Amend the Constitution so that the Oireachtas is responsible for abortion law

Submission to the Citizens' Assembly.

While the 8th Amendment was being debated in 1983 the Attorney General proposed an alternative wording, making the Oireachtas responsible for abortion law. I believe history has shown this to have been the better approach.

Ireland's policy on abortion is incoherent and this cannot be rectified as the Constitution stands. If a pregnant woman takes an abortifacient within the jurisdiction she is committing a serious crime, whereas, if she temporarily leaves the jurisdiction in order to do so, she is exercising a constitutional right granted by referendum (the 13th Amendment). The Constitution does not require that abortion be outlawed, it merely requires that it be outsourced. What is called “the right to life of the unborn” is in reality the right to a one-way trip to the UK at the woman's expense.

This is a hypocritical policy stance, as opponents of the 13th Amendment pointed out when it was being debated in 1992. Ms Caroline Simons, of the Pro-lIfe Campaign, spoke of "affecting to protect the unborn child while facilitating its destruction outside the state" (Irish Times, Nov. '92). It is important to confront the fact that the right to travel, protected by Article 40.3.3, is specifically for the purpose of obtaining an abortion.

We arrived at this indefensible position by seeking to straddle two incompatible values: concern for unborn life and respect for the autonomy of women. If we continue to make our laws on abortion by referenda we are likely to stumble from one unworkable compromise to another. The task is better dealt with by legislators. They have a strong incentive to reflect the views of their constituents, but, unlike voters, they have to consider practical problems of implementation as well as the need to treat offences in a consistent way.

A good example of how direct appeal to voters breaks down is the public's attitude to pregnancies resulting from rape. Opinion polls show support for permitting abortion in such cases but there is resistance to abortion ”on demand”. However it is clearly impractical to control abortion access on that basis; the decision cannot be postponed until a trial has taken place. It is also indefensible in principle. Either the unborn has a right to life, which trumps the woman's wishes, or it does not. This cannot depend on the circumstances of conception. The need for consistency is a major reason why we employ legislators and judges rather than the kind of direct democracy practised in ancient Athens.

We cannot be certain how TDs will respond to the challenge of legislating for abortion when deprived of the excuse that the Constitution ties their hands. Hopefully they will see that the question for policy is not what conduct is immoral, but what acts we must criminalize. Our present law is only tolerated because it is not enforced. It is common knowledge that women use abortifacients in defiance of the law. But unenforced laws come to be despised and that brings the law in general into contempt.

The Squishy Middle

Down with this sort of thing:

Also this, in the same vein, from Noel Whelan:

In order to advance their view on the abortion issue the campaigners on both sides seem determined not only to take side swipes at politicians opposed to them but to denigrate the entire political class. Inevitably, they each view the political process around this most sensitive of issues through a subjective lens. As a consequence, each side asserts that the failure of politicians to do what they would like them to do arises from indifference to women or unborn children and/or cowardice in dealing with a difficult issue and/or reluctance to oppose powerful conservative/liberal forces.

If Conor O'Mahony were merely saying that future Irish abortion law will inevitably reflect centrist thinking I could hardly argue with that. It is almost a tautology to say that the median voter calls the shots in a democracy. But with his reference to "moderate views" he clearly implies that those in the centre exhibit wisdom not shown by the activists. In the best of cases this "Golden Mean" style of argument is a bit of a crock, but if you're looking for somewhere to walk the Via Media the Irish abortion debate is about the worst terrain you could possibly choose. William Binchy and Ivana Bacik cannot both be right, but both of them can present a case for change which is compelling if you accept their respective premisses. Who could possibly argue for the status quo, from any premisses at all? The following, I submit, is an entirely fair summary of existing law:

(a) Except where a woman's life is at risk, abortions must be outsourced.

(b) No impediment may be placed in the way of a woman who has the means to obtain an abortion (offshore).

That is the monstrosity which our political class has created - the class which Noel Whelan sees as being unfairly denigrated. They had better get used to it. Even if they hadn't made a pig's ear of macroeconomic policy and the banking industry, they would deserve all the brickbats they get for their handling of the abortion issue.

I stress the outsourcing aspect in order to highlight the hypocrisy inherent in the centrist position. William Binchy, in contrast, has been pretty forthright on this issue. From the very outset, back in 1981, he made it clear that he would put all the obstacles he could in the way of women seeking abortions, regardless of where the procedure might be performed. If legislation proscribing foreign abortions could not be passed, injunctions might be employed. I find that proposal grotesque, but it does at least have the merit of treating well-to-do women just as badly as their poorer sisters, so I suppose there's a kind of rough justice to it. The median voter closed off that line of attack by passing the 13th Amendment, although it wasn't clear (to me at least) that the Binchy Dream was truly dead until the case of Miss D was heard in 2007.

When I draw attention to the fact that Ireland's supposed anti-abortion policy is in reality nothing more than an outsourcing policy, people tend to respond: "But no state can be held responsible for other states' laws!" Sorry, that's not the point. The Irish courts could have taken that line but in fact they didn't. In the X Case the majority held that the right to life of the unborn, enshrined in the 8th Amendment, trumped the mother's right to travel. The 13th Amendment reversed that ranking of rights. If the 8th expressed Ireland's abhorrence of abortion, the 13th drastically qualified that abhorrence. As the complete Article 40.3.3 stands now, it is just NIMBY-ism applied to abortion clinics, nothing more: abortion is icky, do it elsewhere.

Messrs O'Mahony and Whelan can call for the moderates to be heard, but they have as much chance of a response as Glendower and Hotspur calling spirits from the vasty deep. The spokespersons for the squishy middle aren't being prevented from making their case. Rather, they are absenting themselves from the conversation because they know that their case is a crock of shit.

The X Case: a Question

Neither of the regular readers of this blog is a lawyer, but on the off-chance that I can persuade a blogging lawyer to take a look at this post, I have a question. Since it’s hardly fair to ask you to do all the work -- no, I'm not a fee-paying client -- I’ll attempt my own answer below and you can tell me where I’m wrong (I’m @Donoghue_K on Twitter).

When the Supreme Court lifted the injunction preventing Miss X and her parents from travelling to London for an abortion, what was the legal essence of their decision, particularly with regard to the risk of suicide? I’ll leave it to you to decide whether I’m asking for the ratio decidendi or the res judicata or neither. Call it what you like. My reason for asking is that I often read pronouncements like this one from Lucinda Creighton TD:

The X case brought in this issue of suicide as a grounds for abortion. I think that's very tenuous. The psychiatrists who came before the Health Committee are the only people who are in a position to really speak with any expertise on the specific question of whether abortion is ever necessary to prevent a suicide. Their answer was a resounding no. That is very conclusive as far as I am concerned and draws a line under the issue. We must be guided by their expert evidence.

Now any fule kno that “suicide is a grounds for abortion” is a rather sloppy account of the judges’ decision in the X case. What they actually said can be read here. Their statements relate to the very peculiar circumstances, which cannot arise again because, in similar cases, the right to travel is now guaranteed by the thirteenth amendment. Just how peculiar those circumstances were is spelled out:

...whatever the exact numbers are, there is no doubt that in the eight years since the enactment of the [eighth] amendment, many thousands of Irish women have chosen to travel to England to have abortions; it is ironic that out of those many thousands, in one case of a girl of fourteen, victim of sexual abuse and statutory rape, in the care of loving parents who chose with her to embark on further trauma, having sought help from priest, doctor and gardai, and with an outstanding sense of responsibility to the law of the land, should have the full panoply of the law brought to bear on them in their anguish.

I said at the outset that I'd attempt an answer to my own question. As I read it, the essence of the judgement is this. If it is practicable to prevent an abortion by imposing restrictions on the movements of the woman concerned, then that should be done; but these restrictions should not be so onerous as to create a substantial risk to her life. In particular they must not create such stress as would give rise to a substantial risk of suicide.

So to what extent does the X case judgement generalize? The most obvious cases in which it applies are those of prisoners who demand abortions. I suppose it would also apply to women on bail, since typically they are not free to leave the jurisdiction.

If my reading is correct, then the “resounding” verdict of the psychiatrists, that abortion is never necessary to prevent a suicide, is a bit beside the point as well as being rather sweeping. The relevant population-at-risk consists of women who want abortions, but are prevented from leaving the country. Studies of women who are at liberty but suffering from depression are not especially relevant.

Abortion

The tragic death of Savita Halappanavar has fanned the embers of the Irish abortion debate, which until then had been smouldering away, ignored by most of the population, including me. At times it seems like we’re back where we started following the launch of the Pro-Life Amendment Campaign (PLAC) in 1981, with Professor William Binchy reprising his old role as champion of the Unborn. It’s a bit like seeing Franco Nero resurfacing in Django Unchained. I thought he must be dead by this time, but actually he has worn rather well. One big difference with this flare-up is that the debate now has an international flavour as American bloggers enter the lists. I welcome this. It livens things up. But it also creates scope for confusion, since Ireland looks deceptively like a US state from certain angles. I want to address two particular sources of confusion in this post:

(1) what the Irish debate is mostly about; and

(2) the idea that Irish law has a particularly Catholic flavour.

“Hard cases make bad law.” We heard that adage frequently from PLAC in the debates leading to the Eighth Amendment (1983):

The 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 defend and vindicate that right.

What PLAC meant about hard cases, I take it, was that the Constitution should merely state the general principle and allow doctors and lawyers to decide whether, for example, a zygote is unborn and therefore has rights, and how the limits of the practicable are to be determined; trust the experts. Unlike Messrs Binchy and Nero, this dictum hasn’t aged well. That is because the only abortion cases which Irish hospitals and law courts need consider are hard cases. For the vast majority of women requiring abortions the main difference between living in London and living in Dublin is the airfare, typically around €130 return. In practical terms, there must be many locations in the US where obtaining an abortion is more difficult than it is for Irish women.

The very success of PLAC means that the Irish abortion debate is concerned exclusively with hard cases, where a pregnant woman has at least a colourable argument that her “equal right to life” is at stake. I stress this because anti-abortion campaigners are wont to frame the issue as if we were discussing abortion on demand. No doubt they fear that any relaxation of the law will put us on that slippery slope, which is quite possible, but we can’t slide very far without another referendum on the Eighth Amendment.

So the sort of thing we are debating is:

* What facilities should be in place in cases where a pregnant woman’s life is acknowledged to be in danger? The European Court of Human Rights finds it unsatisfactory that she should be expected to have her abortion in England. I certainly agree.

* What if the threat to her life arises because she is suicidal, as in the X case? Under current law, the nature of the threat to her life is irrelevant. Obviously this is totally unacceptable to anti-abortion campaigners. I expect the legislation will be a fudge, allowing an abortion in the unlikely event that two psychiatrists approve.

* Lawyers, including those representing the government, believe that the Constitution as it stands may allow abortion in cases of fatal foetal abnormality. Should that be provided for by legislation? That makes sense to me.

By Irish standards, these views are enough to make me a liberal. Pretty clearly, they are rather tame by American standards.

So much for the first confusion I wanted to address. The other one springs from the tendency to assume that Irish abortion law is written to the specifications of the Catholic Church. In reality the source, for most purposes, is the Offences Against the Person Act 1861 of the (then staunchly Protestant) UK Parliament. The consequence is that the distinction “between killing someone directly and allowing someone to die of indirect causes” which is so important to Catholic moralists, doesn’t appear to concern the Irish Supreme Court at all. I’m not a lawyer, but I’m pretty sure that any of the three methods of dealing with an ectopic pregnancy mentioned in that link could be used in Ireland without risk of prosecution. Basically, the law permits killing in self-defence, whether the threat comes from a deranged gunman or a misplaced foetus.

All this is by way of a reply to a question put to me on Twitter, where I have been sounding off on these matters.

[Post updated to reflect the fact that I've changed my Twitter handle.]

More on Irish Maternal Mortality

[Update 25th November 2012: corrected a couple of errors.]

It's always good to follow the example of the masters, so I'll start this post in the style of Cosma Shalizi, who regularly leads off with an Attention Conservation Notice, telling his readers what return they can expect for the time invested in reading further. That's especially appropriate in this case, because Ireland's low maternal mortality figures are being cited frequently in the course of arguments against abortion liberalisation. But that's not what this post is about. To my mind abortion law has to do with rights, not numbers. I want to know more about the numbers, but even if I knew them with certainty I don't believe that would settle any moral questions.

Another issue that I'm not proposing to tackle is the underlying causes of variations in maternal mortality from one country to another. There is quite a bit of literature on that but I haven't read it. When I do, I will share whatever I learn here, so please drop by again. That's what blogging is all about: sharing one's scraps of newfound knowledge (and frequently getting told one is full of shit, usually by people who know even less).

If you're still reading I take it that you want a few numbers. So far, the best primary source I have found is the clinical reports of the Coombe Hospital, which are available online. The table below combines two tables from page 34 of the report for 2010 (click to enlarge).

We could add one more column, for 2003, by looking at the corresponding tables from the 2009 report, which tells us that 8,288 mothers attended the hospital in 2003 and there were no maternal deaths in that year. So over an 8-year period, 71,229 mothers attended the hospital and there were just three maternal deaths. That's a reasonably good outcome, with mortality averaging 4.2 per 100,000 mothers (or slightly better worse if the number is expressed as a proportion of live births). From press reports I know that there were two deaths in 2001-2002. If we include those, assuming that the number of mothers wasn't much different from 2003, we get a mortality figure of about 5.6.

Does what goes for the Coombe Hospital, go for the country as a whole? Well, maybe. The pessimist's reading is that the Coombe is an unusually well-equipped hospital so others are unlikely to do as well. The optimist's reading is that the Coombe probably handles more difficult cases -- see the footnotes to the table. The truth is that we can't safely make inferences for the country as a whole from the figures for a major hospital or even a few of them.

So we're back to the need for better data. When I wrote my previous post, I hadn't read this recent article by Niall Hunter which mentions recent research highlighting the inadequacies of CSO data. I haven't seen that research but I doubt that it would surprise me greatly.

Good Midwives or Bad Statisticians?

In the controversy surrounding the death of Savita Halappanavar many commentators have been quick to point out that Ireland's maternal mortality rate is really very low by international standards. I'm not disputing that, but a word of caution is in order.

According to the CSO's Report on Vital Statistics 2010, there was just one maternal death in Ireland in that year. This figure is certainly incorrect. The Rotunda Hospital recorded three maternal deaths in 2010, while the Coombe Hospital recorded one. (See this Irish Times report). I don't know what the true figure for the entire country is but obviously it can't be less than four. It is unlikely to be in double figures: maternal mortality figures are typically quoted as deaths per 100,000 live births and Ireland has about 75,000 births per year.

So the CSO's numbers are a bit dodgy. What else is new? It won't come as a huge surprise to anyone who has wrestled with CSO figures for migration and the balance of payments. As Paul Krugman remarked in the latter context, Ireland is a major importer of errors and omissions. Even so, an error of at least 300% should make us hesitate before making brash claims about the quality of medical care.

Efforts are being made to produce more meaningful figures. Until these are available, treat with scepticism anyone who refers you to numbers published by outfits like the World Health Organization, Unicef or the CIA Factbook. Their models rely in one way or another on figures supplied by national sources; garbage in, garbage out.

Once again, because I really don't want to be supporting scaremongers: I'm not suggesting that Irish maternal care is poor, even by the standards of other highly developed countries. I'm simply saying that we don't have data that entitles us to make strong claims about our relative performance. Maybe the English really are a bit worse at maternity care. Or maybe they are just a bit better at counting.