s capacity to make such decisions, and we deny them right to do so. Those who continue to reject the right to a safe and legal abortion where the risk to a woman’s life arises from suicide, not only deny women the right to make reproductive decisions, they bring into question all women’s decision-making capacity and autonomy.

We do not in other circumstances require similarly significant sacrifices to safeguard the life of another – forced organ transplantation for example is not mandated even where the life of an infant might be saved by such a sacrifice by another. It is uniquely the pregnant woman (or girl) who is forced by our restrictive abortion laws, and the ‘chilling effect’ of criminalisation (to quote the European Court of Human Rights), to make such sacrifices, regardless of the impact on her health and well being.

If, as seems likely, this Government finally accepts the responsibility to legislate to give effect to the X case judgment, we will continue to have many gatekeepers determining the fate of pregnant women. The difficulties faced in securing access to a lawful abortion were brought into stark relief in the recent European Court of Human Rights judgment in  P and S  v Poland in October 2012. Abortion in Poland is legal only on limited grounds: when the pregnancy threatens the life or health of the pregnant woman, when there is a high risk for severe fetal impairment, and when there are strong grounds to believe that the pregnancy is the result of a criminal act. This case concerned a young woman, ‘P’, who was 14 years old when she became pregnant as a result of rape. She was denied an abortion by two hospitals and her identity and medical details were released to the media. When she and her mother sought police protection from anti-abortion activists, she was arrested and detained in a juvenile centre and investigated on suspicion of engaging in unlawful sexual intercourse. When P finally received a legal abortion 500 km from her home, following an intervention from the Ministry of Health, the medical procedure took place in a clandestine manner. P was not registered as a patient and received no post-abortion care.

In a damning judgment against Poland, the European Court of Human Rights found that “no proper regard” was given to P’s “vulnerability and young age and her own views and feelings”. She was “treated by the authorities in a deplorable manner’.  The suffering that she was forced to endure was found to constitute inhuman and degrading treatment.  This case follows the earlier 2009 judgment of the Court in the case of Tysiac v Poland, where a severely visually impaired woman was again denied access to a lawful abortion in circumstances where medical practitioners had certified that pregnancy and child-birth would pose a serious risk to her health.

In Ireland we will continue to deny access to a safe and legal abortion even in cases of rape, incest, and fetal inviability. Our laws will continue to be amongst the most restrictive abortion laws in the world. Despite Government rhetoric on the need to restore our economic sovereignty, we will continue to abdicate our responsibility to provide access to safe and legal abortion in Ireland, accepting instead a British solution – one that is sought annually by at least 4,000 Irish women and girls.

There is a plurality of opinions and views on the morality of abortion. That plurality must be recognised by the Government. Delivering judgment in the Supreme Court referral on the Abortion Information Bill, Chief Justice Hamilton argued that the religious doctrines of one particular faith could not be relied on to determine the limits of fundamental rights. Drawing on the Preamble to the Constitution, he argued that fundamental rights must be interpreted in the light of prevailing ideas of prudence, justice, and charity. A commitment to justice requires us to accept that equality, women’s equal right to citizenship in this state, is intimately connected with the ability to make decisions on reproductive and sexual health and with respect for women’s right to reproductive autonomy.