IFPA Submission November 2007

IRISH FAMILY PLANNING ASSOCIATION

SUBMISSION TO:

The Department of Justice, Equality and Law Reform; In advance of country submission to United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

November 2007

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Irish Family Planning Association

Introduction

This submission focuses on recommendation 38 and 39, made as concluding comments of the 33rd session of CEDAW.

It is based on the IFPA’s experience as a family planning and counselling service provider. The IFPA provides reproductive health care at its clinics and counselling centres, including non-directive pregnancy counselling, family planning and contraceptive services, medical training for doctors and nurses, free post- medical check-ups, and educational services.

Recommendation 38 states “While acknowledging positive developments in the implementation of article 12 of the Convention, in particular the Strategy to Address the Issue of Crisis Pregnancy (2003) that addresses information, education and advice on contraceptive services, the Committee reiterates its concern about the consequences of the very restrictive abortion laws under which abortion is prohibited except where it is established as a matter of probability that there is a real and substantial risk to the life of the mother that can be averted only by the termination of her pregnancy”.

Recommendation 39 states “The Committee urges the state party to continue to facilitate a national dialogue on womens right to reproductive health, including on the very restrictive abortion laws. It also urges the state party to further strengthen family planning services, ensuring their availability to all women and men, young adults and teenagers”.

It is the IFPA’s view that the state has taken no action to address "the consequences of the very restrictive abortion laws". Moreover, the state actions in a number of court cases highlights the States attempts to maintain very restrictive abortion laws.

The State has taken this position despite substantial Government and NGO polling data suggesting that the majority of the population favours greater access to abortion in Ireland.

In sharp contrast to the State’s policy of a near-total ban on abortion, a national survey of the population (ages 18 - 45), conducted by the State's Crisis Pregnancy Agency in 2003, found that 51% thought that a woman "should always have a choice to have an abortion, regardless of the circumstances, 8% felt woman should never have this choice, 2% had no opinion and the remaining proportion (39%) of participants felt there should be choice in certain circumstances. A 2007 survey of public opinion on abortion conducted by the Safe and Legal Abortion Campaign indicated that 43% agreed with the proposition that termination should be available on the basis of a woman’s right to choose, 69% in situations of rape, and 75% in the case of foetal anomaly incompatible with life. Agreement with the availability of a termination in each of the specified situations tends overall to be higher than average amongst the younger age cohorts (the under 35’s).

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In addition, an Irish Times Behaviour & Attitudes poll on women published in September 2007 a total of 54 per cent of women believe the Government should act to permit abortion. While support was found to be highest among young and single women, a majority of most age groups were found to favour allowing abortion.

There is now a domestic consensus in Ireland which supports liberalising abortion laws, particularly for women in extreme circumstances such as when continuation of pregnancy poses a threat to a woman's health, when pregnancy is a result of rape or incest, or when the foetus is severely malformed. Irish voters have never been given the option of voting for legalisation of abortion. It should be noted that the amendments proposed in the 1992 and 2002 abortion referendums sought to further restrict access to abortion services in Ireland rather enshrine womens reproductive health into the constitution.

It is our view that the State has not facilitated a national dialogue on womens reproductive health and moreover with regard to the abortion issue, the Government has sought to stop a national dialogue taking place rather than facilitate a dialogue.

In support of this claim we refer to the Irish Supreme Court criticism of the lack of guidelines for life-saving and the State failure to legislate on the issues arising from the X case. Miss X was a fourteen year old who was sucidical when she found out that she was pregnant following a rape. The Irish constitution allows abortions to save the life of the woman however because there are still no guidelines such abortions cannot be accessed. Abortion to protect the health of a woman is not permitted under the Irish Constitution.

Moreover abortion is not permitted in cases of rape or incest and that figures published by the Rape Crisis Network, in December 2007, show that during 2006 at least two thirds of women who became pregnant as a result of rape went on to parent their rapists child.

We also refer to the recent ‘Miss D’ case which demonstrated that the State is willing restrict access to abortion services whenever possible. In April 2007, a pregnant woman in her teens known as ‘Miss D’ petitioned the High Court for declarations against the State and the Health Service Executive (Ireland’s social services) in order to allow her to travel to the UK for an abortion. ‘Miss D’ was under the care of the State by virtue of an interim care order. Pregnant and living in care, ‘Miss D’ discovered on 23 April, having attended hospital for a scan that she was carrying an anencephalic foetus: a fatal condition whereby a large part of the skull and brain is missing. ‘Miss D’ decided that she wished to terminate her pregnancy. The Health Service Executive wrote to the police to request that they arrest D if she attempted to leave the country. It also requested that the Passport Office refuse to issue D with a passport. The High Court ruled that ‘Miss D’ could travel abroad for a termination in line with her constitutionally protected right to travel. However, this case sharply illustrates the lack of guidelines and procedures in relation to when an abortion is legally permissible under Irish law.

Following this decision of the High Court rather than facilitate a dialogue on the issues involved the Government again indicated that they would not legislate on the issue.

Similarly following a case brought by an Irish woman, challenging the constitutional ban on abortion to the European Court of Human Rights no national dialogue took

3 IFPA Submission November 2007 place. The woman known as D became pregnant with twins. One of these died in the womb, and the second was found to suffer fatal abnormalities. D travelled to Britain and had an abortion. She argued that having to do so breached her rights under Articles 3 and 8 and 14 of the European Convention on Human Rights. The ECHR ruled on the question of admissibility in this case in 2005 and found that D had failed to exhaust domestic remedies and had not therefore met the admissibility test. Specifically the Court said:

“Indeed, as argued by the Government, the X case illustrated the potential of the constitutional courts to develop the protection of individual rights by way of interpretation and the consequent importance of providing those courts with the opportunity to do so: this is particularly the case when the central issue is a novel one, requiring a complex and sensitive balancing of equal rights to life and demanding a delicate analysis of country-specific values and morals. Moreover, it is precisely the interplay between the equal right to life of the mother and the “unborn”, so central to Article 40.3.3 that renders it arguable that the X case does not exclude a further exception to the prohibition of abortion in Ireland. The presumption in the X case was that the foetus had a normal life expectancy and there is, in the Court’s view, a feasible argument to be made that the constitutionally enshrined balance between the right to life of the mother and of the foetus could have shifted in favour of the mother when the “unborn” suffered from a abnormality incompatible with life. The Court also notes the subsequent rejection (in 1992 and 2002) of the proposed amendments to the Constitution to restrict the effect of the judgment in the X case”

Thus the Irish government argued that it may have been permissible for D to petition the domestic higher courts to obtain a declaration that a termination under her circumstances was constitutionally permissible. The implication, given the government’s refusal to legislate for the ‘X’ case is that the government considers it the duty of the courts to decide these issues rather than the legislature. However, as with ‘X’ even when the courts have defined the constitutionally permissible indications for abortion the government has failed to realise these rights through legislation.

State Assistance The IFPA has observed that the State at times does facilitate access to abortion abroad by providing some individual women with funds or documents necessary for travel. For example, the Department of Justice publicly confirmed that ten female asylum seekers were given permission to travel to Britain for abortion services during 2000-01. However, such cases are determined on an individual, often ad hoc basis. As a result such women often face additional delay, considerable bureaucratic hurdles, and a loss of privacy while obtaining permission to travel. On occasion the State has denied women permission or necessary papers to travel abroad for an abortion, or has delayed to the point when a woman's pregnancy has advanced too far to obtain a legal abortion.

Illegal abortion In recent years Irish police, the IFPA and Reproductive Health Providers have found evidence of a return to illegal, not observed in Ireland since the early 1950's. Such illegal activity has been seen mainly among an immigrant population that faces greater restrictions on travel and often lacks funds. Illegal abortion places women's health and lives at risk and the Government has rightly taken legal action to stop such illegal services.

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Criminalising abortion places a stigma on necessary health care. The fact that abortion is illegal discourages the provision of follow-up care for women returning from abortions abroad and discourages women from relaying their full health history to their doctors.

Strengthening Family Planning Services

With regard to strengthening family planning services and ensuring their availability to all women and men, young adults and teenagers, there has been some progress but the key issues such as the cost of contraception, access to services (especially in rural and disadvantaged areas), confidentiality for teenagers and the availability of emergency contraception without a prescription have either been rejected or not tackled. No new family planning services have been developed. There is still no national sexual and reproductive health strategy.

Some youth health centres have been piloted but questions remain with regard to the confidentiality of these services and whether contraceptive services are provided to all teenagers who require them.

The Crisis Pregnancy Agency has developed a national advertising campaign aimed at promoting contraceptive use but attempts by the Crisis Pregnancy Agency to get the State to strengthen Family Planning Services have not been successful to date.

The number of counselling centres providing counselling to women with unplanned have also increased but most women cannot distinguish between counselling centres which provide abortion information and those who don’t. The lack of regulation of counselling centres that don’t provide abortion information is still a major problem. In this environment “rogue” or “bogus” services which exploit women with unplanned pregnancies continue to thrive.

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