Recently I spoke to a reasonable, sane Irish woman who said that she was against abortion and because she was so reasonable and sane, I was curious what she meant by that. Was she against the morning after pill? Certainly not. What about chemical abortifacients? They did not really worry her too much. So, what about terminations before 12 or 13 weeks, the time when woman are often given the all clear to confirm their pregnancy to family and friends? This woman was not, all things considered, against terminations during this window, when pregnancy is not considered medically certain. She was also, just to make clear, in favour of abortion in cases of fatal foetal abnormality, rape and incest. In 1983 this woman might have voted “against abortion”, despite the fact that she is not against abortion, especially if it happens during those weeks when the natural loss of an embryo is called miscarriage. She just found abortion, in general, hard to vote “for”. Had there been no referendum in 1983 – where people with a range of uncertainties were asked for a single “yes” or “no” – then limited abortion might well be available now in Ireland, in the way that the morning after pill is legally available and widely used.
The 1983 referendum was a little like the Brexit referendum – a population voting about something that seemed, on one side, clear, and on the other, contingent and hard to describe. As it turned out, the language problem worked both ways. In order to bring the issue to a vote, a new legal term had to be minted, one that did not appear in any previous laws. The eighth amendment to the Irish constitution acknowledges the right to life of “the unborn” and this seemed to invent a new category of rights-holder, possibly a new kind of person. By acknowledging the “equal right to life of the mother” an impregnated woman was changed from a human being into a relationship, that of motherhood, and a peculiar equivalence established. Pregnancy was a binary state, in which two souls temporarily shared the same blood supply. The question of who had it first was neither here nor there and a fertilised egg was a grown adult, temporarily inconvenienced by being a few hundred cells large.
How does access to abortion vary across the UK?
The 1967 Abortion Act legalised terminations in England, Wales and Scotland. It permits abortion for non-medical reasons up to 24 weeks of pregnancy and with the permission of two doctors.
Abortion law was devolved to Holyrood as part of the Scotland Act 2016. The SNP has reaffirmed its commitment to current legal protections and to maintaining time limits in line with the rest of the UK.
The 1967 act does not extend to Northern Ireland. Abortion is legal in Northern Ireland only when the pregnancy poses a direct threat to the mother’s life. An amendment by the Labour MP Stella Creasy to allow Northern Irish women access to NHS-funded abortions in England was passed by Westminster in 2017.
The Scottish first minister, Nicola Sturgeon, confirmed that regulations allowing Scottish health boards to provide abortion services to women from Northern Ireland would come into force at the beginning of November of that year.
In July 2019, the UK parliament in Westminster voted to harmonise the laws on abortion and same-sex marriage across the whole of the UK if the Northern Ireland Assembly had not been restored by 21 October.
On 3 October 2019, the high court in Belfast ruled that Northern Ireland’s strict abortion law breaches the UK’s human rights commitments.
In 2016, there were 63,897 live births in Ireland. The medical estimate, according to the American College of Obstetricians and Gynecologists, is that up to a quarter of pregnancies end in miscarriage, which means that around 20,000 conceptions could have failed in Ireland last year due to natural causes. If all life is sacred, then all life did not get the memo.
The pro-life view is taken more from theology than biology. Its supporters in Ireland did not foresee, or did not care about, the medical consequences of their unnatural view – the decisions gone wrong, the danger to the life of the impregnated woman, such as the case of Savita Halappanavar who died of septic shock in a Galway hospital, when a miscarriage could not be treated until the foetal heartbeat stopped.
They did not care about the psychological consequences, and the cruelty of that indifference was hard, as a society, to live with. Arguments about suicide (how to believe her?), about rape (how to believe her?) reinforced the fact that “a mother” could not be in charge of herself, because she had no self in the way we usually understand the word – this was set aside, for the duration. Once impregnated, a woman was reduced to a body, and that body was no longer hers. On the one side we have miracle, on the other, meat.
In March 2014, a refugee Ms Y arrived in Ireland and discovered that she was pregnant as the result of multiple rapes in her country of origin. She had no passport or papers and was turned back at a British port, when she tried to travel there for a termination. Back in Ireland and suicidal, she was told she could be detained under mental health legislation, and she agreed to stay in a maternity hospital instead. There, she went on hunger strike, until delivered by caesarean at 30 weeks. In the years since 1983 we have learned that there is no answer to the question: “How much suffering is too much suffering?” The question is irrelevant because the psychology of the mother is irrelevant, as are social or practical concerns.
Unlike Ms Y, most women are not confined to Ireland and many make the decision to travel to Britain to avail themselves of abortion services there. This is not so much an Irish solution (pretend it isn’t happening) as a middle class one. It depends on people having literacy skills, credit cards, supportive parents if needs be, an amount of spare cash. It is not a solution for people in denial about what has happened to them – the woman who doesn’t want it to be true; the couple who took a chance; the woman who has other issues, who has enough going on, who is depressed, or poor, who has three children already and no time. The girl impregnated by her stepfather, or her uncle, or her father, or by any man who has power over her, or over the people who might help her. The woman unsure of her visa. The woman who is alone, or feels herself to be suddenly and overwhelmingly alone, just now.
Conservative figures from the charity Rape Crisis reveal that 3,265 Irish women went to Britain to procure abortions in 2016. This was down more than 50% from a high of 6,673 in 2001. The biggest shift happened among women in their 20s (those born after the referendum of 1983), with numbers declining more than 60%, from 4,089 to 1,563. Figures may be disputed in this fiercely debated topic, but there is no doubting a significant reduction over the same years in which the general population rose by nearly 25%. A more open and secular society has not resulted in more abortion, but less.
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Pro-life campaigners don’t seem to trust people much, though in my experience people do the best they can. They talk as though floodgates were about to burst open, as though women are naturally opposed to the rights of “the unborn”. But having children is a complicated business, it is not a war. Many children are conceived by accident, or in a state of doubt, and their mothers bring them – half in dread, half in hope – into the world. Other babies are born after long months of their mother’s anguish and incomprehension that her body should be so used – and after her body, her life.
The referendum on abortion was held in 1983, when contraception was also illegal in Ireland. Can you imagine how freaked out that made everyone I grew up with about sex? Do it once, and everything changes. Perhaps this informs the way pro-lifers think about mothers in general, perhaps even their own – that she is always trapped; that we must be saved from her rage, her sense of life’s unfairness, her murderous intent.
There is an overlap of nine months, when the smaller life depends on the bigger, and not the other way around. This is just true. If a foetus dies, the body surrounding it does not die, or not usually. The mother’s life is the more powerful thing. This is very frightening, when you think about it. So, yes, women are very frightening, despite their almost universal willingness to please people, to smile and be nice.
The pro-life movement controlled the terms of the debate in Ireland, so it remained a religious discussion in which all conceptions are fully realised, as opposed to potential, human beings. This is something you either believe or you don’t, but it is difficult to get outside their language, which has the weight of culture behind it. So I want to suggest two small shifts in the words we use. The first is to replace the word “pregnant” with “impregnated”, to restore a sense of causality to a condition that is sometimes seen as self-enclosed. The other is to swap out the phrase “unwanted pregnancy” with its echoes of unwanted gifts, or what used to be called “unwanted advances” or “attentions” (now called harassment), and to use the more radical “pregnancy without consent”.
Sex without consent is a terrible thing, we are all agreed on that. We understand the horror of rape – to have someone inside you for 30 seconds, or 10 minutes, to enter your body without your joyful invitation, this is known to be a terrible violation, a trauma from which it is hard to heal. We see the power dynamic here. We imagine, or remember, the pain inflicted and the pleasure taken, and we condemn the act absolutely. But this sense of drama – of a battle of wills – is also a distraction from an ethical argument that might be made about your body: who gets to use it, and on what terms.
If a conceived embryo is already, and instantly, a full human being, this raises questions about what human beings can do to each other, and why. This is not the way I usually think – my thoughts about abortion are always uncertain and, I hope, slow to judge – but if you want an absolute argument about all this, then here it is. What right does another human being have to be inside your body for the best part of a year, to make their way out of your private parts in a bloody, difficult and painful way, and then turn to you for nourishment, not to mention love – perhaps for the rest of your life?
In the nine months occupation that is a pregnancy, the embryo has no agency, it doesn’t mean to be there, and no intention to cause harm. But an absence of intention does not confer any rights. Just because someone does not mean to use you does not give them the right to use you. The fact that an embryo can not ask for consent does not mean that consent must be given. An embryo takes no pleasure from its presence in your body, but this does not give it ownership of your body any more than a grown man has ownership over your body’s interior. The hidden fact in the eighth amendment is that the term “unborn” does not mean “human being” as the mother is a human being – if it did then the mother’s rights might also be asserted. The “unborn” here is code for “biology”, “happenstance” or “life itself”.
It may be argued that when a woman consents to unprotected sex she is also consenting to carry any resulting pregnancy to term, but I do not know if you can make an agreement with someone who does not yet exist. The hidden power, in this contract-with-no-one, lies not with the physically powerless embryo, or the legally powerless pregnant woman, it lies with the father, or with the father-as-state, who asserts control, from a sometimes indifferent distance, over both.
This argument may sound slightly absurd, not to mention harsh, but it is exactly as harsh and as absurd as the eighth amendment to the Irish constitution, which is widely understood without making any sense.
In 2016, people in Britain and the US voted for the tribal and the symbolic when they went for Brexit and for Trump. We know something about all this in Ireland because we had a tribal, symbolic vote in 1983. We saw the cruelty of that symbolic choice play out in our hospitals, and airports, and in our lives for more than 30 years. We know how debilitating it is to argue with the religious right and how wounding it is to face down their trolls.
If we, in Ireland, can repeal the eighth amendment, that shift will echo around the world. It will be heard in El Salvador, where women have been imprisoned for the natural loss of their babies, it will be heard in those Australian states where abortion is both available and illegal at the same time, it will be heard in Poland where 30,000 people marched against the further restriction of abortion laws, and won. It will be heard in the US, where state by state the rights conferred by Roe v Wade are being whittled away to the especial detriment of poor women; women who own little or nothing, not even the body in which they walk around.
The message it will send is not just about women’s right to choose, it is about how countries work. Democracies must also be allowed to change.
• Repeal the 8th, edited by Una Mullally, is published by Unbound.
