The Protection of Life During Pregnancy Act 2013
| Published date | 01 December 2016 |
| Date | 01 December 2016 |
| DOI | 10.1177/0964663916668246 |
| Subject Matter | Articles |
Article
Social & Legal Studies
2016, Vol. 25(6) 667–698
The Protection of Life
ª The Author(s) 2016
Reprints and permission:
During Pregnancy Act
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DOI: 10.1177/0964663916668246
2013: Suicide, Dignity
journals.sagepub.com/home/sls
and the Irish Discourse
on Abortion
Claire Murray
University College Cork, Ireland
Abstract
Abortion is an issue that exposes deep divisions in Irish society and this was
apparent during the debates on the Protection of Life During Pregnancy Act 2013.
This introduced a framework regulating abortion into Irish law for the first time, but
maintained the existing position where abortion is only available where the life of
the woman is at risk. This article focuses on the centrality of suicide within the Irish
discourse on abortion and the impact this had on the shape of the legislation ulti-
mately introduced, in particular the inclusion of a more onerous process, which a
woman must engage with before she can obtain an abortion where the risk to her
life is from suicide. It highlights the practical consequences of this for the small
number of very vulnerable women in Ireland who will be required to engage with
the new statutory process which is deeply damaging. The 2013 Act reinforces the
two-tier approach to healthcare that exists in Ireland in the specific context of
reproductive healthcare as those with sufficient resources will be able to bypass the
difficult and undignified statutory procedure and those who lack the socioeconomic
capital will be compelled to remain.
Keywords
Abortion, dignity, Ireland, regulation, risk to life, suicide
Corresponding author:
Claire Murray, School of Law, University College Cork, Aras na Laoi, Cork, Ireland.
Email: c.murray@ucc.ie
668
Social & Legal Studies 25(6)
Abortion is an issue that exposes deep divisions in Irish society and this was again
apparent during the debates leading up to the introduction of the Protection of Life
During Pregnancy Act 2013.1 This Act provides, for the first time in Ireland, a
statutory framework which sets out the circumstances in which it is lawful for an
abortion to be performed in Ireland. It does not extend Irish abortion law but merely
gives effect to the existing position under the Constitution, as interpreted by the
Supreme Court in Attorney General v. X [1992] 2 IR 1, that an abortion is lawful in
circumstances where there is a threat to the life of the woman. Abortions in cir-
cumstances where the health of the woman is at risk, where the foetus suffers from a
fatal foetal abnormality incompatible with life outside the womb, or where the
pregnancy results from rape, all remain unlawful in Ireland following the introduc-
tion of the 2013 Act and so many women will continue to travel abroad for abor-
tions. UK Department of Health statistics show that 3679 women provided Irish
addresses to English and Welsh clinics providing abortion services in 2013 – this
included 21 young women who were under the age of 16 (Department of Health,
2014a). Of the 5521 abortions provided in England and Wales to non-residents in
2014, 68% were women from Ireland and 15% were women from Northern Ireland
(Department of Health, 2015a: 21). The Irish Family Planning Association suggests
that between January 1980 and December 2013, at least 159,755 women travelled
from Ireland to the United Kingdom for safe abortion services. It is probable that
many more Irish women who obtained abortions in these UK clinics may not have
provided an Irish address. These statistics are a powerful reminder that significant
numbers of women who are resident in Ireland have abortions; they just do not have
them in Ireland.
The 2013 Act was introduced in an effort to comply with Ireland’s obligations under
the European Convention on Human Rights (ECHR) following the judgment of the
European Court of Human Rights (ECtHR) in A, B and C v. Ireland [2010] ECHR 2032
(hereafter A, B and C), which found that Ireland had breached C’s right to private and
family life under Article 8 of the ECHR by failing to provide a framework for women
who meet the legal test to obtain a constitutionally permitted abortion within the State.
This article focuses on the centrality of suicide within the Irish discourse on abortion
around the introduction of the Protection of Life During Pregnancy Act 2013 and the
impact that this had on the shape of the legislation that was ultimately introduced, in
particular, the inclusion of a separate and more onerous process, which a woman must
engage with before she can obtain an abortion in Ireland where the risk to her life is
from suicide. It also discusses the practical consequences of this for the small number
of very vulnerable women in Ireland who will be required to engage with the new
statutory process, and raises concerns about the workability of the new legislative
framework.
For those observing from outside of Ireland it no doubt seems unusual that within the
dominant public discourse on abortion there are very limited references to concepts such
as choice, dignity or reproductive rights, and instead the debate appears to revolve
predominantly around the issue of suicidality. This can be explained, in part, by the
unique history of abortion law in Ireland. Therefore the ‘Contextual Framework’ section
of this article outlines the law in Ireland prior to the introduction of the 2013 Act and
Murray
669
provides background information illustrating how suicide came to sit at the centre of the
discourse on abortion in this jurisdiction. This situation was further compounded by two
more recent developments, namely, the death of Savita Halappanavar in October 2012
and the judgment of the ECtHR in A, B and C. The ‘Locating Suicide at the Centre of the
Contemporary Debates’ section of the article considers the impact of these factors on the
debates leading to the Protection of Life During Pregnancy Act 2013 and briefly outlines
the recommendations of the Expert Group and the hearings of the Joint Oireachtas
Committee. Within this context, where a risk to life from suicide was at the centre of
the debate on the legislation, a number of narratives depicting women seeking abortions
as untruthful or untrustworthy came to the fore. The suggestion underpinning these
narratives was that legislating for abortion in circumstances where there was a risk to
the life of the woman from suicide would encourage deceitful behaviour and would
‘open the floodgates’ to ‘abortion on demand’. The ‘Identifying the Narratives Within
the Discourse on Abortion’ section of the article identifies these narratives and also
highlights the political objectives driving them. It also points out that there were a
number of counter-narratives that emerged during the debates, which were articulated
by leading medical professionals in Ireland. This is noteworthy given the central gate-
keeper role afforded to the medical profession under the terms of the Protection of Life
During Pregnancy Act 2013.
‘The Impact of the Dominant Narratives – A Separate Process for Suicide in the
Protection of Life During Pregnancy Act 2013’ section of the article illustrates the
political impact of the narratives of untrustworthiness discussed in the ‘Identifying the
Narratives Within the Discourse on Abortion’ section on the provisions of the 2013
Act, focusing, in particular, on the separate more onerous process required under
Section 9 where the risk to life is from suicide. It is argued that the narratives articu-
lated by the ‘pro-life’2 grouping gained traction and led to the introduction of legis-
lation, which is more than likely unworkable insofar as it applies to risk to life from
suicide. It is also doubtful whether it complies with the ECHR, despite the stated
intention of the Government being to bring Ireland in line with international obliga-
tions, and so the State remains open to further challenges. The ‘Evaluating section 9 of
the Protection of Life During Pregnancy Act 2013’ section will set out the core diffi-
culties with the Protection of Life During Pregnancy Act 2013. Given the polarised
nature of the debates surrounding the introduction of the legislation there was very
little attention paid at the time to the practical operation of the statutory process,
perhaps because a view was taken by those arguing from a ‘pro-choice’ perspective
that it was strategically better to have imperfect legislation in place, which could be
improved by regulation or amended than getting caught up in trying to introduce a very
detailed legislative framework in the face of considerable opposition. The result is
significant omissions in the legislative framework which do give rise to practical
concerns about whether the 2013 Act is in fact workable and these technical aspects
are set out and discussed. However, in addition to these practical considerations, it is
also important to step back and evaluate the overall scheme of the 2013 Act and to
recognise that in its terms it undermines the dignity of the women towards whom it is
directed. Even those who successfully negotiate the statutory process will have lost
something through their engagement with the system.
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Social & Legal Studies 25(6)
Contextual Framework
Article 40.3.3 of the Irish Constitution provides that:
[t]he State acknowledges the right to life of the unborn and, with due regard to the equal
right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its
laws to vindicate that right.
This provision was inserted into the Constitution in 1983 as a result of...
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