The right to life is a fundamental human right. It is expressly recognised under Article 40.3.2 of the Irish Constitution which states:
‘The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.’
The right to life is also guaranteed by a wide range of European and international treaties to which Ireland is a party.
Despite Ireland’s obligation to protect women’s lives, the current wording of the Constitution under Article 40.3.3 threatens the lives of pregnant women* because it pits the woman’s right to life against the “equal right to life” of the unborn. The juxtaposition of two “equal” rights to life under the Constitution creates uncertainty about when doctors may intervene to save the life of the pregnant woman.
Following the deaths of Sheila Hodgers in 1983, Savita Halappanavar in 2012, Michelle Harte in 2010, and the European Court of Human Rights ruling in A, B and C v Ireland in 2010, the Oireachtas enacted the Protection of Life During Pregnancy Act 2013 (PLDPA).
The PLDPA permits abortion in cases where there is a “real and substantial risk of loss of the woman’s life” arising from physical illness or intention to commit suicide which can only be averted by a termination of pregnancy.
However, the UN Human Rights Committee and medical professionals in Ireland have emphasised that it is not clear what a “real and substantial risk of the loss of the woman’s life” means and that the PLDPA is therefore difficult to apply in practice.
Dr Rhona Mahony, Consultant Obstetrician and Gynaecologist, has stated that:
‘Waiting for a woman to be sufficiently ill so that she is perceived to be at a risk of dying is potentially dangerous… Firstly, it assumes that we can accurately predict the risk of dying. Haemorrhage, infection, heart disease, liver disease and a host of other disorders can make you very ill but they can also kill you. It is not always possible to predict clinical course with precision.’
She has further stated:
‘In medicine we deal with probability informed by available clinical evidence and experience. Doctors may rarely be certain that a pregnant woman will inevitably die as a result of her pregnancy.’
Psychiatrists in Ireland have also acknowledged that, at present, the ability to obtain a lawful abortion where life is at risk through suicide depends on the views of professionals who may disagree and delay, causing profound anguish to women and girls. Perinatal psychiatrist Prof Veronica O’Keane has acknowledged that assessing abortion through the Act is a “lottery” which depends on the psychiatrists who assess the distressed woman or girl. She states:
‘Some psychiatrists are anti-choice and won’t certify a woman in need of an abortion. Some will refuse to use the Act on the basis of conscientious objection.’
The penalty of up to a 14-year jail sentence for unlawful abortions under the PLDPA is also likely to make some doctors reluctant to provide abortion care even in circumstances that the legislation technically allows for.
* all of our references to women should be understood to include women, girls and people of all genders and none who can become pregnant