Ireland, Abortion and the PLDPA: A Brief History

Abstract The enactment into law of The Protection of Life During Pregnancy Act, 2013 [hereinafter the PLDPA or the Act]. provides a legal framework for the provision of lawful abortion for the first time in Ireland. H Felzmann, 'Bringing abortion to Ireland?: The Protection of Life During Pregnancy Act 2013' [2014] IJFAB 192-198, 192. The legislation clarifies the procedures required to determine whether a woman qualifies for a lawful abortion but is restricted to the constitutional limitations set down in Attorney General v X [1992] 1 IR 1 [hereinafter X or the X case]., which resulted in establishing one of the most restrictive regimes in Europe. The Act, described as ‘fundamentally flawed’ Doctors for Choice, 'Statement on PLDPA (2013) Implementation Guidelines' (Doctors for Choice 2014) <http://doctorsforchoiceireland.com/press-releases/> accessed January 2 2015. has attracted criticism from pro-choice advocates, the medical profession and politicians, due in part, to the omission of any provision to allow for terminations in the case of rape, incest or fatal foetal abnormality. This paper aims to provide an overview of Irish abortion law prior to the PLDPA and, for ease of reading will be divided into chapters. It will present a synopsis of the events that transpired in Ireland resulting in the insertion of the 8th amendment into the Constitution of Ireland in 1983 and the subsequent ramifications of this inclusion which still reverberate today. It will examine the failure of the legislature to make provision for women where there is a fatal foetal abnormality and will illustrate the options, or lack of, available to Irish women owing to the inherent flaws of the Act. Arguments will be presented as to the constitutionality of sanctioning such terminations, an argument D v Ireland Application No 26499/02, 28 June 2006 at paras. 88-90. Ireland maintained was constitutionally viable before the European Court of Human Rights. The paper will discuss a possible remedy; presenting to the people, to determine by way of referenda, the opportunity to repeal the 8th Amendment. [hereinafter the 8th]. Due to the relative ‘newness’ of the Act, the conclusion will also deliberate the following; how the ‘Guidance Document’ Department of Health, 'The Guidance Document for PLDP Act 2013' (An Roinn Sláinte Department of Health 2014)< http://health.gov.ie/blog/press-release/guidance-document-published-for-protection-of-life-during-pregnancy-act-2013/ p 4 accessed February 26 2015. ‘amplifies rather than minimises’ the ‘intrinsic flaws’ contained within the legislation, n 4. and the ramifications the failure to pass the Protection of Life in Pregnancy (Amendment) (Fatal Foetal Abnormalities) Bill 2013 will exert over the reproductive health of Irish women. Chapter 1: Introduction The PLDPA was enacted in July 2013 and commenced in January 2014. The need to legislate was long overdue, primarily as a result of the Supreme Court’s interpretation of Art. 40.3.30 of the Irish Constitution Article 40.3.30 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. in X. The Court held if a ‘real and substantial’ risk to the life as distinct from the health of the mother existed, ‘a termination is permissible’. n 3 53-54 Per Finlay CJ emphasis added. Furthermore, the European Court of Human Rights [hereinafter the ECtHR]. in December 2009 heard the case of three women who alleged that Ireland was in breach of their rights with regards to abortion under the European Convention of Human Rights. A, B and C v Ireland Application No 25579/05, European Court of Human Rights, 16 December 2010 (discussed further in Chapter 2 and 5). [hereinafter A, B. & C.,] [hereinafter the Convention]. The ECtHR held that in failing to provide an accessible and effective procedure which would establish whether one qualified for a lawful termination in accordance with Art. 40.3.30, Ireland had violated the right of applicant C to a private and family life as per Art.8 of the European Convention of Human Rights. ibid paras 267 and 268. The Act restated the general prohibition on abortion, regulating access to a lawful termination of pregnancy but only in accordance with the X decision and the judgment of the ECtHR in A, B. & C., n 7, 4 emphasis added. This led to accusations that the Act ‘did not go far enough’ I Bacik, 'A History of Abortion Law in Ireland and Prospects for Change' [2014] 2 Medico-Legal Journal of Ireland 75-80, p 79. and contained flawed legislation; legislation that would create difficulties rather than address the legitimate concerns of the medical profession. Kitty Holland, ‘GP group adds voice to worries about Abortion Act’ < http://www.irishtimes.com/news/social-affairs/gp-group-adds-voice-to-worries-about-abortion-act-1.1643922> accessed April 22 2014 The need for the HSE to provide guidelines for clinicians rather than training; guidelines was questioned. Veronica O’Keane ‘Protection of Life During Pregnancy Act: 20 Years Waiting and Still no Service for Women’(March 9 2014 <) http://doctorsforchoiceireland.com/2014/03/09/the-protection-of-life-during-pregnancy-act-20-years-waiting-and-still-no-service-for-women/> accessed April 22 2014. The issue of ‘temporal limits’ C O'Sullivan J Schweppe E Spain, 'Article 40.3.30 and the Protection of Life During Pregnancy Bill 2013 The Impetus for, and Process of, Legislative Change' [2013] IJLS 3 (3) 1-17 12. addressed during the course of the public hearings prior to the Acts commencement, including the possibility late or full-term abortions in respect of the dicta in X was not acknowledged by the legislatures. House of the Oireachtas Joint Committee on Health and Children, Report on Protection of Life during Pregnancy Bill 2013 (Heads of), Volume 1, 31/HHCN/012 (Dublin: Houses of the Oireachtas, 2013) http://www.oireachtas.ie/parliament/media/committees/healthandchildren/volume1.pdf> at 44 accessed July 23 2014. The Government issued Green Paper Department of The Taoiseach, 'Green Paper on Abortion' (taoiseach.ie 1999) http://taoiseach.ie/eng/Publications/Publications_Archive/Publications_for_1999/GreenPaperOnAbortion.pdf at pra 4.20. accessed July 23 2014 emphasis added. on abortion legislation, discussed submissions seeking that abortion be permissible on the grounds of foetal impairment, noting that countries that did not specifically provide for severe foetal impairment as a permissible ground for a termination, did permit the procedure under the grounds of an ‘adverse effect on the mother’s mental health’. ibid para 2.2. Acknowledging the arguments that such terminations should be permitted in cases of severe abnormality, or where the foetus is incompatible with life, n 18 para 5.32 the Green Paper documented the lack of clarity regarding Art. 40.3.30, with particular reference attached to the absence of a definition of ‘unborn’. ibid para 7.04 -7.05. Although this absence of a legal definition was rectified within the PLDPA, Part 1 S 2 (1) “unborn”, in relation to a human life, is a reference to such a life during the period of time commencing after implantation in the womb of a woman and ending on the complete emergence of the life from the body of the woman; this definition will be discussed in more detail in Chapter 4. any provision for a termination under the grounds of a fatal foetal abnormality was excluded. Chapter Outlines An overview of Irish abortion law prior to the PLDPA, including discussion of those events resulting in the inclusion into the Constitution of Ireland of the 8th Amendment; culminating with the Supreme Court judgment set down in the ‘X’ case will be discussed in Chapter 2. This chapter will include analysis of the ramifications of that judgment and the impact of the 8th on subsequent abortion cases. Chapter 3 will focus attention on the purpose of the PLDPA. It will discuss the limitations the Act places upon medical professionals and how these limitations impact on pregnant women and their medical treatment. The failure to include provision for Fatal Foetal Abnormalities as grounds for a lawful termination will be questioned, particularly in light of Government arguments that to provide for such terminations may not be in conflict with the Constitution. n 5 at paras. 88-90 Chapter 4 will expand on this debate and demonstrate how the PLDPA, as it now stands, impacts on women’s reproductive health in ways that would not be contemplated in other jurisdictions. Commentary will be included in reference to the failure of The PLDP (Amendment) (Fatal Foetal Abnormalities Bill) 2013, presented to the Dáil to offset the inadequacies of the PLDPA, to pass through the House of the Oireachtas. Chapter 5 will analyse if the response adopted by Strasbourg to Member States such as Poland and Ireland who operate a restrictive regime on access to abortion and abortion-linked services, can be likened to a practice described by Fenwick D Fenwick, ‘Abortion jurisprudence at Strasbourg: deferential, avoidant and normatively neutral?’ Legal Studies, 2014, 34, 2 214-241. as ‘deferential, avoidant and normatively neutral’. It will be submitted that this depicts a form of discrimination against women which may be interpreted as acceptable to Strasbourg due to the margin of appreciation granted to Ireland. The concluding chapter will discuss whether the guidance document for medical professionals amplifies or minimises the treatment of pregnant women where there is a fatal foetal abnormality. It will demonstrate how the Act has proved to be intrinsically flawed, leading to a practice characterised ‘as verging on the grotesque’, PP v Health Service Executive [2014]IEHC 622 para 61. [hereinafter P]. and will examine the impact the PLDPA has exerted over the reproductive health of Irish women. It will present two possible ‘forward-looking arguments’ for holding a constitutional referendum in order to alleviate the suffering imposed on women diagnosed with a fatal foetal abnormality and to give effect to Ireland’s international obligations. M Enright, F deLondras ‘Empty without and empty within’: the Unworkability of the Eight Amendment after Savita Halappanavar and Miss Y’ (2014) 20, 2 MlJI. Chapter 2: McGee, Roe and the Crusade to Save the ‘Unborn’ The PLDPA signalled a new direction in Irish abortion jurisprudence. Criminalised in Ireland since 1861, abortion continued to generate division and argument within the legal profession and Irish society. Sections 58 and 59 of the Offences against the Person Act 1861. Two pivotal events dominated this contentious issue; the inclusion into the Constitution of the 8th Amendment in 1983 granting an unprecedented level of protection to the ‘unborn’ in effect consolidating a ‘blanket ban’ on abortion and the judgment handed down in the seminal ‘X’ case. S Donoghue CM Smyth, 'Abortion for Foetal Abnormalities in Ireland; The Limited Scope of the Irish Government's Response to the A, B, and C Judgment' 20 [2013] EJHL 117-143, 118 The 1960’s and 1970’s saw dramatic changes to laws surrounding the issue of abortion take place in Britain and the United States of America. B Daly, '"Braxton Hick's" or the Birth of a New Era? Tracing the Development of Ireland's Abortion Laws in Respect of European Court of Human Rights Jurisprudence' [2011] EJHL 18 375-395, 376. This shift could be observed in the case of R v Bourne [1938] 1KB 687 where McNaughten J held that an abortion performed with the intention of saving the mother’s life, or with the intent to safeguard her health could not be considered an offence. This judgment in effect recognised a woman’s health needs and was reflected in the United Kingdom Abortion Act of 1967 permitting abortion in circumstances where it was deemed necessary to save the life of a pregnant woman, or to prevent harm to the woman’s physical and mental health. ibid emphasis added. The U.S. Supreme Court, building on earlier case law surrounding privacy and contraceptive rights, held in Roe v Wade (1973) 410 U.S. 113 that women had a Constitutional right to abortion. These changes, coupled with the judicial decision (described as a ‘timebomb’) W Binchy, ‘Privacy and Family Law: A reply to Mr. O’Reilly’ (1977) Winter: Studies: An Irish Quarterly review 330 at 330. of the Supreme Court who held in McGee v Attorney General, [1974] I.R. 284 [hereinafter McGee] that the right of a married couple to import contraception for their own use, was a right to marital privacy implicit in the Constitution, acted as a ‘catalyst’ for more conservative forces in Ireland to lobby for a referendum to constitutionally protect the ‘rights’ of the unborn. I Bacik, 'Legislating for Article 40.3.30' [2013] IJLS 3 (3) 18, 21. These conservative forces perceived McGee as offering a backdoor route for the future legislation of abortion due to the ‘privacy’ concept espoused by the Supreme Court. ibid. This provided the motivation for the Pro-Life Amendment Campaign (P.L.A.C.) to vigorously lobby the main political parties for the introduction of a Bill to allow for Constitutional amendment, thereby ensuring that provisions of the Constitution could not be interpreted by the Supreme Court as giving a right to abortion, thus creating an ‘Irish’ Roe v Wade scenario. ibid. Despite serious reservations expressed by many as to the wording n 9. P.L.A.C. wished to insert into the Constitution the government reluctantly put a referendum to the people. What followed was a vitriolic, acrimonious campaign, likened to the ‘second partitioning of Ireland’ n 37, 21. hard fought by both pro-choice and pro-life groups; charges ranging from ‘Baby Killers’, to ‘Keep your Rosaries off my Ovaries’ and to ‘SPUC Off’; (depending on what side of the fence one sat on the abortion referendum), were levelled against political representatives and each other. S O'Carroll, 'History Lesson: What happened during the 1983 abortion referendum?' (The Journal.ie December 27 2015) <http://www.thejournal.ie/abortion-referendum-1983-what-happened-1225430-Dec2013> accessed Jan 2nd 2015. Despite encouragement from Catholic hierarchy to overwhelmingly support the Amendment only 53.67% of eligible voters went to the poll. While two thirds voted for the Constitutional ban on abortion, a low turnout meant that approval by only 35.9% of the electorate was sufficient to vote the 8th Amendment into place, which was duly signed into law on the 7th October 1983. S McAvoy 'Vindicating Women's Rights in a Fetocentric State: The Longest Irish Journey' in N Giffney M Shildrick (eds), Breaking Feminist Waves Series: Theory on the Edge Irish Studies and the Politics of Sexual Difference (1st, Palgrave Macmillin , Hampshire England 2013) p, 50. 2.1 The Impact of the 8th Amendment Subsequent to the constitutional ban on abortion, the Society for the Protection of Unborn Children (S.P.U.C.) next targeted See Attorney General (S.P.U.C.) v Open Door Counselling Ltd [1987] I.L.R.M 477. those whom it deemed foolhardy enough to provide women with information on all the options available to them, including contact details of clinics offering abortion services in the UK. S.P.U.C. argued that the provision of such information was in breach of the Constitutional right to life of the unborn. On appeal to the ECtHR; who ruled the ban to be overboard and disproportionate, Ireland was held to be in breach of the freedom of expression guarantee in Art.10 of the Convention. n 29 23 see Open Door Counselling and Others v Ireland (Open Door No 2) (1993) 15 E.H.H.R. 244. However it was the seminal decision of the Supreme Court in the infamous ‘X’ case that lent a prophetic ring to the words of then TD Alan Shatter, who, while arguing against the original wording of the 8th Amendment stated: ‘The irony is that I have no doubt, not merely from the interpretation the Attorney General has given but from the other interpretations that can be validly taken from the amendment, that if it in its present form becomes part of our Constitution it will essentially secure a constitutional judgment in the not too distant future requiring the House to enact legislation to permit women to have abortions’. Dáil Eireann Debate Vol 340 No. 3 Col. 533 < http://debates.oireachtas.ie/dail/1983/02/17/00004.asp> accessed July 14 2014. The 8th Amendment stipulated that the right to life of the ‘unborn’ must be respected, vindicated and defended with ‘due regard’ to the equal right to life of the mother. This created a ‘maternal-fetal conflict’ R Yoshida, 'Ireland's restrictive abortion law: a threat to women's health and rights?' [2011] CE (6) 4 172-178, 175. placing mother and fetus on opposing sides; should these two rights collide it would be for the courts to decide which life took priority. n 37 25. 2.2 The ‘X’ Case This clash of rights presented itself nine years later in the historic X case. Briefly a 14 year old girl became pregnant after she had allegedly been raped by the father of her best friend. Due to Ireland’s Constitutional protection of the unborn child, X could not lawfully obtain a termination of the pregnancy. As X threatened to commit suicide if forced to continue the pregnancy, her parents arranged for the procedure to be carried out in England. Prior to leaving, her parents informed the police of their intentions and raised the feasibility of DNA testing on the foetal tissue in order to identify the alleged rapist. n 31 381. The police notified the Director of Public Prosecutions (DPP) and the Attorney General lodged proceedings in the High Court n 3. seeking and receiving an injunction, thus preventing the girl from leaving the jurisdiction. However X and her parents, already in England, returned to contest the injunction on the grounds of the right to seek a service legal in another jurisdiction and where the mother’s life (due to the threat of suicide) was at risk. n 31 381. The Supreme Court, while declaring it had a constitutional obligation to defend and vindicate the ‘right to life of the unborn’ deemed the appeal admissible on the grounds of the mother’s threat to commit suicide therefore placing her own life at risk. n 3 at 55. The absence of legislation, together with the conflict created by two competing Constitutional rights, destined the Supreme Court to determine the balance between the rights of the unborn with the equal right to life of the mother; and establish which ‘right’ should be granted precedence. The Court ruled that a termination may be permissible …if there is a ‘real and substantial’ risk to the life as distinct from the health of the mother…such termination is permissible. ibid 53-54 Per Finlay CJ emphasis added. In addition, while the Court deemed suicide to constitute such a risk, it was adamant that the Constitutional guarantee under Art.40.3.30 could not be construed to extend to terminations for medical reasons or where a pregnancy may pose a risk to the mother’s health. This distinction not only failed miserably to acknowledge the inherent links that exist in certain circumstances between a mother’s health and life, n 31 382. but heralded an era of uncertainty, and confusion that reverberated for two decades; decades that depicted Ireland as unwilling to address that fact that abortion is not a black and white issue, but a procedure sought and attained by many of women, albeit outside the Irish jurisdiction.  A total of 3,679 women having abortions in clinics in England and Wales gave Irish addresses in 2013, although this may not represent all those women from Ireland who had abortions in that year. Source: https://www.gov.uk/government/publications/report-on-abortion-statistics-in-england-and-wales-for-2013 accessed March 12 2015. For comment on these figures, see: http://www.ifpa.ie/node/569 accessed March 12 2015. This exportation of an ‘Irish solution to an Irish problem’ was to set Ireland on a collision course within its own jurisdiction and that of the European Court of Human rights. 2.3 Ramifications of the ‘X’ Decision Although the decision in ‘X’ was hailed as ‘progressive’ by commentators in reality it proved to be anything but. n 47 173. The definite distinction drawn between health and life, upheld the ‘status quo’ denying any exceptions should the mothers health be at risk. ibid. The right to travel to another state to secure a termination still needed clarification as did the right to be provided with information about abortion services lawfully available in other states. n 31 383. These issues were resolved by a constitutional referendum where three issues explicitly relating to the outcome of the X judgment, were put to the people in 1992. ibid. The Thirteenth and Fourteenth Amendments; relating to the rights to travel and the right to obtain and make available information on abortion services, were passed. However, the Irish people rejected the Twelfth Amendment; a more ‘draconian’ approach to a woman’s right to access abortions services, the Twelfth Amendment aimed to remove the threat of suicide as a ‘real and substantial’ risk to the life of a pregnant woman. ibid 382. Ireland now lay in a state of flux. Women who faced the prospect of a threat to their health during pregnancy, or where a fatal fetal abnormality was detected, had no recourse under domestic law. Irish abortion jurisprudence left a situation whereby only when the life of the mother was under a real and substantial risk could a court sanction an abortion. ibid. No medical guidelines or legislation where set in place stating what criteria needed to be reached, or where the procedure could be carried out. Should this now lawful right be challenged, it was left to the judiciary to ‘step into the legal vacuum’ n 37 35. and assume the role of referee. See A and B v Eastern Health Board [1997] IEHC 176; [1998] IR 464; [1998] 1ILRM 241. The lack of clear-cut guidelines imposed further difficulties upon medical professionals faced with recommending treatment for women where a fatal fetal abnormality was diagnosed; the spectre of prosecution still hung over doctors should termination of pregnancy be the desired option. n 29 122. While the legislature appeared unwilling to deal with the predicament of women’s legitimate concerns regarding their reproductive health the women themselves were not. It would be women’s persistence in fighting such restrictions and the tragic death of a pregnant woman The death of Savita Halappanavar discussed in concluding paragraph of this chapter. that finally forced Ireland to meet its obligations to provide legislation for lawful abortion. 2.3 Dragging Ireland into the 21st Century: D, Miss D and A, B. & C., From 1998 until 2007 no abortion cases were brought before the domestic courts. This is not to imply that the issue of abortion had gone away. On the contrary, Ireland continued to rely upon and accept that particular reproductive health care needs of women would be taken care of by Britain regardless of the additional stress this entailed. Deputy Mick Wallace oireachtas Debate re the Protection of Life in Pregnancy(Amendment)(Fatal Foetal Abnormalities)(no.2) Bill 2013:First Stage <http://oireachtasdebates.oireachtas.ie/debates%20authoring/debateswebpack.nsf/(indexlookupdail)/20131128~U?opendocument#U01600> accessed September 25th 2014 Two issues of national interest concerning women whose pregnancies were diagnosed with a fatal foetal abnormality appeared before the courts albeit in different jurisdictions. In neither case did a ‘real and substantial risk’ to the life of the mother’s exist, nor were the women suicidal. However, given the ‘equal status’ of the unborn in Irish law n 29 124. neither mother could avail of a lawful termination within their own country. (i) The D Case ‘D’ n 5. involved a woman pregnant with twins, one which stopped developing at eight weeks gestation. The other twin was diagnosed with Edwards’s syndrome, a severe abnormality that would lead to the death of the baby shortly after delivery. J Schweppe E Spain, 'When is a Foetus not an Unborn? Fatal Foetal Abnormalities and Article 40.3.30' [2013, 3 (3)] I.J.L.S. 92-110, 97. Believing she would receive no recourse under domestic law, she travelled to England to terminate her pregnancy and brought an application to the ECtHR where she argued her rights under the Convention were violated. ibid. In response, Ireland argued that it was ‘an open question’ given the circumstances of D, as to whether Art. 40.3.30 could allow for a lawful termination, n 69 at 98. stating the judgment in X demonstrated that the courts had ‘expanded and interpreted’ the meaning of the 8th Amendment, ibid. that ‘there might be an issue as to the extent the State was required to guarantee the right to life of a foetus which suffered from a legal genetic abnormality. n 5 at para 69 emphasis added. While noting that the Government had ‘discharged the burden’ on them to show that the suggested constitutional remedy was ‘accessible’, ‘capable of providing redress’ and offered ‘reasonable prospects of success’ ibid. the ECtHR believed there was a ‘feasible argument to be made’ that the enshrined balance between the right to life of the mother and of the foetus could have shifted in favour of the mother due to the foetus suffering from an abnormality that made it incompatible with life. n 5 at para 90-92. However, the ECtHR deemed her case to be inadmissible due to D’s failure to exhaust available domestic remedies where in principle a remedy was available to her. n 31 at 386. Reasoning that appears somewhat contradictory particularly when one considers that in Open Door and Well Woman v Ireland (1992) 15 EHHR 244. the Court held that the applicants would be unlikely to be successful before the Irish courts. n 31 at 386 emphasis added. The confidence of the ECtHR in the Irish judicial system to resolve this issue was sadly misplaced as the so called ‘Miss D case’ was to prove. n 29 125. (ii) The ‘Miss D’ Case Miss ‘D’ was a 17 year old girl under the care of the HSE, who on discovering the foetus she was carrying was anencephalic, sought permission to travel to the UK to obtain an abortion. n 15 78. Denied permission by the District Court, Miss D appealed this decision to the High Court. Although McKechnie J stressed he was not making any observations about whether the severe abnormality of the foetus affected its ‘constitutional rights’, O Bowcott, ‘Irish judge stirs up abortion debate by ruling 17-year old can travel to UK for termination http://www.theguardian.com/society/2007/may/10/health.frontpagenews see also Miss D can travel for abortion: Court http://www.rte.ie/news/2007/0509/88757-abortion/ accessed March 13 2015. he ultimately based his decision on the right to travel stating that Miss D’s ‘right to travel took precedence over the right to life of the unborn’. J Schweppe, ‘Taking responsibility for the “Abortion Issue”: Some Thoughts on Legislative Reform in Aftermath of A, B and C ‘Irish Journal of Family Law 2011, 50-56. On reflection one could view this as ‘a missed opportunity’ n 29 124. by the Irish judiciary to address the issue raised in D; does Constitutional protection of the unborn extend to a foetus classified as incompatible with life? If, as the Government argued a constitutional remedy was ‘accessible’, n 5 at para 69 emphasis added. it therefore follows, that having first broached the subject of severe foetal abnormalities and constitutional rights, it would not have been outside McKechnie J’s remit to expand further on this observation and provide some clarification in respect of how far constitutional protection of the unborn extends when the unborn in question is medically deemed to be incompatible with life. Shortly after the ‘Miss D’ case and following on from the ruling in D a more substantive decision of the ECtHR was handed down in A, B and C v Ireland n 12.. Briefly, the case involved three applicants, all living in Ireland, who had to travel to the UK to terminate their pregnancies. They argued that Ireland’s restrictive abortion laws violated their rights under the Convention. n 15 79. Applicant C claimed no doctor could state with any degree of certainty whether her pregnancy presented a threat to her life. ibid. Furthermore, she claimed the ‘chilling effect of the Irish legal framework’ resulted in her receiving ‘insufficient information’ as to the impact of the pregnancy on her health and life, and the impact on the foetus of her prior tests for cancer. n 12 para 24. While ruling against the first two applicants, in the case of applicant C, the court ruled that the failure of the Irish Government to establish a legal framework thus determining whether a woman qualified for a lawful abortion violated her right to a private and family life under Art.8 of the Convention. ibid para 264. The court emphasised that although there is no definitive right to abortion under the Convention ibid para 214. it did allude to the reality that although Art. 40.3.30 envisioned the establishment of lawful provision for abortion; no relevant legislation had been enacted by Ireland M A Rhinehart, 'Abortions in Ireland: Reconcilling a History of Restrictive Abortion Practices with the European Court of Human Rights' Ruling in A., B. & C. v. Ireland.' [2012-2013] PSLR [vol.117:3] 959-978, 968-969. to allow women to ascertain whether they qualified for a lawful termination under Irish law. n 12 para 253. 2.4 Ireland’s Response to A, B. & C Ruling Despite claiming during their presentation to the Universal Periodic Review, see Irelands Universal Periodic Review, UNIVERSAL PERIODIC REVIEW(REVIEWING HUM.RTS.IN IR.),< http://bit.ly/11M4kW7 > accessed April 13 2014. to be fully committed to the swift application of the Courts clear ruling in A, B. & C., Ireland rejected every recommendation suggested by other member states that dealt with abortion. n 91 970. The government established an expert group on abortion as part of their ‘Programme for Government’, n 17 4. yet the eventual adoption Irish law of the PLDPA, was as some commentators suggested, H McDonald, Ireland ‘Should Change Abortion Law’ After Woman’s Death, The Guardian (Nov.14 2012) http://bit.ly/X7DnuO accessed April 13 2014. motivated more in response to the political pressure brought to bear in the aftermath of public and international revulsion at the death of Savita Halappanaver than the legal issues surrounding the decision of the ECtHR. Just before the publication of an Expert Group Report; Fine Gale/Labour, Towards Recovery: Programme for a National Government 20011-2016 at 8 <http://per.gov.ie/wp-content/uploads/ProgrammeforGovernmentFinal.pdf> accessed January 16 2015. Ms Halappanaver presented herself to Galway University Hospital in October 2012. A requested inducement of a miscarriage was refused as a foetal heartbeat was detected therefore the consultants felt constrained by Art. 40.3.30. As her condition deteriorated the decision was made to terminate the pregnancy, however as further complications set in Mrs Halappanaver tragically died. n 17 5. That this should occur two years after the ruling in A, B. & C., could be construed as further indication of the ‘lip service’ displayed by the Irish Government towards women’s health. Chapter 3: The PLDPA: An End to Uncertainty or Flawed Legislation? Presented as an Act to protect human life during pregnancy, the purpose of the Act is to reaffirm the general prohibition on abortion in Ireland. While provision is provided for lawful access to termination of pregnancy, it is regulated in accordance with the dicta in X and the judgment handed down in A, B. & C. n 7 4 para 1.2. Thus, abortion remains criminally prohibited except where pregnancy will endanger a woman’s life, including the risk of suicide. J N Erdman ‘Procedural Abortion Rights: Ireland and the European Court of Human Rights Reproductive Health Matters’ 2014 22 http://www.rhm-elsevier.com accessed February 5 2015. This exception relates to three specific situations: where there is a real and substantial threat to the life of the woman from a physical illness, S 7 of the Act. where there is an immediate risk to the life of the mother from a physical illness S 8 of the Act. and where there is a real and substantial risk to the life of the mother arising from suicide intent. S 9 of the Act. These three sections require doctors to form their opinion as to risk with the ‘need to preserve unborn human life as far as practicable’. n 15 79 emphasis added. In spite of some ‘pro-life hyperbole’ in respect of the suicide clause, n 2 195. suggesting the proposed legislation would be akin to ‘floodgates’ providing ‘abortion on demand’, F De Londras, L Graham, '"Impossible Floodgates and Unworkable Analogies in the Irish Abortion Debate" ' [2013] IJLS 3 (3) 54-75, 54. the Act provides only for existing rights and is designed to provide a regime which is as restrictive and conservative as possible. n 2 195. 3.1 The Criminalisation of Abortion The PLDPA does not decriminalise abortion. Under the terms of the Act, ss.58 and 59 of the Offences Against the Person Act 1861, are ameliorated, although a custodial sentence of 14 years still exists. S 22 (1) (2) (3) of the Act. This places severe limitations on how medical professional approach their patients care. Doctors are hampered as to how they may channel information on crisis pregnancy options or refer women to abortion services outside the State due to stringent restrictions and the imposition of criminal sanctions by the Regulation of Information (Services outside the state for the Termination of Pregnancies) Act of 1995. n 28 86. The highly restrictive circumstances under which Irish women may lawfully avail of abortion and the lack of procedural clarity, has drawn repeated criticism from the UN human rights panel who voiced their concerns following the fourth periodic report of Ireland in July 2014. One specific concern was the failure to include cases of fatal foetal abnormality in the Act, ibid. particularly as many academics believe that the ‘unborn’ protected within the 8th Amendment does not include those foetuses with a fatal abnormality. n 69 99. See also Letter to the Irish times on Abortion Legislation and Fatal Foetal Abnormalities< http://humanrights.ie/constitution-of-ireland/letter-to-the-irish-times-on-abortion-legislation-and-fatal-foetal-abnormalities/> accessed October 10 2014. 3.4 Analysis As legislation for abortion did not exist in 2007, there was no legal definition of the term ‘unborn’. As mentioned earlier, in raising the matter of ‘constitution rights’ for fatal foetal abnormalities, it could be argued that had McKechnie J extended on his observation it would not, as former Chief Justice Keane contended be considered ‘making law’ but simply interpreting the Constitution to reflect the changes time inevitably brings. R Keane, ‘Judges as Lawmakers: The Irish Experience’ 1-18, 18. Former Chief Justice of the Supreme Court of Ireland. Text of address delivered to the National University of Ireland, Galway, Law Society on 1 October 2003 http://www.jsijournal.ie/html/Volume%204%20No.%202/4%5B2%5D_Keane_Judges%20as%20Lawmakers.pdf accessed March 13 2015. McKechnie J, in his decision, may have considered the dissenting judgment of Henchy J in Norris v Attorney General [1984] IR36 (SC) at 71. who stated that previous decisions of the court See Ryan v Attorney General [1965] 1 I.R. 294, n 36. in his view, established a right of privacy, broader than a right of marital privacy, and this right, it may be argued, could be similar to that afforded to Roe, (1973) 410 U.S. 113 at 153 broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The onus would have been placed on the State to challenge that interpretation should the State have deemed it necessary to do so. Unfortunately although the Irish judicial system had the opportunity to expand the dicta in X and set a precedent that abortion could legally be accessed where the foetus cannot survive outside of the womb it failed to do so. n 29 125. The issue as to the extent of protection afforded to ‘unborn life’ where there is no such capacity, although raised during the Joint Oireachtas Committee Hearings and the Oireachtas debates was not addressed by the Act. J Schweppe, E Spain, ‘Interpreting ‘Life’ in the Protection of Life During Pregnancy Act 2013’( 2014) 20, 2 Medico-Legal Journal of Ireland, 93-96 94. One must question why the Irish Government, having argued in Strasbourg that Art. 40.3.30 may not be as rigid as previously believed, did not press for the inclusion of fatal foetal abnormalities when legislating for the PLDPA. Chapter 4: A Legal Conundrum: Should equal priory exist if the ‘unborn’ is destined to die? Prior to the introduction of the PLDPA, no legislative definition of the term ‘unborn’ existed under Irish Law. It was not until 2009 that ‘unborn’ for Constitutional purpose was held by Denham J to mean; life within the womb ‘with the potential to be born or capacity to be born’. Roche v Roche [2009] I.E.S.C. 82, 2 I.R. 321, [2010] 2 I.L.R.M. 441. This distinction of ‘life’ and the emphasis placed on the potential or capacity to be born prompted much debate when submissions were taken in respect of legislating for the PLDPA. n 19 at 22 http://www.oireachtas.ie/parliament/media/committees/healthandchildren/volume1.pdf Dr Ruth Fletcher’s suggestion that the duty to protect the unborn rests on ‘its potential’ to develop to ‘personhood’ was echoed by the focus group Terminations for Medical Reasons [hereinafter TFMR] who proposed that any definition of the ‘unborn’ should be one ‘viable and compatible’ with life. ibid. Should such a definition be given, foetuses that suffered from an abnormality which removed any possibility of survival outside the womb, would not come within the constraints of Art. 40.3.30, thus permitting terminations in cases of fatal foetal abnormalities. ibid. However, as Schweppe and Spain noted, when the question regarding terminations where there is no capacity for an independent existence was raised during the Oireachtas debates, the response of Minister Alex White [hereinafter White]. was crucial. n 118 94. White stated that based on advice provided by the Attorney General, if a foetus has a condition which makes it incompatible with life but which is capable of been born, or has the possibility of survival outside the womb, then Art. 40.3.30 is engaged. ibid emphasis added. For a personal perspective on the debate surrounding the PLDP Bill see Alex White’s personal blog at https://alexwhitetd.wordpress.com/2013/07/ accessed March 15 2015. In response to the question; if there is ‘no possibility of survival’ outside the womb, and if the life of the unborn ends in the womb, Art. 40.3.30 would not be engaged, thus no protection would be afforded; n 118 95. Schweppe and Spain pointed out that no clarity was provided on the limited category whereby foetuses which may survive until delivery would be incompatible with life. ibid. This lack of clarity was to be carried over by the legislature into the Act itself. In defining the ‘unborn’ as ‘[a] life during the period of time commencing after implantation in the womb of a woman and ending on the complete emergence of the life from the body of the woman’ S 2(1) The Protection of Life During Pregnancy Act 2013 emphasis added. no consideration was given to women who may be carrying a foetus which may, due to a lethal abnormality, have no capacity to live an independent life post-delivery. Schweppe and Spain argued that under the parameters of the Act, this definition could be significant and open to further interpretation by the courts, particularly if the inability of a foetus to sustain an independent existence is the basis for future challenge. n 118 96. 4.1 Diagnosis of a Fatal Foetal Abnormality: Emotional Trauma and Limited Options As the law currently stands, when a woman is diagnosed with a fatal foetal abnormality the choices she faces are stark; she can elect to go ahead with the pregnancy, or, should she opt for a termination, she must travel to another country to avail of this service. n 69 95. The decision to terminate brings other concerns to the forefront of an already fraught situation. Should the woman lack the necessary financial means to travel, she has to engineer ways to secure these finances. ibid. This can result in a later term abortion and all the medical problems that can entail. ibid. The choices an obstetrician may recommend are similarly limited. The restrictions placed upon them by the Regulation of Information Act, prevent a full consultation with their patients. ibid 96. This extends to the issue of post abortion follow up care should she decide to terminate the pregnancy abroad. ibid. A post mortem of the aborted foetus may not be possible and the secrecy surrounding a termination heightens the isolation experienced by many women, a fact highlighted in D. n 5 at para 58. Women who choose to continue with the pregnancy have spoken of the emotional impact it left on them and their families. M Meehan, 'Column: I carried my baby to term knowing when he was born I was going to have to bury him' (The Journal.ie 2014) http://www.thejournal.ie/readme/anencephaly-fatal-foetal-abnormality-pregnancy-birth-ireland-1420739-Apr2014/ accessed March 1 2015 Other women, who decided to terminate the pregnancy, spoke of the limited options available to them in Ireland, of the cruel comments they faced when they decided to go public with their stories Anonymous, 'Column: Ireland shows no love to babies dying in their mothers’ wombs' (The Journal.ie 2014) http://www.thejournal.ie/readme/fatal-foetal-abnormality-tfmr-terminations-ireland-1378064-Mar2014/ accessed March 1 2015 see also Anonymous, 'Opinion: A fatal foetal diagnosis is nobody's fault -the deliberate lack of support by the State is' (The Journal.ie 2014) http://www.thejournal.ie/readme/fatal-foetal-diagnosis-ireland-1572500-Jul2014/?utm_source=shortlink accessed March 1 2015, and of a legal system that promotes a sense of shame and misunderstanding around the issue of termination for medical reasons. Anonymous, 'Severe foetal abnormality: ‘Her short life was a burst of sunshine’' (The Irish Times 2015) http://www.irishtimes.com/life-and-style/people/severe-foetal-abnormality-her-short-life-was-a-burst-of-sunshine-1.2113963 accessed March 1 2015. These are real women suffering real heartache, who, through non-profit organisation TFMR http://www.terminationformedicalreasons.com/ are beginning to share their stories to express how a fatal foetal diagnosis impacts on their lives and that abortion is not a black and white issue. Although referenda in 1992 and 2002 Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2002 which would remove threat of suicide as a ground for abortion and increase the penalties for helping a woman have an abortion. rejected proposals to place further restrictions on access to abortion, the Irish people have never been afforded the opportunity to make such access less restrictive; despite the fact that public support for a more moderate approach, particularly in cases of rape, foetal abnormality or when the health of the mother is at risk, is regularly reflected in opinion polls. 'Abortion: Public Opinion' (IFPA ) http://www.ifpa.ie/Hot-Topics/Abortion/Public-Opinion accessed February12 2015. This public support was noted by Independent TD Clare Daly who sought to provide a legal framework to resolve the deficiencies of PLDPA. 4.2 The PLDP (Amendment) (Fatal Foetal Abnormalities Bill) 2013 On November 20, 2013 Clare Daly, requested leave to introduce a Private Members Bill 'Protection of Life in Pregnancy (Amendment) (Fatal Foetal Abnormalities) Bill.' (Oireachtas.ie 2013)[hereinafter the Bill] http://www.oireachtas.ie/documents/bills28/bills/2013/11513/b11513d.pdf accessed January 6 2015 to amend three sections of the Principle Act, thereby permitting medical terminations for cases of fatal foetal abnormalities. Protection of Life in Pregnancy (Amendment) (Fatal Foetal Abnormalities) Bill: 2013: First Stage http://oireachtasdebates.oireachtas.ie/debates%20authoring/debateswebpack.nsf/takes/dail2013112100023 accessed March 5 2015 The Bill proposed amending Part 1 of the Principle Act by inserting the following definition in a new Section (2); ‘fatal foetal abnormality’ means a medical condition suffered by a foetus such that it is incompatible with life outside the womb’. Part 2 Chapter 1 of the PLDPA which sets out the medical procedures lawful under the Act would be amended by the insertion of a new Chapter, ‘Chapter 1A: Fatal Foetal Abnormalities’ with Section 9A. (1) through (4) containing the relevant provisions. The short title and commencement of the PLDPA would be amended to read; the Protection of Life in Pregnancy (Amendment) (Fatal Foetal Abnormalities) (No. 2) Act 2013, to come into operation with immediate force. The Dáil debate when the Bill reached its second stage echoed the heated arguments that preceded the Principle Act. In order to pass the Bill to the committee stage the proposed new amendment ‘Chapter 1A’ reiterated the legal uncertainty of whether creating provision for termination of a pregnancy in cases of a fatal foetal abnormality would be repugnant to the Constitution. While the Constitution recognises the right to bodily integrity n 115. and autonomy Re a Ward of Court [1996] 2 IR 79. as unenumerated constitutional rights, it is to be assumed by the intensity of the debate that such rights are suspended during pregnancy. R Fletcher, 'Contesting the cruel treatment of abortion-seeking women' [2014] Reproductive Health matters 10, 17 The debate also exposed the hypocrisy of many of our elected representatives. Despite Ireland’s abortion laws being depicted as ‘too restrictive’ thus exerting a ‘chilling effect on doctors’, the current understanding of Art. 40.3.30 is so profoundly ingrained in political consciousness as to make any reinterpretation highly unlikely. n 28. The resulting failure of the Bill to pass to the committee stage retains the status quo of Ireland’s restrictive abortion regime. The position of women affected by a fatal foetal abnormality remains unchanged as does that of their obstetricians. Again they will be forced to travel in order to avail of the medical treatment their condition entails and again this will impact on their mental and physical health. The faith placed by Strasbourg in Irelands claim that a reasonable prospect of redress is constitutionally accessible again appears misplaced. Should some future challenge to Ireland’s draconian abortion law once come before Strasbourg it is uncertain if it would be held that Ireland is in beach of Art. 14 which prohibits discrimination on the basis of gender. Chapter 5: Jurisprudence at Strasbourg: The Right to a Legal Abortion Technological advances in antenatal diagnosis of foetal abnormalities and rising maternal age mean more women are likely to be diagnosed with a fatal foetal abnormality. C Lafarge K Mitchell P Fox, 'Termination of pregnancy for fetal abnormality: a meta-ethnography of women's experiences' [2014] RHM 191, 191. Terminating a pregnancy for fetal abnormality can be a complex decision which can have long-term psychological repercussions such as depression and complicated grief for women. ibid. The extreme restrictions of abortion-linked laws, particularly those practiced in Poland and Ireland have been criticised as detrimental to the reproductive health of women. n 26 214. Whereas Strasbourg will not recommend any change to a Member States existing abortion laws, where a state does provide for a right to abortion and to access abortion services the European Court will uphold such rights. n 31 at 387 Thus in RR v Poland, (2011) 53 EHRR 31., Strasbourg, for the first time, held that the withholding of medical treatment amounted to inhuman and degrading treatment. ibid para 155 – 160. The Court referred to the breach of Poland’s positive obligations including the failure to provide; timely access to services and information, ibid para 203-204. legislative reform of legal restrictions, ibid para 193. effective access to relevant and full information on the fetus’ health ibid para 197. The judgment in RR appears to mirror some of the findings in A, B, & C n 12 at para 228. where the Court highlighted areas that needed to be addressed by Ireland; legislative criteria to establish what constitutes ‘a real and substantial risk to life of a pregnant woman, a legal and medical framework that provides for abortion where such a risk exists and the need to address the harsh criminal sanctions for assisting or having an unlawful abortion. ibid. The argument advanced by Ireland in A, B, & C n 12 at para 228. that its policy of restrictive access to abortion was a reflection of the ‘profound moral belief’ of public morals was accepted by Strasbourg as intending to mean ‘the protection of morals’ but not the protection of the ‘rights of others’. n 26 220. Thus, it held that with regard to the first two applicants no violation of art.8 had occurred. This could be interpreted as demonstrating that Strasbourg is avoiding the issue of protection for female reproductive health, due to its reliance on the ‘relativistic margin of appreciation doctrine’ extended to Ireland. n 26 215 Strasbourg has stated its commitment to combatting sex discrimination, but has not established a comparator that may be operated to demonstrate a difference in medical treatment afforded to men over women. ibid 235 emphasis added. There is no male equivalent to a pregnant woman; a fact Strasbourg has failed to recognise under Art.14 of the Convention as a ‘suspect category’. ibid 235. Art. 14 prohibits discrimination on the grounds of sex, yet it can be argued that highly restrictive abortion regimes directly discriminate against women as only women become pregnant therefore different treatment is accorded to women. n 31 at 387. Fenwick contends that Strasbourg has shown a lack of recognition to arguments within human rights literature; that imposing a requirement to travel in order to avail of a termination for health reasons, which may include fatal foetal abnormalities, assails a number of core Convention values. n 26 230-231. In other ethically sensitive contexts, Fenwick points to the willingness of Strasbourg to adopt more expansive concepts of private life, or degrading treatment or discrimination under Art.8 Art. 3 and Art.14, yet appears to be adopting a ‘value-free’ approach to abortion provision. ibid 240 Although Strasbourg has indicated there are limits to States ‘margins of appreciation’ recognising that restrictive abortion regimes have an adverse effect on women, it has missed the opportunity to recognise the persistent effects such regimes create as one of gender-based discrimination on pregnant women. ibid. Chapter 6: An unworkable relationship and creation of conflict: The PLDPA and the 8th Amendment The publication of the Guidance Document a full nine months after the implementation of the PLDP Act came under intense scrutiny by ‘Doctors for Choice’, an alliance of independent medical professionals advocating for the provision of safe and legal abortion in Ireland. They hold the Act to be fundamentally flawed, and argue that the Guidance Document ‘amplifies’ rather than minimises the ‘intrinsic’ flaws inherent in the Act thus reinforcing their view that the PLDP Act is unworkable particularly so in the context of the 8th Amendment to the Constitution. n 4. Doctors for Choice published a list of criticisms and recommended changes which in their professional opinion needed to be addressed as a matter of urgency. ibid. For the purpose of this paper attention will be focused on the criticisms and recommendations in relation to fatal foetal abnormalities. The doctors drew attention to the omission of any provision for abortion unless a risk of loss of life existed thus excluding several areas which they identified as requiring urgent attention in order to prevent serious harm to the health of the mother. ibid. Forcing women to continue with pregnancies where there is a fatal foetal abnormality they believed to have no medical justification, treatment. ibid. 6.1 Accessing an Abortion under the PLDPA The first test of the new Act came in the form of ‘Y’ a young immigrant, who came to Ireland seeking asylum. On discovering she was pregnant, resulting from an alleged rape, she immediately requested an abortion. n 28 86. Assessed by three experts under the terms of the Act, S9 ss (2) (a) (b) (c). ‘Y’ was deemed to be suicidal thus satisfying the prerequisites for a termination. Because of substantial delays between the original request and the formal request, the foetus was considered to be viable. By failing a de facto viability test, the termination was considered impermissible. n 28 86. Under a court order and without her consent, Ms Y was detained in hospital until delivery by C-section at 25 weeks gestation, an action that falls outside the scope of the PLDPA, ss. 7-9 PLDPA. which only deals with medical procedures that result in the destruction of human life. In November 2014, a pregnant women who was admitted to hospital suffering from acute headaches and nausea was declared clinically dead on the 3 December. As she was 15 weeks pregnant at the time of death she was placed on life-support for three weeks as a foetal heartbeat was detected. In the ensuing Court case, n 27. the court, in holding the mother’s condition to have deteriorated to such a degree, thus preventing any possibility of a live birth, ordered the life-support to be switched off. ibid para 61 emphasis added. Both Y and Ms P clearly illustrate the legal conundrum where legislation which holds the presumption of constitutionality is in practice shown to be in conflict with the Constitution. The vagueness of the legal text in X, coupled with section 6.4 of the Guidance Document which compels clinicians to approach the issue of viability ‘cognisant of the constitutional protection of the unborn’, n 7. fails to offer adequate guidance to doctors already wary of the severe penalties for providing a termination outside these legal boundaries. n 28 88. If we examine closely the observation that the deterioration of the mother in P excluded the possibility of a live birth, are we to suppose that if such was not the case would the dead mother have been kept on life-support until a live birth? A scenario rightly described by Dr McKenna as ‘verging on the grotesque’. n 206 para 60. It is therefore imperative that for practical, democratic and legal reasons, constitutional reform is vital. n 27. 6.2 Constitutional Reform: Two Possible Solutions As previously stated, opinion polls continue to show increased public support for a less restrictive approach to Irish abortion law, particularly where there is a fatal foetal abnormality. 'Abortion: Public Opinion' (IFPA ) http://www.ifpa.ie/Hot-Topics/Abortion/Public-Opinion accessed February12 2015. Arguments about ‘political will’ assume that as the electorate has already voted three times on the ‘abortion issue’ there is no possibility for another referendum. Enright and deLondras purport a ‘forward-looking’ argument and offer two possible options for effective reform; a direct repeal of Art. 40.3.30 or a replacement of current provisions with new provisions specifically outlining the availability of abortion in Ireland. n 28 89. (i) Option 1: Direct Repeal While many pro-choice activists support a direct repeal of the 8th Amendment, thus, de-constitutionalising abortion, this in effect would leave the Constitution protecting a general right to life, without explicit reference to foetal life. ibid emphasis added. Thus in any succeeding litigation the Supreme Court would take the referendum result as an indication of the intention to abolish constitutional prohibition on abortion, leaving the structure of abortion law for political settlement. ibid. The X case demonstrates the practical, legal and political challenges that can flow from judicial interpretation so the possibility remains that the Constitution may be held to contain a meaning not intended by repeal campaigners. Therefore Enright and deLondras argue that direct appeal without the insertion of clarifying provisions bears the risk of judicial re-constitutionalisation of abortion. ibid at 90. (ii) Option 2: Repeal and Replacement In order to avoid an overly detailed constitutional provision which could constrain subsequent legislative efforts, a modest approach to replacement provision would appear advisable. This could be achieved by specifically protecting rights to life and to bodily integrity, followed by a secondary provision utilising the ‘Nothing in this Constitution shall…’ formula to unequivocally sanction the introduction of abortion. ibid. This, it is argued, would place the de-constitutionalisation of abortion per se beyond doubt, leaving the exact parameters for the provision of abortion to be established through the political sphere, while allowing for additional revision or reform if required. If this option was adopted, it would reflect the ‘will of the People’ and prevent the State from upholding a law subjected to much criticism from international human rights bodies. It would also place an onus of political responsibility on the State in relation to the availability of abortion in Ireland. ibid. 6.3 Concluding Remarks The Taoiseach has consistently stated that he does not have a mandate to call a referendum to moderate our abortion laws, and the 88% of our TD’s who either abstained or voted against proposals to provide for lawful terminations where there is a fatal foetal abnormality appear to support his view. . For a Senator to express ‘there is no such thing as babies with fatal foetal abnormalities’ is not only a gross insult to women who receive such a diagnoses, but a thoroughly insensitive comment to make, and is indicative of misconceived perceptions surrounding such a diagnosis. http://www.newstalk.com/Renua-senator-says-there-are-no-such-things-as-babies-with-fatal-foetal-abnormalities accessed Dec 1st 2015. Yet it can be argued the high levels of public support for the legalisation of abortion in cases of fatal fetal abnormalities disprove this statement. Modern Ireland is a vibrant multi-cultural society with a more cosmopolitan outlook than that of 1983 or 1992. It is unacceptable that in 2015 Irish women are still forced to travel abroad in order to avail of a medical service taken for granted by millions of women, women who are fortunate to live in a country where their autonomy is respected and they do not face gender-based discrimination in respect of their reproductive health. In order for women to be afforded full autonomy as well as the highest rights to their health, privacy and bodily integrity, a fundamental shift in the interpretation of Art. 40.3.30 is imperative, be that by the Oireachtas or the judiciary. n 28 . 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