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offsite link Welcome to the New Tax Avoidance Scheme, Same as the Old Tax Avoidance Scheme Mon Oct 20, 2014 16:26 | Michael Taft

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Human Rights in Ireland
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offsite link The Extraordinary Synod in Rome. Will it bring extraordinary times? Wed Oct 22, 2014 07:09 | GuestPost

offsite link A new Constitutional Settlement for Northern Ireland: Queries from International Law Mon Oct 20, 2014 10:27 | Aoife O'Donoghue

offsite link Why Budget 2015 must be that last of its kind Fri Oct 17, 2014 08:36 | Liam Thornton

offsite link Socio-Economic Rights & Budget Analysis: Some Notes on Available Resources, ?Progressivity? and Non... Thu Oct 16, 2014 11:55 | Liam Thornton

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GuestPost - Wed Oct 22, 2014 07:09
We are pleased to welcome this guest post from Leonard Taylor. Leonard is a PhD candidate at the Irish Centre for Human Rights, NUI Galway. His research topic is on Catholicism and human rights. You can contact him l.taylor3[at]nuigalway.ie From October 5 ? 19th an Extraordinary Synod of Catholic bishops called by Pope Francis took(...)

We are pleased to welcome this guest post from Leonard Taylor. Leonard is a PhD candidate at the Irish Centre for Human Rights, NUI Galway. His research topic is on Catholicism and human rights. You can contact him l.taylor3[at]nuigalway.ie

From October 5 ? 19th an Extraordinary Synod of Catholic bishops called by Pope Francis took place in Rome to look at issues concerning the family. It will provide the Catholic Church with a preliminary text to prepare and orientate the discussion for a General Synod in October 2015. Some time ago Pope Francis described the Church as a field hospital and in that spirit it would appear, the Extraordinary Synod has pursued its work. The Synod covers a number of salient areas relevant to human rights advocates and it highlighted areas for concern and rapprochement.

The content of the discussions by the Bishops addressed the wider family experience of Catholic people, including those living in civil unions, same sex couples and those who are divorced and remarried, are found in the text of the ?Relatio post disceptationem? [original text here, revised text, final text], a document released midway through the Synod [13th October, 2014] which summarised the views of the Synod Bishops and is meant to guide the deliberations for the rest of the meeting and also to provoke general discussion. Therefore, the Relatio is not doctrine or dogma or a decree and there may be difficulties with the translation. There is no doubt that the document will be clarified, will include references from Scripture and natural law and will be given a place in the wider context of Catholic doctrine on these issues.

The Synod has offered a number of hopeful signals that the experience of gay and lesbian people in the church has caused a period of reflection.   Initially, the positive tone was presented in the original document?s paragraph heading ?Welcoming homosexual persons? and began by affirming that ?homosexuals have gifts and qualities to offer to the Christian community? [Relatio no. 50]. However, this was changed to ?providing for? homosexual persons in a revision of the text later during the Synod. The original document asked rhetorically (revised text in square brackets) ?are we capable of welcoming [providing for] these people, guaranteeing to them a fraternal space [of fellowship] in our communities?? It recognises in same-sex relationships many ?cases in which mutual aid [assistance] to the point of sacrifice constitutes a precious [valuable] support in the life of the partners? [Relatio no. 52]. It also ?emphasises ?that the needs and rights of the little ones? who are part of same-sex families ?must always be given priority? [Relatio no. 52]. Such revisions are clearly part of the ongoing process of discussion and evaluation at the Synod but they come with the weight of expectation from those who would welcome a holistic portrait of the lives of the people under discussion. In the conclusion of the Synod Pope Francis in his speech mentioned the word ?welcome? again in a broader context and stated to Catholic bishops, ?I was wrong here, I said welcome: go find them? (Ho sbagliato, qui. Ho detto accogliere: andare a trovarle).

Human Rights and Catholicism

Human rights and Catholicism is a regular subject of academic study [e.g. here and here]. It has certainly been as a paradoxical companion to human rights advocacy, being both a supporter and an adversary depending on the issues concerned. In the 19th century it was hostile to rights ideas but this has shifted considerably. Historically, rights language may be found in Catholic social teaching, for example Rerum Novarum (1891), Quadragesimo Anno (1931), and Divini Redemptoris (1937) (no 27). Principally, Pacem in Terris (1963) mirrored the human rights movement significantly in promoting civil and political rights and added the helpful gravitas of Catholicism to the nascent human rights vision in those early years.

The understanding of the individual and the family in human rights and that offered by Catholicism might be determined as very different (see for instance Familiaris Consortio and here). The development of law regarding the family and the right to privacy by European Court of Human Rights and complemented by standards and legislation from the Council of Europe and European Parliament, leads us to the view of two different perspectives of human rights. Relationships which had been considered outside the scope of family life have seen a gradual inclusion into the definition regardless of marital status, be they a single parent household or an unmarried couple with children [Marckx v. Belgium, 1979 and also Johnston v. Ireland, 1986]. Families which are separated for various reasons are also included under the protection of Article 8 of the Court [Berrehab v. the Netherlands, 1988 and also Kroon and Ors, 1994]. The decriminalisation of homosexuality [Dudgeon v. UK, 1981 and. Norris v. Ireland, 1988], properly began the gradual accrual of rights for LGBT people.

The move to recognise civil marriages for same-sex couples will be viewed by some as a departure from a shared idea of the nature of marriage and family life between the perspective of Catholicism and a human rights standard (for the official Catholic view see Compendium 215-218). This is a significant shift in the joint understanding of the nature of marriage and family life. It will be of concern as to how a change will impact on the relationship between human rights and Catholicism in the long term and cannot be truly greeted with indifference. Alternatively of course, this can be seen as a broadening out of further legal protections for citizens of Ireland while retaining respect for the social value which Catholicism places on marriage and family life within that potentially wider legal framework. The ambition of such law is not to imprint such values on to Catholicism but to recognise the social (and moral) pluralism which exists within the jurisdiction of the each State and to balance various concerns for family life and privacy as presented to it. Ideally the legal framework of human rights ought not be deferential to any particular set of values but only afford the protection of the law and to establish the duty of the State concerned. This is separate from determining a hierarchy of values which attributes merit or moral value to various relational arrangements that may exist in society. The Catholic Church has always insisted on a hierarchy of values which places the spiritual identity of the person above those (or as a grounding for) other important values. Such hierarchies are the responsibility of actors in the public sphere, which includes politics and religion. They can and do determine the boundaries of law which will lead undoubtedly to significant debate in Ireland about civil marriage.

The struggle to understand the balance of rights, particularly where personal identity is concerned or how they may trump each other remains mercurial. More recently the European Parliament offered a road map of standards ?against homophobia and discrimination on grounds of sexual orientation and gender identity? (2014) here and the Council of Europe?s ?Combating discrimination on grounds of sexual orientation or gender identity? (2011), see here and a useful study. The balancing of rights in terms of protection from discrimination for these various moral and social perspectives, and what constitutes private life, family life and marriage, is one of the ongoing challenges which will require the need to apply great care. The non-discriminatory value inherent in human rights is an important tool in balancing multiple interests. This is an ideal that is unsuspectedly echoed in the texts of Catholicism (see Gaudium et Spes (1965), no 29) but also with concern of the misuse of non-discrimination ideas (see Evangelii Gaudium (2013), no 255). The effort to understand this balance cannot alone come from political will.

Conclusion

How might these new winds of change in Rome affect the presentation of human rights law in the current context? Certainly, the debate happening within Catholicism is of a moral and religious character which may have little impact on international law directly. The protection of human rights gained in law will imply avoiding a row-back on particular liberties granted to various forms of families. This recent Synod has shown a style of engagement that endeavoured to be open to recognition of the multifaceted experience that exists within a world-wide religion and that is also wrestling with our complex human reality. It points to a religion that may not only hold particular truths about life but also learns them as well.   This Synod will indeed contribute to the dialogue about the nature of civil marriage in Ireland and may also bridge the space between human rights and religion rather than increasing it.

Human rights even with its many successes has plenty of detractors and cynics who might view the whole project without propose or too indeterminate to define and thereby justify. It has a paradoxical interlocutor in the human rights project. Catholicism may object to some of the goals of this unfinished project but it does not reject them all and may indeed take the lead from time to time. Catholicism remains the leitmotif to the human rights ideal for many and will no doubt continue to be so.

Aoife O'Donoghue - Mon Oct 20, 2014 10:27
This post was jointly written by regular contributor Aoife O’Donoghue and Ben Warwick. Ben is a Graduate Teaching Assistant and PhD candidate at Durham Law School. His research centres on resource constraints and the implementation of economic and social rights.  The starting gun has been fired on constitutional debate in the UK. The prospect of Scottish independence, potentially increased(...)

287px-Uk_map_home_nations (1)This post was jointly written by regular contributor Aoife O’Donoghue and Ben Warwick. Ben is a Graduate Teaching Assistant and PhD candidate at Durham Law School. His research centres on resource constraints and the implementation of economic and social rights. 

The starting gun has been fired on constitutional debate in the UK. The prospect of Scottish independence, potentially increased powers for devolved governments, a new English Assembly, a re-formed relationship with human rights and a reformulation of the relationship with the EU, are all being more or less vigorously discussed. Whilst there has been some public debate about the constitutional issues facing the UK, there remain a number of covert agendas. Each of these agendas represents both threats and opportunities for Northern Ireland. The tendency to define constitutional changes by reference to internal factors is a misguided one. Such an approach neglects the significant external implications of internal debates. Rather, changes to the UK’s constitutional settlement must be situated in the broader regional and international political and economic context. The realities of modern globalisation and commerce, mean that external bodies and countries are both influenced by, and influencers of, ?internal? debates and thus cannot be ignored.

For England, and the UK, the electoral fortunes of the Conservative party lurk beneath the surface. Under threat from UKIP, and in arguably long-term decline, the Tories have sought to both capitalise and stave off threats from the Right. The party have undoubtedly seen an opportunity to separate unpopularity in Scotland (the party has just one MP out of 59 potential seats and in contrast to Labour), from relative success in England. Significant devolution to an English Assembly would likely leave the Conservatives (or at least the right of British politics) with a majority. This opportunism can explain changes of heart on devolution.

In Scotland, the covert agendas belong(ed) to the markets. Dominant economic actors vocally campaign(ed) against independence on the basis that it would harm jobs and the prosperity of Scots. This was an important consideration for many, but for the Boards of Directors and CEOs making the threats it was not the primary motivation. Rather, the continued profitability and favourable tax regime for corporations were the unspoken motivation for such a fight against Scottish independence. Companies were concerned, not with the general welfare of the Scots, but with the potential disruption to their healthy profits.

As ever for Northern Ireland, much remains unsaid. There is fear of covert and/or incremental changes that erode cultural identities and (Unionist/Nationalist) identity politics remain an on-going and dominating factor in debates. Besides the internal ?blockages?, there are also external implications including repercussions for Northern Ireland?s voice in debates on human rights, economic powers, and the division of power in the UK. This is crucial, as a strong voice within the UK affects the province?s capacity to deal with the issues of austerity, social security, rural and urban poverty, policing and employment.

At the Conservative Party Conference in October there was a clearly voiced intention to introduce changes to the UK Human Rights Act (HRA) and the relationship with the European Convention on Human Rights and the associated European Court of Human Rights. It was stated that if changes to that relationship could not be made, a Conservative Government would withdraw from the Convention. As has been noted elsewhere this is a particularly pertinent issue for Northern Ireland as the Good Friday Agreement places the introduction of the HRA as central to its settlement.  Under the settlement the UK agreed to:

complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention,  including power for the courts to overrule Assembly legislation on grounds of inconsistency.

The Irish Government, in return, agreed to incorporate the ECHR into its law and there is no suggestion of a change. The Good Friday Agreement is partially a bilateral agreement between the UK and Ireland, the Conservative proposals would, if enacted, violate international law. Besides legality, courtesy would require the UK to consult with Ireland about such changes, perhaps with a view to releasing Ireland from its obligations. Given that there was a vote in both the Republic and Northern Ireland on the Good Friday Agreement, it is perhaps democratically questionable to change its terms without consulting both constituencies again.

Bordering on the EU

Of further consideration is the potential of the UK leaving the EU and its impact. As the Republic is outside Schengen there is little problem with the open status of the Ireland-UK border. Without wishing to ape the rather ridiculous depictions of what a border with an independent Scotland would look like, should the UK leave the EU and Ireland enters Schengen, it would make the open border problematic. In particular with a dominant aim of UK political actors being to stop inward migration, the border could not be as porous.  Whilst the Irish are (legally) not to be treated as ?foreigners? under the Ireland Act 1949 other EU citizens entitled to continue to come to Ireland may pose practical and political difficulties. Further, the entitlement of those born in Northern Ireland to dual citizenship is problematic. If an individual chose to register for an Irish passport they would be able to maintain their EU citizenship even if the UK left. This would be in stark contrast to other UK passport holders in Scotland, England or Wales.

Leaving the EU would also impact upon the Transatlantic Trade and Investment Agreement currently being negotiated with the USA. While there is not space here to discuss the many problematic elements of this trade deal, a UK that sat outside of the EU would leave Northern Ireland without preferential access to the USA. Leaving the EU would also put the UK in an entirely different position within the World Trade Organisation. While currently the UK is an individual member, all of its negotiations are conducted as one EU block. Therefore while the UK would stay as a member of the WTO, it would negotiate as a standalone state rather than part of the world’s biggest market. Again, as the Republic would remain part of the EU’s block in the WTO, it would maintain the many and varied benefits that the EU maintains due to its global economic power.

Goodbye Good Friday

A further indication of the external nuances of the UK?s current constitutional soul-searching lies with border polls. Whilst there has been much talk of a border poll in Northern Ireland, this has largely neglected the voice of the Republic. The Good Friday Agreement mandated a right to self-determination for the people of the Republic in the following terms:

it is for the people of the island of Ireland alone, by agreement between the two parts respectively and without external impediment, to exercise their right of self-determination on the basis of consent, freely and concurrently given, North and South, to bring about a united Ireland, if that is their wish, accepting that this right must be achieved and exercised with and subject to the agreement and consent of a majority of the people of Northern Ireland.

It is by no means certain that a vote in the Republic on the matter of unification would bring about a majority of yes voters. No vote took place when East Germany rejoined West Germany, partly because the German Constitution never gave up its claim to all of its territory. The Irish situation differs as a result of the changes to Articles 2 & 3 of the Irish Constitution. Further, it was by no means certain that the West Germans would vote to integrate their East German neighbours. The requirement of self-determination for North and South would mean that even if Northern Ireland voted for a unification of Ireland, there would be no certainty of a united Ireland

There are undoubtedly significant international effects that flow from a renegotiation of the UK?s constitutional position(s). Yet the current internalised approach to considering the constitutional issues is masking the broader effects. From human rights, to the EU, to the TTIP and the Good Friday Agreement, there are significant ramifications that urgently need discussed. Having these debates by reference to the Conservative Party?s self-interest, economic hegemonies, or identity politics can only lead to a transient conclusion to the international issues.

Liam Thornton - Fri Oct 17, 2014 08:36
Human Rights in Ireland welcomes this guest post from Yvonne O’Sullivan of the Free Legal Advice Centres (FLAC). Yvonne is Advocacy and Policy Officer in FLAC. Speculation on budget measures had circulated in media outlets in the final days before Budget 2015. Reports before the budget abounded that the architect group, the Economic Management Council(...)

FLACHuman Rights in Ireland welcomes this guest post from Yvonne O’Sullivan of the Free Legal Advice Centres (FLAC). Yvonne is Advocacy and Policy Officer in FLAC.

Speculation on budget measures had circulated in media outlets in the final days before Budget 2015. Reports before the budget abounded that the architect group, the Economic Management Council (of Taoiseach, Tánaiste, Minister for Finance and Minister for Public Expenditure and Reform), had signed off on a suite of complimentary tax measures, benefiting lower to middle income earners as well as committing to investing in social housing stocks which were made real on budget day, Tuesday 14th October. Most people would agree that these are welcome measures, especially in the wake of serial austerity budgets, but how the Council reached such decisions deserves some attention.

As an example, let?s look at water charges. Huge public opposition to these new and significant charges, manifest in last Saturday?s mass demonstration, reportedly triggering the EMC to build into the budget a degree of financial support for those unable to pay for their water usage. Although these supports will aid some social welfare recipients and low income earners to pay for their water services, it is ultimately an extra cost which is not fully offset from the income gained in the reductions in USC and the income tax rates.

However, we have to ask why the government has only now taken on board the concerns of the public around affordability, when these water charges were announced last year in Budget 2014? Surely the time to assess the impact on the public would be from the time the government started planning to introduce the charge? Why would you wait until the Budget Day, after months of stress and worry for ordinary householders, inflamed by rumour on possible waivers and cost, and especially after the charges have already begun? Have these new charges made it impossible for people to live in dignity? Will water supply be adequate, affordable and accessible after charges are introduced? Has the state done an impact assessment on introducing these charges?

The fact that we cannot answer some or indeed any of these questions exemplifies the problems at the heart of budget decision-making. It reveals a lack of a clear and considered approach by government to reaching such hugely important decisions. As a legal rights group with a focus on basic human rights, FLAC has been advocating for an alternative approach that could provide fairer outcomes and in particular avoid disproportionately impacting on vulnerable groups – and in such a way that is clear to all affected on how exactly such decisions are reached.

A human rights-based approach to budgeting relies on certain key principles of human rights law such as consultation, transparency and accountability. At present, there is a pre-budget consultation process between one government department ? the Department of Social Protection – and civil society groups; other departments invite no consultation at all. Clearly much needs to be done; budgeting is a year-round process and each department needs to regularly consult with groups on the ground as to what budgetary measures are useful or potentially damaging.

Budget 2015 did not promote an adequate standard of living through the social protection system specifically looking at the rates of payments ignoring the State?s human rights obligations under a variety of human rights treaties to ?progressively realise? all economic, social and cultural rights even in times of recession and economic recovery. No impact assessment has been published yet on what effect maintaining the current rates of social protection for those dependent on the State would have.

But instead of a clear, transparent budget process, we had well-planned leaks intended to gauge public support – but not before the decisions have been rubber-stamped and certainly not seeking public input. How can this be an appropriate method to ensure that budget decisions are fair and appropriate and that they have ?buy-in? from the general public?

All budgetary measures have implications for realising human rights, therefore budgetary processes and decisions have to reflect how these rights have been considered.  Along with a host of other civil society organisations working on the ground, FLAC is calling on the government to use a human rights framework for budgeting. We are asking the State to put the issues of adequacy, affordability and accessibility at the heart of its thinking on public spending and access to public services; we are saying that the State must meet its duty to protection a minimum core for the right to adequate housing, the highest attainable standards of health, social security, fair wages and education; and to safeguard in particular the rights of people with disabilities, minorities, children and elderly people.

FLAC held a post-budget seminar, Fairer Budget Fairer Society: A human rights analysis of Budget 2015 from Irish civil society on 16 October. This seminar built on the understanding of a human rights approach to budgeting and revealed civil society?s view on how the budget has considered human rights concerns through a survey of organisations? responses to Budget 2015. More at http://bit.ly/fairbudget2015

Liam Thornton - Thu Oct 16, 2014 11:55
Human Rights in Ireland welcomes this guest post from Dr John Reynolds. John is a lecturer in law in NUI Maynooth. These are John’s notes from the Free Legal Advice Centres (FLAC) seminar Fairer Budget, Fairer Society: A human rights analysis of Budget 2015 from Irish civil society held today, 16 October 2014.  We are(...)

FLACHuman Rights in Ireland welcomes this guest post from Dr John Reynolds. John is a lecturer in law in NUI Maynooth. These are John’s notes from the Free Legal Advice Centres (FLAC) seminar Fairer Budget, Fairer Society: A human rights analysis of Budget 2015 from Irish civil society held today, 16 October 2014. 

We are all too aware of the immediate and cumulative impacts that relentless austerity budgets have had on people in Ireland over the last seven years, with the brunt of that austerity disproportionately meted out on working class communities, low-income families and those most in need of social protection. Structural adjustment during that time has been implemented in keeping with right-wing thinking, coming in the form of a 2:1 ratio of cuts in services to tax increases (themselves often regressive in nature). Levels of poverty and inequality have deepened. Socio-economic protections have been resolutely subordinated by the state?s loyalty to financial institutions and the imperatives of transnational capital. There has been no departure from the race to the bottom for foreign investment in which Ireland is engaged, with the diversion of resources to corporate tax reduction measures continuing in various guises.

In the face of such market hegemony, what can international human rights discourse offer when it comes to social justice advocacy and budget analysis?

The distribution of housing, healthcare, education and water is rooted in the underlying struggle for resources between sectors of society, over which ideological lines are drawn and public policy is formulated. Rights to housing, healthcare, education or water, therefore, cannot be limited to narrow formalistic conceptions of justiciable legal claims. Implementation of the state?s obligations under international human rights treaties pertains as much to the legislative and executive branches as it does to the judiciary. All the more so when it comes to the International Covenant on Economic, Social & Cultural Rights, where constitutional protection for the rights that Ireland has pledged to uphold remains distinctly lacking. Deploying the language of socio-economic rights in this sense is best understood as one tactic within a broader strategy of progressive or radical politics aimed at distributive justice.

In this context, the increased attention devoted to budget analysis and fiscal policy in recent times by human rights organisations, UN Special Rapporteurs and legal scholarship is an important step in opening up the political space to socio-economic rights discourse. This is set against the backdrop of an evolving conversation on the need for a radical transformation from mainstream economics to the assertion of control over the market for social benefit. It is important to be clear from the outset, however, that the field of human rights itself is coming from a low base in this regard. International human rights mechanisms and bodies have traditionally maintained an agnostic approach to the choice of economic model, and as such have been weak in confronting financialisation and the neoliberal economic order. In 1990, at a watershed moment for the global expansion of neoliberalism, the UN Committee on Economic, Social & Cultural Rights took the opportunity to clarify that ?in terms of political and economic systems the Covenant is neutral and its principles cannot accurately be described as being predicated exclusively upon the need for, or the desirability of a socialist or a capitalist system, or a mixed, centrally planned, or laisser-faire economy, or upon any other particular approach.? While some inroads have since been made by UN Special Rapporteurs at least acknowledging that the policies of the World Trade Organisation can have negative consequences on social rights, for instance, an overarching ?trade-related, market-friendly paradigm of human rights? has implied acquiescence to the prevailing economic orthodoxy and its steady erosion of labour rights standards and public services.

Those structural constraints notwithstanding, there are strands of international human rights law and discourse that can inform a more progressive approach to budgetary policy when it comes to the state?s obligation to devote the ?maximum of its available resources? towards the realisation of economic, social and cultural rights. The Committee has stated that ?the ?availability of resources?, although an important qualifier to the obligation to take steps, does not alter the immediacy of the obligation, nor can resource constraints alone justify inaction?, and that ?even in times of severe resource constraints, States parties must protect the most disadvantaged and marginalized members or groups of society.? These ?minimum core? obligations are supplemented by an ongoing commitment to progressively realising the full range of economic, social and cultural rights for all.

A principle of non-retrogression has been constructed accordingly, under which retrogressive measures imposed in a developed economy should be almost impossible to justify. Aoife Nolan has suggested, however, that the past failures of the Committee on Economic, Social & Cultural Rights in clearly marking out the parameters of retrogressive measures (as well in engaging with issues around privatisation) have limited the capacity of social justice campaigners to contest specific budgetary moves as violations of the Covenant. The Committee?s practice does finally appear to be moving on this more recently though, perhaps prompted by the work of several Special Rapporteurs with mandates over socio-economic rights who have gone furthest in developing the normative framework around tax, fiscal and budgetary policy as it relates to available resources and non-retrogression.

Among the more progressive authorities in this regard have been Magdalena Sepúlveda as Special Rapporteur on Human Rights and Extreme Poverty, and Olivier de Schutter in his capacity as Special Rapporteur on the Right to Food. Before finishing her mandate earlier this year, Sepúlveda built on her previous examination of fiscal contractions and cuts to social protection systems as deliberately retrogressive measures in an investigation that emphasised of the critical role of fiscal policy, and particularly taxation policy, in tackling inequality and vindicating socio-economic rights. She highlighted, among other things, the needs to: increase reliance on direct and personal taxes on income; move away from indirect and regressive taxes on consumption; design taxes so as to that reduce regressive impact and gender inequalities, including in relation to unpaid care work; ensure that public revenue raised from the financial sector is commensurate to the sector?s profitability and the risks it generates; implement a financial transaction tax; and ensure that affected communities and future generations are protected in the exploitation of natural resources, with extractive industries taxed sufficiently.

De Schutter made submissions to Sepúlveda as part of this process, in which he reinforced the importance of raising taxes as a means available to states to progressively improve access to socio-economic rights, and warned of the converse negative impacts in allowing tax avoidance and tax incentives to foreign investors. He pointed out that a ?regressive system of taxation seriously limits the redistributive aspect of [social] programmes?, concluding that in such circumstances a state is inherently failing to deploy the maximum of its available resources to the realisation of socio-economic rights. Another notable submission to Sepúlveda from the Independent Expert on the Effects of Foreign Debt on Human Rights emphasised that:

policy-based loans and debt relief from the international financial institutions typically require the borrower countries to implement a range of economic and fiscal reforms including the introduction of a value-added taxes and other regressive taxes, as well as tax holidays for foreign corporations. Although the ostensible aim of these policies is to promote economic growth and restore the debt servicing capacity of borrower countries, research indicates that they, in fact, have a negative impact on the realization of human rights over the longer term and that they have contributed to increasing poverty and marginalization among the poor in debtor countries.

These findings of the UN special procedures have been supplemented by academic analysis which suggests that counter-cyclical tax policies (to manage the periodic structural crises which are endemic to capitalism) are necessary to uphold the principle of non-retrogression.

The lack of adherence to principles of non-retrogression and tax justice in successive austerity budgets in Ireland since 2008 has been well documented. The Centre for Economic and Social Rights, for instance, highlighted the explicit priority given (in the National Recovery Plan 2011-2014) to ?drastic cuts in social expenditures over progressive tax reforms in a country ranking among the lowest in Europe in terms of overall tax levels.? Budget 2015 appears to stem the tide in terms of those drastic cuts (although the estimates provided by the government suggest that ?real? public spending?factoring in inflation?will continue to decrease through to 2018), but remains problematic from a social justice perspective when it comes to tax policy. Finance Minister Michael Noonan made reference in his Budget 2015 speech to the ?progressivity? of the Irish tax regime. The Department of Finance has repeatedly emphasised, even in the context of previous austerity budgets, that it equates the existence of income tax ?progressivity? with a normative concept of ?fairness?. This focuses on one component of the tax system only, and fails to account for the trend toward taxes and charges that are regressive in character; that is, indirect taxes such as water charges or VAT increases, which are not progressively scaled according to concepts of equality or ability to pay. From a socio-economic rights perspective, such a shift to indirect taxation may not be ?fair? (the continuation of general ?progressivity? in the income tax regime notwithstanding) and may be retrogressive in effect.

In the context of Budget 2015, the net impact of newly introduced regressive water charges and the way in which income tax reductions are scaled means that those at minimum-wage level will benefit least in real and relative terms. Many of those earning between ?15,000 and ?35,000 will be actually be left in a worse financial situation overall next year. Those earning ?70,000, more than double the average wage and falling within in the top 10% of income distribution, will benefit most in relative terms from the budget. The choice to devote available resources to reducing the higher rate of income tax has left social justice campaigners understandably ?outraged?, and dilutes the progressivity of the income tax system.

The tax credits and benefit allowances offered as sweeteners to reduce water charges slightly does not alter the fundamentally regressive nature of the water tax, and fails to answer broader questions about the government?s decision to turn water into a commodity. As experience elsewhere has shown, it can be a very quick and slippery slope from commodification to privatisation. This is all the more the case in an international trade and investment climate that seeks to create increased ?market access? to natural resources and public services, as exemplified in Europe?s case in the Transatlantic Trade and Investment Partnership currently being negotiated with the United States. In this regard, the likelihood of commodification and privatisation amounting to retrogressive steps in the state?s fulfilment of the right to water must be weighed. In resisting these steps, as Paul O?Connell explains, the Right2Water campaign?s use of the language of rights to assert that water is??a public good that should be funded through general taxation, available to all on the basis of need, and protected from the vicissitudes and inequities of the market? is more than a mere appeal to a legal provision; it?is ?a rejection of the idea that there is no alternative to the commodification of essential services and resources.?

Questions around budget deficits, borrowing and debt have garnered increased attention of late from international human rights mechanisms. A substantial chunk of the Irish state?s resources continue to be directed to interest repayments on the national debt, which includes socialised commercial bank debt. The work done under the mandate of the Independent Expert on the Effects of Foreign Debt on Human Rights, in particular in relation to conceptions of illegitimate debt, provides interesting tools with which to analyse the allocation of available resources to accumulated debt in relation to socio-economic rights obligations. Against the sense of a prevailing ?dictatorship of no alternatives?, we have seen that it is possible to imagine radical alternatives in this sphere. Argentina recently passed legislation to conduct a public audit of its national debt with a view to assessing whether it is composed of any illegitimate or odious debt. Countries such as Ecuador and Norway have cancelled debt previously on the back of similar investigations. And just last month, the UN General Assembly adopted a resolution on the ?establishment of a multilateral legal framework for sovereign debt restructuring processes?, aimed at preventing debt crises and financial speculation from undermining socio-economic rights in developing countries in particular. It was adopted by 124 votes in favour to 11 against. Despite our own harrowing debt crisis experience, Ireland voted in the minority with the global financial centres of Britain, US, Germany and Japan. This is telling of where the current government?s loyalties and solidarities lie, and of its attitude to financial creditors and socio-economic rights respectively.

A final point worth noting pertains to the norms of transparency and participation that international human rights standards require of a budgetary process. The Economic Management Council was created in the context of an ?unprecedented national economic emergency? that necessitated ?strong, resolute leadership.? This so-called ?super-cabinet? structure was mandated to meet on a weekly basis to oversee key economic, budgetary and banking matters. Operating as ?the equivalent of a war cabinet?, it is open to obvious critique as a further concentration of executive power, utterly lacking in democratic accountability and treading on precarious constitutional terrain. It was accepted by establishment commentators, however, as an exceptional, but temporary, necessity. In line with the tradition of the exception becoming the norm, the EMC was quickly championed by Dan O?Brien as ?so good it should be made permanent.? And despite the recent emergence of triumphalist narratives that the emergency has been overcome and the age of austerity is now behind us, there are no signs of the economic ?war cabinet? being dismantled. The other main site of decision-making power when it comes to the budget, the Department of Finance, formally accepts pre-budget submissions, but has shown little interest in meaningful external consultation. So while Irish civil society has developed a strong sense of engagement around budget policy, the impact of any alternative social vision presented remains marginal. This year, Social Justice Ireland presented analysis in its pre-budget submissions which examined six different options of income tax changes being contemplated by the government. The study concluded that ?the most unfair option would be to decrease the 41% tax rate?. Yet this was the very course taken by the Minister for Finance, and one which he has defended as ?very fair?

GuestPost - Mon Oct 13, 2014 15:00
We are delighted to welcome this guest post from Ruth Fletcher, a senior lecturer in Medical Law at Queen Mary, University of London Irish regulation of pregnant choices needs to be changed.   The current situation denies women legal power to opt out of pregnancy for their own reasons.  It also justifies poor legal, social and(...)

We are delighted to welcome this guest post from Ruth Fletcher, a senior lecturer in Medical Law at Queen Mary, University of London

Irish regulation of pregnant choices needs to be changed.   The current situation denies women legal power to opt out of pregnancy for their own reasons.  It also justifies poor legal, social and medical treatment of pregnant people in a wide variety of contexts beyond the particular issue of abortion access. Being denied legal power over key life decisions, such as whether you wish to sustain a pregnancy for 9 months, is a violation of human rights.  Denying women this legal power in the name of protecting foetal life misrepresents the value of equality since, as Ingram argued in 1992: “the right to life of the mother is to physical survival while the right of the foetus is to all the nurture it needs to develop into a fully participating member of the community.” (see ?Home and Away? in Smyth at p. 154)  Sustaining a pregnancy can be hard work even when it is a happy experience.  Laws which compel women to continue pregnancy against their better judgment devalue the many contributions which pregnant people have made voluntarily.

This legal order is wrong in principle.  But it has also been wrong in practice as we have seen harmful treatment of individual vulnerable women, the exclusion of abortion-seeking people from their home territory, and the demonization of those who support them.  There have always been sections of Irish society, which have protested against this situation and acted to change it.  There have even been moments when custom and the norms of medical practice anticipated abortion as a valid outcome for a pregnant person (see here for an account of St Brigit performing an abortion; and see Morriss in Schweppe on Irish medical textbooks in the early 20th century).  So I don?t think of the pathway towards reproductive justice and abortion rights as a straight, linear one from a history of mistreatment towards some future society which values and respects pregnant people (on ?pathways? see further Cooper).  Rather I think of our legal pathway as a meandering one; sometimes opened up and sometimes hidden from view.  The pathway to abortion rights and reproductive justice in Ireland is one which might have been carved out by Benjamin?s angel of history as she looks backwards while moving forwards, and the pile of rubble generated by ?progress? grows higher and higher (see further Fletcher).

This pathway has been produced by the struggle for pro-choice values and reproductive justice; goals I am proud to share (see further Ross, Roberts here and here, Fletcher and Fletcher in Schweppe).  This is a local and a global struggle against, and sometimes with, powerful interests and it is not going away anytime soon.  There is no quick legal fix.  Struggling towards those goals can be hard work as we are thwarted and demoralized as some big obstacle resists our efforts.  But we are also sustained by a history which remembers (and recovers) the important work of groups like the Anti-Amendment Campaign, the Women?s Information Network, the Students? Unions, the Irish Women?s Abortion Support Group and a host of others in providing support for abortion-seeking people through care and campaigning activities.  I want to be loud in joining with them to say that I believe that pregnant people should be legally recognized and supported as the key decision-makers in pregnancy; full stop.  I didn?t always believe this (on a related point see Kelly); but the process of coming to this conscientious commitment has helped drive me along for some time now.

This important history of legal, political, practical and personal struggle also makes me want to be loud in puncturing any assumption that Irish society has uniformly supported the legally sanctioned mistreatment of pregnant women.  It?s important that we remind ourselves, and audiences further afield, that we have a proud history of contesting such mistreatment.  Justice for the Magdalenes and Survivors of Symphysiotomy are among the shining examples of such caring and brave contestation.  Our legal system may continue to endorse compelled pregnancy, even for vulnerable women, but there has been a significant gap between law and civil society on this and related issues for some time.  Opinion polls have regularly shown levels of support for abortion access that go significantly beyond what the state is prepared to do.

As we think about how to bring better abortion law into being, I am guided by this sense of a meandering pathway which moves back and forth, and in and out, as it keeps reproductive justice in its sights.  There are obstacles we would like to remove and new signposts and routes we want to add.  But there is also the everyday cultivation of the ground in order to embed that pathway and ensure it takes hold.  I think we might want to distinguish between 3 types of orientation – repeal, legalise, interpret – in legal strategy that are already at work and which we might want to develop. They overlap in practice and it is timely to consider how to make the most of these different orientations along our way.

Orientation 1: Repeal

The repealthe8th strategy, which has gathered such inspiring momentum recently with the excellent coalition-building seminar on 6th September, almost 31 years to the day after the adoption of the 8th Amendment, has focused on removing the constitutional guarantee of equality between woman and foetus.  Article 40 3 3 is an obstacle not just to abortion access but to the treatment of pregnant women more generally through the suspension of their right to consent, as AIMS has argued.  Removing Article 40 3 3 would be a significant achievement practically and symbolically.  But it is insufficient in itself in order to decriminalise abortion since the criminal offence of ?intentionally destroying unborn human life? with a possible sentence of up to 14 years, is now contained within s. 22 of the Protection of Life During Pregnancy Act, 2013.  So that Act, which also provides for a problematically discriminatory and intrusive process of authorising abortion in life-saving circumstances, would have to repealed as well, if the legal restrictions on abortion access are to be removed.

Part of me supports the repeal-focused strategy because I think it fits with an approach which regards abortion as a normalized aspect of fertility control and healthcare.   Removing those legal rules which criminalise abortion and constitutionalises foetal protection, and instead applying normal consent and information laws to all pregnancy choices, seems like the obviously right way to go.  But another part of me knows that the removal of anti-choice pieces of law does not necessarily entail the removal of anti-choice legal ideology (on the power of law, see further Smart).  There are plenty of ways in which courts, officials and professional implementers of the law could invoke an 8th amendment like ethos using pre 8th legal sources.  We need to be prepared for, and to try and limit, that possibility.

There are obiter dicta such as that of Walsh J in G v an Bord Uchtala [1980] I.R. 32 which assert that the foetus has a right to life.  These could be drawn on to achieve much the same legal effect as Article 40 3 3.  Indeed one of the anti amendment arguments in the 1980s was that Article 40 3 3 was unnecessary to prevent the legalisation of abortion.  Moreover, as Wade has noted, Walsh J. went as far as stating that the foetus?s right to life involves the right to be reared and educated, the right to liberty, work, rest and recreation and the right to maintain that life at a proper human standard in matters of food, clothing and habitation.  While repeal of Article 40 3 3 and of the PLDPA would be a significant achievement practically and symbolically, it is unlikely to be enough in itself to normalise access to abortion on the territory of Ireland.  It is likely that we would also need an interpretative strategy as discussed below.  This would seek to strengthen existing commitments in the constitution, statute and common law towards the end of recognising women?s autonomy, bodily integrity and equality.  Secondly, it would develop public policy and professional guidance towards limiting protection of any public interest in foetal life to one that is consistent with women?s rights and supports pregnant people?s rights to have children in healthy and safe environments.

Orientation 2: Legalise

The second orientation of ?legalisation? would include the repeal element but would also seek to adopt positive legal measures with pro-choice values and procedures.  Such positive legal measures may include a constitutional provision, which explicitly recognises a pregnant person?s right to moral autonomy, bodily integrity and equality, thereby identifying constitutional principles which protect access to abortion as a legitimate option.  An added constitutional provision may not be necessary however, and a pro-choice statute could be the appropriate positive legal measure chosen.  If we are to avoid a situation where some abortions are ?good? and permissible and others are bad and impermissible, we need a statutory provision which authorises and protects the pregnant person as the relevant decision-maker.

France is a rare example of a jurisdiction which has, only very recently, adopted a law which allows women access to abortion for their own reasons, during the first 12 weeks of gestation.  It?s true that Roe v Wade 410 U.S. 113 (1973) authorises abortion in the USA as an aspect of women?s privacy rights and without the need to give reasons during the first 12 weeks also.  But women generally have to pay for this abortion care and there are a variety of regulations which mean that they have to observe waiting periods, or have ultrasounds, in a manner which is suspicious of their reasons (see further Sanger).  Pretty much every other jurisdiction requires some kind of reason in order to justify access.

In this international context, it may seem naive to focus on the goal of a pro-choice statute.  We?re very unlikely to get it in a jurisdiction which has a strong anti-choice history when pro-choice campaigns the world over have not been successful in this objective.  Perhaps we would be better focusing our energy on repeal and interpretation, rather than on legalisation per se.  On the other hand, there is something appealing about explicitly asking our state to atone for past and present wrongs to pregnant women by giving us a pro-choice statute and constitutional provisions.  No more crocodile tears please.  We want explicit legal recognition that pregnant people are to be trusted and authorised to make decisions about pregnancy.  Even if we don?t get it, perhaps there is something valuable in asking for a positive legal measure which attempts to clear some of the rubble thrown up by the history of symphysiotomy, the Magdalene laundries and the mother and baby homes.

But if we do give up on the hope of getting a positive, pro-choice law which would respect pregnant women?s judgment, the next best legislative strategy is to focus on risk to health grounds.  Britain?s legal regime requires a risk to mental or physical health in order for an abortion to be authorised during the first 24 weeks of pregnancy under s. 1 of the Abortion Act, 1967.  But statutory reliance on professional discretion and a good faith view of the approving doctors means that a generally supportive profession have a strong interpretative role here (see further Sheldon and BPAS pdf).  Secondly, the factual context of pregnancy and childbirth means that having a baby is usually riskier for a woman?s mental and physical health than ending that pregnancy before term.  So the statutory language in emphasising the good faith view of the authorising doctors combined with good quality abortion care means that the risk to health ground is not difficult for women to meet in practice, even as it continues to be contested.

Legislation which recognises a risk to health as a legitimate ground would build on the long-standing critique of the Irish legal distinction between health and life, a distinction which is not clinically practicable and which puts women?s lives in danger (see for example: Doctors for Choice, part 3, here pdf).  It is imperative that such a statutory ground build on the increased legal and public support for those suffering mental illness or distress and treat mental and physical health as equivalent.  A risk to health ground is also the best way of permitting abortion in particularly difficult cases such as rape or fatal foetal anomaly (FFA), since these grounds can be incorporated into a risk to health ground, without the problems associated with limiting access to grounds such as rape and FFA.  This leads me to considering the merits of the third strategy, as ?risk to health? is a ground which facilitates interpretation in light of the lived experience of women.

Orientation 3: Interpret

The third strategy of legal engagement through a focus on interpretation is one which gets less attention but is no less important, indeed might be even more important than the others.  Whatever legal rules we have or come to have, we have to argue for their interpretation and implementation in ways that are more sympathetic to the goals of reproductive justice.  There is always going to be obstacles and rubble, because we are engaged in a struggle over reproductive power.  But the rubble contains useful nuggets which we can dig out and clean up.

Law is a language which regularly uses big words such as life, equality, practicality, and necessity. These words are capable of bearing different meanings.  The meaning of key legal words in a particular case will depend on how they apply to the factual context they are intended to capture and on the history of these words? interpretation.  In other words, these meanings are not fixed, they have a history and they can change.

The ruling understanding of ?life? in Irish law as in many other jurisdictions is one that is typically associated with a ?sanctity of life? type approach.  This deems that there is some independent public value in ensuring the continued biological existence of a human being, even against the will of that human being.  This approach has been much criticised across a range of contexts as imposing unnecessary restrictions, including pain and suffering, on moral agents (e.g. Raz, Jackson).  But there are resources within our legal history which we can draw on and develop to help us carve out a different approach to the legal meaning of ?life?, one which values how sentient beings make their own lives.  As I argued at the IFPA?s Human Rights and Abortion Reform seminar in December 2013, in the case of Re a Ward of Court [1996] 2 I.R. 79, we do see the Supreme Court acknowledge the role of sentience in human life, even if in slightly opaque terms (on the significance of sentience see further Fletcher here and here, Savell, Derbyshire, RCOG).

The legal recognition that someone in a PVS or near PVS state does not impose a legal duty on professionals to sustain that biological life, because it will be of no benefit, amounts to a recognition that consciousness and sentience are significant legal interests.  The Court was careful to say that the incapacitated have rights, including rights to bodily integrity, autonomy and dignity.  But we could draw a distinction between capacity, which requires the more advanced cognitive ability of using and weighing information, and sentience, which is an ability to feel pain or pleasure.  The absence of sentience in foetal life should mean that this form of human life has a legal value which is materially different from the conscious, sentient life of the pregnant person, and does not justify restricting that person?s decisions.

Similarly, the recognition of an unenumerated right to bodily integrity in the Ryan case of 1965 provides a legal tool we can work with to flesh out a legal commitment to some quality of life beyond bare biological existence. True, the court found that Mrs Ryan?s right to bodily integrity did not trump because of a greater public interest in fluoridating water on public health grounds, but there is still something to work with here.  As MacMenamin J commented in Kearney (which concerned liability for the negligent performance of a symphysiotomy), ?The Constitution identifies rights which are to be protected and vindicated because they belong to each human person because of their very humanity. Among the values which have been recognised by the Courts are human dignity, bodily integrity, and autonomy, that is the capacity to make informed decisions affecting one?s own health. The duty to protect those rights is not confined to the Courts. Each health professional is, and was always, under a similar duty? (IESC, 2012, para 31). MacMenamin?s recognition of negligent medical treatment of a woman as a breach of her constitutional rights to dignity, bodily integrity and autonomy provides a legal commitment to bodily integrity and autonomy through which Article 40 3 3 (or any legal rule affecting pregnant choices) has to be re-interpreted.

I have long argued that the courts? interpretation of Article 40 3 3 has been methodologically weak since the first days of the abortion information cases (see here).  They have failed to engage in any depth with the significance of phrases in Article 40 3 3 such as ?equal? and ?as far as practicable?.  They have failed to attempt to interpret Article 40 3 3 in harmony with women?s other constitutional rights.  They have failed to consider ways in which constitutional and common law have usually considered limits on the ordinary human right to life, limits which should at least apply to the foetal right.  Given these failures in legal reasoning, it is arguable that the legal meaning of a pregnant person?s choices in relation to the sustenance of a particular pregnancy could be changed so as to accommodate constitutional recognition of autonomy, bodily integrity and different forms of life.

At a more practical level, professionals and ?experts by experience? can do, and are doing, important work in calling for the interpretation of existing laws and guidelines according to best practice and international standards.  As I argued in relation to the apparent treatment decisions of Ms Y, if abortion law is pushing clinicians towards poor and unethical practice in minimising consent requirements for vulnerable pregnant women, then their employers must be called to account in whatever regulatory or civic forum is available.  It is unfortunate that Irish law requires moral heroism of health care professionals, such as the IFPA counsellors (see further Behan), and of experts by experience, such as the members of Terminations for Medical Reasons.  They put themselves on the line again and again in calling the state on its shoddy treatment of pregnant women at the same time as they are left to pick up the pieces.  But their brave work demonstrates that there are ways of building up alternative accounts of good pregnancy care, which can be drawn on to challenge and change poor practice.

Conclusion

I?m really not sure myself as to which of the repeal and legalisation strategies is best right now.  While I see a lot of merit in proactively seeking, and being seen to seek, a positive pro-choice law, my current thinking on this is possibly more ruled by pragmatics than principle.  We?re not very likely to get the kind of pro-choice statute we would want.  We may be better off putting our energy into a repeal strategy and working on generating the kind of interpretative environment which would shore up trust in women?s judgment and support for professionals of all kinds who support women?s judgment in pregnancy.  Whatever happens next, the struggle for reproductive justice and abortion rights is not going to go away.  It is always going to be important to call for the interpretation of the existing legal ?shambles? in light of our reproductive justice goals.

Acknowledgments: With particular thanks to the IFPA, DfC, ARC, SpeakingofImelda and HRI for creating civic spaces which have sustained and developed my thinking on these issues.

 

 

Fiona de Londras - Mon Oct 13, 2014 14:30
This joint post by Máiréad Enright and Fiona de Londras draws heavily from Enright & de Londras, ??Empty Without and Empty Within?: The Unworkability of the Eighth Amendment after Savita Halappanavar and Miss Y? (2014) 20(2) Medico-Legal Journal of Ireland __ (forthcoming) The current constitutional framework for abortion, stemming from the Eighth Amendment, inflicts significant harm(...)

This joint post by Máiréad Enright and Fiona de Londras draws heavily from Enright & de Londras, ??Empty Without and Empty Within?: The Unworkability of the Eighth Amendment after Savita Halappanavar and Miss Y? (2014) 20(2) Medico-Legal Journal of Ireland __ (forthcoming)

The current constitutional framework for abortion, stemming from the Eighth Amendment, inflicts significant harm on women. However, notwithstanding that, some argue that there is nothing to be done. An assortment of arguments about ?political will? assume that because the electorate has voted on ?the abortion issue? three times, there is no legitimate scope for a referendum to repeal the Eighth Amendment and reform the constitutional position. In this post, we argue that a referendum is required for the purposes of constitutional regeneration and then consider two options for constitutional reform, arguing that rather than simple repeal, repeal and replacement of the Eighth Amendment would be the appropriate approach.

Justifying a Fourth Referendum

In its submissions to international human rights treaty bodes and the European Court of Human Rights, as well as its responses to the pronouncements of these bodies on Ireland?s abortion law regime, the Government tends to claim that the current law in Ireland reflects the sovereign will of the people, basing this claim on the fact that it emanates from a series of constitutional referenda on abortion. It is possible to unpick this argument from a critical perspective: one could point to the dysfunctional political processes that generated the Eighth Amendment in the first place, to the limitations of the referendum questions put to the electorate, or to the expanse of time and cultural change that stands between us and 1983. However, even leaving these arguments to one side and accepting the Eighth Amendment and subsequent abortion referenda as legitimate expressions of political will, there are compelling reasons for holding a fourth referendum on abortion.

Our argument is a simple one of constitutional renewal: a ?forward looking argument?. When we have faced positions like the current one before, in which stagnant processes of constitutional interpretation by the judiciary or other state agents, have produced an unworkable legal framework not in-keeping with the broader spirit of the Constitution, we have held referenda to begin again. This is how we added the rights to travel and the rights to information to the Constitution, for example. The Children?s Rights Referendum is one key recent example. The Citizenship Referendum in 2003 was, arguably, another. Furthermore, where a constitutional status quo seems considerably at odds with popular demands for a revised constitutional settlement, the principle of popular sovereignty upon which the Irish Constitution rests, and which was reflected in the Constitutional Convention held last year, militates towards reform.

It seems incongruous to accede to popular demands for referenda on minor changes to voting age and presidential term, for example, and to simultaneously continue to refuse the people an opportunity to vote in a liberalising abortion referendum.

Furthermore, the current operation of the Eighth Amendment is the product of suffocating trends in interpretation of the constitutional text, both in the courts and elsewhere. We appear to have developed a constitutional regime that allows women?s lives to be put at risk in ways that are very difficult to justify except outside a very restrictive reading of the Constitution: as Ruth Fletcher has argued, phrases such as ?equal right to life? and ?as far as practicable? could be interpreted in a more imaginative and liberal way to deal with, for example, fatal foetal abnormality and abortion in situations of clear unviability. However, interpretive interventions of this kind are highly unlikely, and mere adjustment of the PLDPA cannot adequately address the harm imposed on women by the constitutional status quo. Furthermore, the current law on abortion in Ireland is inconsistent with our international obligations, as noted by the UNHRC earlier this year.

Thus, there are compelling democratic, practical, and legal reasons for holding a constitutional referendum to reform Irish abortion law, however the question of the form that such a referendum might take remains an open one. There are two clear options for effective reform by means of constitutional referendum: ?simple? repeal of relevant constitutional provisions, and replacement of current provisions with new provisions expressly outlining the availability of abortion in Ireland. Both options raise some particular questions and challenges, and both would require legislation in order to give them proper effect should the referendum in question be successful.

Option 1: ?Simple? Repeal

Some pro-choice campaigners advocate a simple repeal of the Eighth Amendment, in the hopes that this would de-constitutionalise abortion, and return it to the legislative sphere. In effect, the argument goes that removal of Article 40.3.3 would leave the Constitution protecting a general right to life, without express reference to unborn life, and that in any subsequent litigation the Supreme Court would take the referendum result as indicating an intention to abolish the constitutional prohibition on abortion. Excising the constitutional provision would rid Article 40.3.3 of any further effect, ostensibly leaving the contours of abortion law for political settlement in the Oireachtas.

However, it is not necessarily clear that the effect of repeal would be quite as straightforward as this suggests. It may well the case that the Constitution contains loose threads, which might influence judges in a later case so that the Constitution may be said to contain a meaning not anticipated by the repeal campaign. Assuming that the effect of repeal is prospective only, there is an argument, based on dicta from a number of cases, that the foetus in utero enjoyed a constitutional right to life prior to the insertion of Article 40.3.3: this is certainly suggested in G v. An Bord Uchtala [1980] IR 32, and the judgments of Walsh J in McGee, McCarthy J in Norris and Barrington J in Finn v. The Attorney General [1983] I.R. 154.

Should Article 40.3.3 be removed from the Constitution there is a possibility that this jurisprudential conceptualisation of the right to life as include a right to be born might be revived to assert a constitutional right to life of the unborn, which would then have implications for the autonomy and bodily integrity of pregnant women and might well constitutionally constrain abortion law reform. Although unlikely, given that the express purpose of a repealing amendment would be to de-constitutionalise abortion, this nonetheless remains a possibility.

The X Case illustrates the practical, political and legal challenges that can flow from judicial interpretation of constitutional texts relating to abortion, and indeed the possibility of unanticipated consequences of seemingly straightforward constitutional amendments, so that a ?simple? repeal without the insertion of any clarifying provisions carries with it remote, but real, risks of the judicial re-constitutionalisation of abortion.

Option 2: Repeal and Replacement

The second option for constitutional reform is the repeal and replacement of Article 40.3.3 in order to make clear the constitutional position relating to abortion in a manner similar to the 15th Amendment (on divorce). Bearing in mind that an overly detailed constitutional provision can hamstring subsequent legislative efforts and make law reform burdensome, a relatively modest approach to a replacement provision would seem advisable.

This could be achieved by replacing the current text with an express right to bodily integrity together with the right to life, which the state would pledge to vindicate and protect, followed by a secondary provision employing the ?Nothing in this constitution shall operate?? formula to explicitly permit the introduction abortion.

A formulation of this kind should place beyond doubt the deconstitutionalisation of abortion per se while leaving the precise parameters for the provision of abortion to be determined through the political sphere and for subsequent revision and reform if appropriate and desired. It should also preclude the state from upholding a law which is inconsistent with international human rights law and comparative practice in the field of abortion law, on the basis that it represents the ?will of the People?. It should ensure, accordingly, that governments must take full political responsibility in domestic and political spheres for their decisions as to the availability of abortion in Ireland.

GuestPost - Mon Oct 13, 2014 14:00
by Sheelagh McGuinness & Marie Fox Following a recent Dublin conference on ?Building a coalition to repeal the 8th Amendment?, co-organiser Sinéad Kennedy asserted that ?[t]he Eighth amendment is a source of discrimination against women but it particularly affects marginalised women who have suffered disproportionately; migrant women, women with little or no income, women who(...)

by Sheelagh McGuinness & Marie Fox

Following a recent Dublin conference on ?Building a coalition to repeal the 8th Amendment?, co-organiser Sinéad Kennedy asserted that ?[t]he Eighth amendment is a source of discrimination against women but it particularly affects marginalised women who have suffered disproportionately; migrant women, women with little or no income, women who are unable to travel for whatever reason, women facing a crisis pregnancy and women who need an abortion for medical reasons.? Her contention is perfectly illustrated as factual details continue to emerge about the recent case of Ms Y, which exemplifies the dangerous and uncertain situation that women in need of abortion find themselves in in Ireland.

This blog focuses on the problems generated by presuming that women can travel in order to access basic health care. Our concerns with this presumption are both practical and principled: practically, many women cannot in fact travel, and even if they can physically make the journey, travel imposes considerable financial and other burdens on them. Principled objections concern the hypocrisy of both Irish jurisdictions in failing to provide basic health care and thus failing to squarely address questions about the right to health and gender equality in Ireland. In this regard we wish to highlight that the situation of Ms Y is not unique to women in the Republic of Ireland but applies equally to women in the North of Ireland who are also forced to travel to access abortion care.

Travel permeates the Ms Y story. Ms Y was forced to travel to Ireland in order to escape rape and violence in her home country. She was then placed in a situation where once again travel became necessary as she was forced to travel in order to access a basic health service: abortion. Ms Y then travelled between residences in Ireland as, for reasons of shame and stigma, she tried to hide her pregnancy from anyone she knew. It has also recently emerged that in an attempt to access abortion services in England five weeks before her baby was delivered in Dublin, she was arrested in Liverpool for illegally entering the UK from Ireland. The circumstances in which she travelled back to Ireland are as yet unknown.

Ms Y was then confined in a hospital and threatened with detention under the Mental Health Act. Ultimately the aim was that she ?could be maintained on the ward for as long as possible and hopefully to 30 weeks so that the baby could be delivered appropriately?. And it is with tragic irony that it is reported that email correspondence between two individuals working at the Reception and Integration Agency at the Department of Justice starts with the phrase ?Ann, I don?t mean to interrupt your holliers but??. Abortion tourism is rightly a much maligned phrase. The juxtaposition of Ms Y, confined to a hospital bed refusing all foods and liquids, with an individual on a holiday starkly illustrates the point.

The health and safety of women and girls in Northern Ireland also relies on their ability to travel. Every year approximately 1,000 women from Northern Ireland join the approximately 4,000 women from the Republic of Ireland who travel to Great Britain in order to access abortion care. Governance of abortion in the North of Ireland is similarly restrictive to that in the South. Abortion in Northern Ireland continues to be regulated by ss. 58 & 59 of the Offences Against the Person Act 1861, which has been judicially interpreted to mean that abortion is permissible only where the life of the pregnant woman is endangered or where the continuance of pregnancy poses a grave risk of serious harm to her physical or mental health. The number of women who meet this threshold each year is small. In 2013, only 51 cases did so. The problems this has generated have recently been acknowledged, albeit to a limited extent, in a Department of Justice Consultation which seeks views on the issue of legislating to decriminalise abortion in cases where the foetus suffers from severe abnormalities or the woman has been the victim of sexual crime. The consultation cites the case of Sarah Ewart who in 2013 testified publicly about the trauma and upset occasioned by having to travel to England to terminate her pregnancy when it emerged that the foetus she was carrying was anencephalic (Department of Justice, The Criminal Law on Abortion para 1.2-1.5). Nevertheless, while it is undoubtedly the case that permitting such terminations in Northern Ireland would be a positive step, such a reform would do nothing for numerous other women and girls. In 2012 a fifteen-year-old girl from Northern Ireland became pregnant at a time she did not want to be and so wished to terminate the pregnancy. She and her mother scrimped and saved to try and raise the funds to travel to England to have an abortion. They needed money not just for travel but also for the procedure itself since as a resident of Northern Ireland she was not entitled to treatment under the NHS. We have described their situation elsewhere as an ?abortion financial spiral?. The longer it took to save the money for the procedure the further the pregnancy progressed. The further the pregnancy progressed the higher the cost of the procedure. It is also widely accepted that earlier abortions lead to better health outcomes for women. Her mother described the situation as ?harrowing?. This girl was lucky that in the end with the assistance of the Abortion Support Network (ASN) she and her mother were able to travel to England to access abortion in a private clinic.

Mara Clarke, Director of ASN, recently described that the organisation was a ?boutique travel agency?. It was established in 2009 in order to provide Irish women with financial, logistical, and emotional support to access abortion care in England and is a lifeline to the many women in Ireland who need to travel to access abortion care. The ASN website details the barrier that the costs of travel poses to those who need to travel to access abortion care:

?We’re united in our decision not to have another child. Our main worry is getting there, travelling, sorting out childcare and other logistics. With Christmas coming money is especially tight.?

?Though my child will have to do without Christmas presents this year, at least the children of the friend I no longer have to borrow money from will have gifts. Thank you very, very much.?

A particularly striking example of the problems posed by a reliance on travel is evidenced in ASN?s urgent appeal in 2010. This appeal was launched in the wake of the eruptions of the Icelandic volcano Eyjafjallajökull, which caused travel chaos across Europe. The appeal entitled ?Irish Women Need Cash Not Ash? aimed to alleviate some of the burdens that the inability to travel was placing on Irish women. The following is an example of a woman they helped:

?This week, we’ve heard from a number of women who were due to have travel to the UK this week for terminations, including a very young teen who is extremely close to the 24 week time limit for abortions in the UK. She had to miss her appointment earlier this week and is now coming next week by ferry and train – a round trip journey of more than 24 hours. Her mother solely supports her and her siblings with a part time job and now has to cover costs of £2,300 (procedure + money lost on cancelled flights + last minute ferry and train tickets).?

This goes to show that even in cases where travel is possible, the burdens and uncertainties remain considerable. ASN is only one of a number of underground networks which exist to facilitate abortion across national borders. The metaphor of the boutique travel agency was recently developed by campaigners in Spain. The fictitious agency emerged as a response to plans, which have recently been abandoned in the face of public opposition, to criminalise abortion in Spain unless the woman had been raped or the continuance of the pregnancy threatened her physical or mental health. Spanish pro-choice campaigners established a fictitious online ?Abortion Travel? agency. There was also a pop-up shop in Madrid. Passers-by could enter their stage of gestation along with their reason for wishing to terminate a pregnancy in order to see what their travel options were. As a form of protest, campaigners again wished to highlight the practical realities of so called abortion tourism

It is also worth noting the regional variations that exist within jurisdictions and impede access to abortion services. Thus even within a relatively small jurisdiction, such as the UK, significant variations obtain. Particular obstacles to accessing services are faced by Scottish women, often necessitating travel to England for abortion once they have reached 18-20 weeks? gestation even though the legal cut-off for most abortions is 24 weeks. In the wake of the No vote in the Scottish Independence referendum fears have been raised that plans to devolve power over abortion law to Holyrood could result in more women having to travel to England to access services. Women from Scotland who have had to travel, to access a basic healthcare service which they are legally entitled, have identified the burden of travel as stigmatizing and distressing. If the litigants in Doogan and Wood are successful we are likely to evidence an increase in the number of women from Scotland who have to travel to England in order to access abortion care.

Ms Y arrived in Liverpool with ?38 and £1. The helplessness of her situation echoes the helplessness which many generations of women who travel from Ireland to access services in England have faced. Ms Y was detained as an illegal immigrant. Ann Rossiter?s moving history of the women who travel on the ?abortion trail? opens with the following:

?A fraught phone call from Healthrow at around 9 a.m. intrudes on a leisurely Saturday breakfast and newspaper-reading session. A hysterical voice in a strong Northern Irish accent says that someone needs to get to the airport ? and quick. ?Me and me wee daughter are begin held here?, she says in a rush. ?They?re holding us under the PTA (Prevention of Terrorism Act) and they say we need someone to vouch for us?. After a strong intake of breadth, the woman gives her name and haltingly explains that she has brought her daughter to London for an abortion.? (Ann Rossiter, Ireland?s Hidden Diaspora, p.31).

Cheap airline flights have to some extent made us blind to the burdens which travel imposes on women. Cases like that of Ms Y highlight the terrible and helpless situation which women travelling from Ireland have faced in the past and continue to face. Marcia Inhorn has described forced travel to access reproductive health care services as a form of ?reproductive exile?. The narrow remit of the Northern Ireland consultation, which limits discussion on decriminalisation to two very narrow issues, is clearly inadequate to address the flaws of abortion regulation and seems doomed to repeat the problems that have already emerges with the Protection of Life During Pregnancy Act 2013. Since the insertion of the Eighth Amendment in 1983 it is estimated that at least 160,000 Irish women have been forced to travel to access abortion services. As we have argued elsewhere, restricting access to abortion only delays abortions rather than stopping. Surely it is time to amend the threshold for accessing safe and legal health care services and acknowledge the reality of what travel means.

GuestPost - Mon Oct 13, 2014 13:30
by Roja Fazaeli The art of listening is in short supply in all too many professions. My own experience giving birth in the National Maternity Hospital in Dublin in January 2014 illustrates this. While I had some moments of extraordinarily good care during my pregnancy, these were outweighed and overshadowed by bad care. I trace(...)

by Roja Fazaeli

The art of listening is in short supply in all too many professions. My own experience giving birth in the National Maternity Hospital in Dublin in January 2014 illustrates this.

While I had some moments of extraordinarily good care during my pregnancy, these were outweighed and overshadowed by bad care. I trace the root of this bad care to the inability or unwillingness to listen to me as a patient, a woman, an ethnic minority, an individual.

Ears were closed from the start. I had had high blood pressure throughout the later stages of my pregnancy, which at one point necessitated an overnight monitoring stay. The pressure was still high when I presented in the cold early morning hours in pre-labour. The first doctor who examined me looked at the high numbers and simply said, ?We?ll give you a pill and then you can probably go home.? He started to walk away. ??What?s the pill?? I asked. He continued walking. ?Excuse me, what?s the pill? My husband asked. He ignored us and continued out into the hall. Instead of acknowledging that high blood pressure was a concern for me, instead of asking briefly where home was and how long it would take us to get there and back, he provided his expert advice, one size fits all, and did not care to stop and listen how we would receive it or the impact it would have upon us. The tone had been set.

I have medical doctors scattered all throughout my family. I know that the overnights can be terrible. I know that the hospitals are chronically understaffed and overworked. This is not an excuse for failing in the basic human function of listening.

We stayed at the hospital and a few hours later my blood pressure dropped dramatically. During the same time the fetal heart rate monitor tracking my baby?s heartbeat flat lined. We had been on our own for hours in a drowsy corner of the night ward. Suddenly, with the alarm of electronic beeps we were quickly surrounded by three hospital staff. One shouted for the doctor. Another gave me an injection. A third thrust her hand quickly and roughly into my cervix. The doctor never came. My pressure was stabilized. The baby?s heartbeat was regained. ?What happened?? I asked with my pulse racing. ?Nothing? said one nurse, the look of concern on her face belying the curt answer. As they walked away I heard her mutter to another, ?that doctor?never shows up.? I never learned what happened during that episode. Even though I asked multiple times I don?t think anyone was really listening to the question.

Later on, after the morning had broken and my water been broken for me, I spent a number of hours in a delivery room before a decision was made to perform an emergency cesarean section. My baby had gone into fetal distress following a bad reaction to the oxytocin used to induce labour. We went to the operating theatre. My girl was born. I listened to her healthy cries and felt joy and relief. Then she went with my husband and I went to the recovery ward.

Later that first night, on the maternity ward, I learned one of the principles that seems to guide the antiquated concept of a standalone maternity hospital: breastfeeding is a normative imperative. Even though I had difficulty picking up my little girl after the c-section, even though I?d not yet met with a lactation consultant, and even though my husband was refused permission to stay on the ward overnight to help me, I was still expected to be, or to act, the part of a perfect mother, however, idealized or inventive. When I asked for help to mind my little one the midwife on duty insisted that that I better off minding her myself as there were a number of other babies she had to care for. She did not listen to me, the pain I was feeling, or the difficulty I was having. But I heard very clearly the subtext of her refusal: Everything is normal. You are not a person, but a Mother and your pain is to be disregarded. Everyone here has pain.

However, even had I wanted to assent to this narrative it soon became physically impossible for me to so. After one day on the ward I woke up to two things: a significant pain in my body and a verbal barrage from a midwife chastising me for not feeding my baby enough. Both made me cry. I felt inadequate as a mother. The pain increased significantly. I tried to feed my baby girl, but had no milk. I told the midwife I had pain. She told me that she would give me a painkiller. The painkiller never arrived. The pain increased and became worse than anything I had experienced during labour. The midwife continued to ignore my pain. My husband, worried, went out into the hall, found the midwife and brought her back to the bed. This happened three times. The pain remained excruciating. They called a doctor.

A junior doctor arrived and after a cursory examination told me that me that I had wind. I told him that it was not wind, and that I felt like I had broken glass in my abdomen. Again, no one listened. He left and half an hour later the pain increased so much that I began to shout for help. Other patients, alarmed, stopped at the curtain to my bed. A midwife I had not seen before, who was not assigned to my bed, passed by. ?Poor girl,? she said. ?That?s just not right? She saw my suffering, but kept walking.

The midwife assigned to me returned. I felt an extreme internal pressure and asked to taken to the bathroom. There I voided large blood clots. The midwife left me there with a student nurse. I began to lose consciousness. The midwife returned in a panicked state and brought me back to my bed. She put a bed pan under me. The pain was so much worse than labour. I continued to lose blood, yet in the midst of this she decided to take a urine sample. She told me the pain was probably not wind, but a urinary tract infection. I told them multiple times that the pain was serious, that in fact, it was unbearable. Unable, or unwilling to listen to this, they told me, as professionals, it was not.

My husband, who throughout all this was holding our child while attempting to corral and convince anyone on the ward to attend to me and take my pain seriously later related that the whole scene looked like something from a poorly run field hospital in a developing country. There was a strange and unsuccessful attempt to get a urine sample from my bloody discharge while I screamed in pain. Then I collapsed unconscious onto the bed. A crash team was called to resuscitate me and I was moved immediately to the operating theatre.

The welcome page of the National Maternity Hospital website proclaims, ?Since opening our doors in 1894 we have understood that there is nothing more important than the safe delivery of our children.? It is a good guiding ethos, but ultimately an incomplete one unless and until paired with a corresponding commitment to the health of women giving birth, in all of their diverse conditions.

Ultimately, I lost five litres of blood, spent a short period of recovery in the high dependency unit, and was quickly rotated back on to the ward, this time with an indwelling urinary catheter in place. Again, when I asked the question, ?What happened?? I had an astonishingly hard time getting an informed and direct response. I was told that my situation was unusual. I was told they had not seen my situation before. I was told they were not sure what happened. Only after we requested and insisted on direct meetings with doctors, and were helped by outside advocacy pressure from friends and colleagues in medicine, did we eventually learn that during the c-section my bladder had suffered some sort of trauma. However, the injury to it went unnoticed with the result that I had bled internally until I collapsed and was taken to the operating theatre.

I told this story to a colleague at Trinity recently and he, recalling the tragic deaths of Savita Halappanavar and Dhara Kivlehan, remarked, ?You were almost another brown woman who died in the system.? And the fact is that as someone who was not born in Ireland I may have suffered some form of discrimination based on national origin. However, having come to Ireland as a child and having become naturalized as an Irish citizen I am also hesitant to explain bad care through a single lens of national or racial prejudice. There is something about the system itself that is broken and threatens to harm any woman who passes through it, regardless of their point of origin.

Following a substantial period of extraordinarily substandard catheter management, during which I continued to regularly experience pain that was not acknowledged or responded to, I was moved into private room in the Merrion Wing of the hospital. It would have been a nice gesture of contrition and apology by the hospital administration had the room placement not been realized through the hard work and individual initiative of a mid-wife who singlehandedly pushed the approval through the insurance process. Because she stopped to listen to me she felt compelled to respond. Sadly, in order to do so, she was forced to go outside, or around, the system in order to secure a good outcome.

I breathed a sigh of relief as I settled into the quiet of the new room. A midwife entered and looked at my chart. ?How are we doing, Mom?? she asked. During the few days I stayed there I was always referred to as ?Mom.? Never by Roja. Never by Fazaeli. Only, and always, by ?Mom.? I could have been anyone. Once more, my pain, my troubles with the catheter faded into the clean white of the walls. I became a simple placeholder in a system where women?s lives were all weighed on one scale, measured against one standard, and sublimated to the dominant cultural demands, customary and codified, that govern our human interaction.

Eventually, we took matters into our own hands and transferred to St. Vincent?s Hospital where I could receive specialist care for my bladder trauma and catheter. Leaving the system of maternity care we also left a good deal of the dated assumptions, closed ears, and professional hubris which sadly marked so much of my pregnancy and birth process. We moved toward a system which engaged more progressive concepts of patient and family centered care and a medical team who understood the patient care relationship more in terms of transparency and partnership than privileged knowledge, command and control.

If the art of listening is in short supply in the field of maternal healthcare it is also too rare in the fields of law and politics. The Eight Amendment to the Irish Constitution effectively acts as a legal ear plug, dulling the individual voices of women, and offering another unfortunate one size fits all response to a broad spectrum of individual experience. The Eighth Amendment should be repealed. This repeal process should be understood as part of a larger social repeal process whereby gender norms and expectations that stifle individual voices are reassessed and removed in relation to the dangers they pose to women?s health and social justice. It?s time to listen to the cacophony of women?s voices who have been, and continue to be, ignored and who endure unnecessary pain in Ireland.

 

GuestPost - Mon Oct 13, 2014 13:00
by Fiona Dunkin & Aoife Campbell, Re(al)-Productive Health On 22nd May 1971, a band of 47 women marched brazenly and triumphantly into Connolly station in Dublin, armed with various assortments of condoms, spermicides, jelly and what appeared to be contraceptive pills.* To many onlookers in Connolly station that day, this was a scandalous, or at(...)

by Fiona Dunkin & Aoife Campbell, Re(al)-Productive Health

On 22nd May 1971, a band of 47 women marched brazenly and triumphantly into Connolly station in Dublin, armed with various assortments of condoms, spermicides, jelly and what appeared to be contraceptive pills.*

To many onlookers in Connolly station that day, this was a scandalous, or at the very least, farcical scene. After all, this was Ireland of the 1970s, a country still firmly entrenched within the grips of the Catholic Church, a country in which women were forced to leave public service upon marriage, and vitally, a country that had not yet legalised contraception.

For these women, however, members of the Irish Women?s Liberation Movement, this was a scene of defiance. A scene of freedom. A scene of rejection of the societal and legislative shackles suppressing reproductive and sexual justice in Ireland.

These women were demanding equality. They were demanding the freedom to choose when or if they became pregnant. They were demanding better lives.

Forty-two years later, however, in specific terms of contraception, how far have we come? Have the shackles finally been fractured? Undoubtedly, a great deal has changed since that day. In 1979, the Health (Family Planning) Act legalised contraception. By 1993, though still required for the contraceptive pill, restrictions regarding prescription for condoms had been lifted. Change was incremental, but with struggle, it came.

However, it was the tweaking of legislation just two years ago that heralded another vital change of scene in terms of reproductive justice in Ireland. Levonorgestrel, a variety of emergency hormonal contraception, was made available over the counter in pharmacies. Boots announced plans in 2011 to begin sales of the drug without prescription, under something known as Patient Group Directions (PGD), which meant that medical directors of pharmacies were in a position to authorise administration.

For the first time, women were, in effect, permitted to individually determine their reproduction in a retrospective manner. For the first time, such power seemed to have transferred from the doctor?s pen to the woman?s prerogative. And it was a success. Indeed, according to a recent study conducted by the Irish Pharmacy Union, the only brand of levonorgestrel available thus far, ?NorLevo?, has been requested by women in 85 per cent of pharmacies in Ireland since its launch. Women had wanted this.

However, has this power truly been extricated from its previous beholders? Certainly, the availability of emergency contraception over the counter has rendered the drug more accessible, yet questions remain.

Indeed, the phrase ?over-the-counter? could be characterised as rather misleading in nature. Firstly, and perhaps most fundamentally, such access, is in fact, at the discretion of pharmacists. Under Principle One of the Pharmaceutical Society of Ireland?s (PSI) Code of Conduct for pharmacists, as outlined in the PSI?s Interim Guidance on the supply of NorLevo by pharmacists, pharmacists may refuse to dispense the morning after pill if it lies in contradiction with his or her moral standards; ?if supply to a patient is likely to be affected by the personal moral standards of a pharmacist? (PSI, 2011).

Though the pharmacist is required to refer women to another pharmacist, women remain at the risk of potential humiliation or even lack of access to the drug, with those living in rural areas often encountering the most difficulty.

What about those pharmacists that do not object to dispensing emergency contraception, however? Surely in those cases, we can, with relative certainty, declare the drug to be accessible to all?

Perhaps not. Indeed, required as part of the process of access is a detailed, structured consultation process in order to ?determine the appropriateness of the supply and provide an opportunity to meet the appropriate patient counselling requirements? (PSI, 2011). Such a process is almost certainly very useful in terms of providing women with comprehensive information on the potential risks and effects associated with the drug. Nonetheless, with such a consultation largely based on a questioning approach, it may represent a source of intimidation, frustration or embarrassment for women. How about offering a variant approach, according the wishes of the individual woman? Would it be possible to provide women with accurate, comprehensive information on NorLevo, whilst also acknowledging the potentiality of such negative emotions within an information giving approach? Indeed, with NorLevo widely regarded as ?safer than Aspirin? (Grimes, 2002: 1536), it is necessary to ask; why does there exist such a discrepancy in terms of process of access?

None of these questions, however, are truly relevant unless we seek to encompass the experiences of all sectors of society, all kinds of woman. At present, there exists no standard price for over the counter emergency contraception, with prices ranging between ?10 and ?45. Our pharmacies are private. Free sexual and reproductive health clinics are few and far in between. Over the counter emergency contraception is not covered under the medical card. It is clear that contraception falls neatly within the remit of the free market. Can we ever truly claim to have achieved reproductive justice if reproductive justice is only for some?

Thus it is quite clear that, specifically in terms of emergency contraception, the medical profession continues to cling to a considerable amount of power. It is clear that deeply entrenched societal norms regarding female sexuality have not yet dissipated. It is also clear that reproductive justice does not apply to all kinds of women in all kinds of places.

So what can we do about it? Re(al)-Productive Health, launched in September 2013, hopes to make a start. The campaign seeks to offer both an informative and proactive approach to this problem.

The website features a facility whereby experiences of access of emergency contraception in pharmacies can be uploaded onto a map of Ireland. This feature aims to both highlight issues relating to access, alongside allowing individuals an opportunity to seek out availability and accessibility of the drug in their local area.

Vitally important to real change however, is the alteration of guidelines and processes surrounding provision of emergency contraception, in order to allow for greater accessibility and to reduce stigma around the issues of female sexuality in Ireland.

Re(al)-Productive Health is thus currently working on a submission to The Health Products Regulatory Authority (HPRA – formerly IMB) to alter the status of NorLevo (levonorgestrel / emergency hormonal contraception) from Pharmacy Only to General Sales access. This would allow women to access emergency contraception directly from the pharmacy shelf, placing the power in her hands. Such a process of access in practised in 15 countries worldwide; Bangladesh, Bulgaria, Canada, Cyprus, Denmark, Estonia, India, Laos, Netherlands, Norway, Portugal, Romania, Slovakia, Sweden, and the United States of America.

Results from those countries allowing access to EC over the counter are very positive. Plan B (an other brand of levonorgestrel) in Sweden, for example, has an ?established safety record? with ?widespread evidence? showing ?safe and effective use without professional intervention?, (CMAJ, Erdman and Cook in Foster, Wynn., 2012: 75). Overall, studies on truly OTC access has shown that ?women of various backgrounds have been shown to use emergency contraception safely and appropriately when EC was provided OTC?, with ?incidence of adverse effects and pregnancy rates? being ?relatively low?, (Nguyen, 2007: 13).

As part of this focus, the campaign is also a proud partner of the recently launched organisation Women Help Women, ( www.womenhelp.org) which seeks to improve access to a range of contraceptives, as well as medical abortion, on an international scale. A key component of the group is the provision of advanced provision of emergency contraception, which allows women to store pills in the event of future need, as opposed to purchasing one pill on the basis of one sexual incident. Indeed, the World Health Organisation (WHO) state that advanced provision of emergency contraception is ?not associated with increased frequency of unprotected intercourse? but rather ?leads to increased use of the method? (WHO, 2010). Re(al)-Productive Heath feel that providing access to advanced provision of emergency contraception in Ireland would provide women with greater access and autonomy regarding their reproductive choices. Access to emergency contraception from home, from one?s own medical storage would be undoubtedly beneficial to women requiring the time sensitive drug during anti-social hours or those with restricted access to finance. Advance provision is already practised in many countries such as Canada, Denmark, Sweden, Portugal and the United States of America, with no adverse results.

Thus, efforts to continue to improve an already legal product continue, and are very necessary. If we have learned anything from generations of struggle both in Ireland and internationally, within both feminism and other movements, it is that our rights are only worth as much as we are prepared to fight for them. Formal acknowledgement and the removal of legal obstacles form only a partial element of a much broader project.

Indeed, with the prospect of the expansion of reproductive services in Ireland on the horizon, a continued focus on such concerns is essential. The legalisation of abortion will represent a momentous achievement in terms of the progression of women?s rights in Ireland. Nonetheless, it will be vitally important that that such a system caters for a wide variety of needs, that such a system considers a wide variety of structural, social and cultural barriers, and ultimately – that such a system is workable.

The 2013 Protection of Life During Pregnancy Act is a stark example of a shamefully unworkable piece of legislation – a static sliver of symbolism written into statute in order to appease the appetites of some and assuage the apprehension of others.

Reproductive justice must be removed from the realm of legality and rightfully placed within the realm of healthcare. Vital to this, however, is a fundamental shift in its entire conception. To be truly progressive, health care must be patient-lead – not paternalistic. It must be based on people?s needs – not profit.

In order to best accommodate reproductive justice in practise, autonomy and accessibility are key. Gatekeepers to reproductive justice, in the guise of the state, the medical profession, and the justice system should be shown the door.

So let us Repeal the 8th – but until we have reached our desired destination, let?s stay on board the train.

References:

Foster, A., Wynn, L. (2012) Emergency Contraception: The Story of a Global Reproductive Health Technology

Grimes, D. (2002) ?Emergency contraception and fire extinguishers: a prevention paradox?.

American Journal of Obstetrics and Gynecology 187(6):1536-8

 

Nguyen, A (2005) ?A Comparative Analysis of Regulated Emergency Contraception vs.

Deregulated Emergency Contraception?. Wichita State University

 

Pharmaceutical Society of Ireland (PSI) (2013) Supply by pharmacists of non-prescription

medicinal product containing levonorgestrel (?NorLevo? 1.5mg tablets) as emergency

hormonal contraception

WHO (World Health Organisation). (2002) ?The Selection and Use of Essential Medicines:

Report of the WHO Expert Committee, 2002 (including the 12th Model List of Essential Medicines)

 

 

 

 

Fergus Ryan - Mon Oct 13, 2014 12:30
It is interesting to speculate what Irish abortion law might look like if Ireland were to be situated in the middle of the Atlantic Ocean rather than on its edge. (Preferably, this would be somewhere warm and sunny, out of the path of hurricanes). If travelling to our nearest neighbour were a lengthy and prohibitively(...)

It is interesting to speculate what Irish abortion law might look like if Ireland were to be situated in the middle of the Atlantic Ocean rather than on its edge. (Preferably, this would be somewhere warm and sunny, out of the path of hurricanes). If travelling to our nearest neighbour were a lengthy and prohibitively expensive expedition rather than the one-hour plane ride it is now, how would we collectively frame our abortion policy? What if, in our ?splendid isolation?, we required visas to travel to Great Britain? Absent the ?safety-valve? of proximity to Britain, would we have adopted a stance that bans abortion in all but the most extreme of cases?

There is no doubt that geography has played a central part in the formulation of Irish abortion policy. Our proximity to Britain, where abortion is legal and (subject to some conditions) freely available, has facilitated a situation where most (though not all) women resident in Ireland may access abortion ? just not in Ireland. The People of Ireland explicitly amended the Constitution of Ireland to recognise such a situation. The 8th amendment (Article 40.3.3), enacted in 1983, guarantees the right to life of the unborn subject to the equal right to life of the mother. According to the 1992 Supreme Court decision in Attorney General v X, an abortion may be performed in Ireland where there is a real and substantial risk to the life of the pregnant woman, including a risk that she will commit suicide. The X case nonetheless highlighted the prospect that a woman might be prevented from travelling abroad to obtain an abortion in a case where there was no real and substantial risk to her life. With a view to preventing this possibility, the 13th amendment, enacted in 1992, stipulates that Article 40.3.3 cannot be employed to ?limit freedom to travel between the State and another state?. Thus, a woman may not be prevented from travelling because of her intention to terminate her pregnancy outside the State in circumstances not falling within the terms of the X case.

This freedom is admittedly framed as a negative liberty. In some cases, the HSE (now the Child and Family Agency) has helped underage women in care to travel to Britain for an abortion and, it would appear, has paid for these terminations. (In most of these cases, the young women would have been entitled to an abortion in Ireland based on a risk of suicide.) In general, however, the obligation on the State is a negative one ? not to restrain travel. The 13th amendment does not require the State generally to support or to fund travel outside the State.

Thus, practical difficulties may arise in exercising the freedom to travel, particularly in cases where women have limited financial means and/or social supports. According to the IFPA, an abortion can cost anything between ?600 and ?2000. The precarious immigration status of some women may also present difficulties in travelling, as highlighted by the recent, and very disturbing experience of Miss Y, discussed here and here. While the State has in some cases issued travel documents to asylum seekers wishing to travel for an abortion, the availability of such documents depends entirely on administrative discretion (and may lead to delays in accessing a terminations). The Department of Justice and Equality does not provide any financial assistance to these women for this purpose. (Notably, adult asylum seekers in direct provision receive just ?19.60 in state provision per week).

The 13th amendment passed by a 62.39% majority.   While not a resounding victory, the vote in favour represented a reasonably solid verdict, supported by just under two-thirds of those who voted. At the same time the People (overturning the Supreme Court?s previous interpretation of the 8th amendment) passed the 14th amendment, preventing the 8th amendment from being used to limit the supply of information to women seeking an abortion lawfully available in another state. The right to information, however, is subject to conditions set out in the Regulation of Information (Services Outside the State for the Termination of Pregnancies) Act 1995, the broad import of which is to prevent the ?promotion? of abortion as an outcome.

Admittedly, the People have never had the chance to opt even for the moderate liberalisation of the substantive law on abortion. Referendums in 1992 and 2002 proposed a rowing back of the already restrictive approach to abortion, and were both rejected. (Admittedly, some voters may have rejected the 2002 amendment because they believed it was not sufficiently restrictive). Nonetheless, the net effect of the 8th Amendment coupled with the freedom to travel protected by the 13th Amendment is that abortion is made available to women from Ireland, just not in Ireland. As Dr Mary Favier has pointed out: ?Ireland does have abortion; we just don?t have it in this country.?

Even for the small number of women who would be entitled to an abortion in Ireland (as a result of the X case) it may be significantly less complicated to access a termination in Great Britain. The Protection of Life During Pregnancy Act 2013, designed to vindicate the limited rights established in the X case, arguably makes it preferable (where possible) to travel abroad for an abortion, given the strict preconditions contained in that Act (particularly where there is a risk of suicide).

What we are left with is something of a national fudge. Ireland, of course, cannot be held responsible (nor given any credit) for its neighbour?s more liberal abortion regime. Nonetheless, the passage of the 13th amendment arguably represented a tacit, rather roundabout endorsement of the Abortion Act 1967. Ireland could continue to say that it allows terminations only in the most limited of circumstances and subject to the strictest of safeguards. Meanwhile, we could outsource the issue of crisis pregnancies to our neighbour, where the safeguards for the foetus are much more limited, thus avoiding the prospect of unsafe, illegal abortions in Ireland.

This approach has allowed the State to trumpet its ?superior? moral credentials without having to deal with all the consequences that normally would flow from such a stance. As part of the process of nation building, the newly founded independent Free State from 1922 onwards busied itself solidifying an image of Ireland as morally pure and well disciplined in matters of sexuality. A narrative developed that contrasted the ?purity? of Ireland (rural, Catholic and Gaelic) with the supposed ?impurity? of its industrialised neighbour. Much of the initial drive against censorship, for instance, was directed against foreign literature and film, ?the poisoned flood that is pouring into the country?. (?Immoral Literature?, Sinn Féin vol. 2 no. 93 (1911), 5). The Irish Catholic of May 1919 recounts a meeting of the Irish Vigilance Association, directed at ?keeping evil out of the country? and in particular ?stopping bad literature being dumped upon our shores.? (Mary Kenny, Goodbye to Catholic Ireland, (Sinclair-Stevenson 1997), 148-149). In a similar vein, marital breakdown was long perceived as a phenomenon that was extraneous to the Irish experience, a view underpinned by the constitutional ban on divorce that remained in place until 1996.

In the same way, the adoption of a constitutional amendment on abortion was seen in part as stemming the tide of international influences that, left unchecked, might wash up on Irish shores, undermining what was perceived as our ?unique? moral stance. Indeed, the 8th Amendment was motivated in part by a fear that Ireland?s courts might follow the US Supreme Court?s lead in Roe v Wade, despite clear indications from the Irish Supreme Court that this would not happen.

In his speech during the second stage of Dáil debates on the Eighth Amendment Bill, Dr Michael Woods of Fianna Fáil envisaged the Eighth Amendment as a beacon of moral light for our neighbours:

?In many countries the dignity of life has been undermined by the legislature in legalising abortion. We have only to look at Great Britain and the United States of America to see what could be done here? If we as a people mark our respect for the life and dignity of the unborn, who knows what ripples may flow throughout the world which has lost its reverence for life in the womb through the degrading practice of abortion.?

Conservative commentator Christie Davies has also written of the ban on abortion being an integral feature of Irish identity:

“?the prohibition of abortion is the central defining element both of Irish morality and of Irish identity. Should it crumble it will mark the death of moral Ireland.”

In spite of this claim, and despite the 8th Amendment, abortion has continued to be a feature of Irish life, albeit one played out predominantly on a British stage. Far from being a ?beacon of light? leading our neighbours away from rocky shores, Ireland has dealt with abortion simply by exporting it. As an attempt to stem the ?tide of abortion? the 8th Amendment has thus proved an abject failure. If anything, the 8th Amendment has simply delayed abortions taking place, leading to more complex procedures, with the consequent possibility of a heightened risk of health complications for the woman. The impact is particularly severe for the most disadvantaged of woman ? those who due to limited finances, limited social supports and precarious immigration status cannot easily travel to Britain. Those without immediately available resources face having to source money from moneylenders, at exorbitant interest rates, or delaying an abortion (thus pushing up the cost and risks involved). The distance involved adds to the risks. A delayed abortion combined with the rigours of travel may result in health complications arising during the return home. For instance, Ms A in A, B and C, having obtained a termination in Britain, bled profusely on the train from Dublin taking her home, and had to be hospitalised.

The availability of terminations in Britain has also allowed the State to fudge the issue of fatal foetal abnormalities, where a woman is pregnant but the child is unlikely to be born alive or live long after birth. Jennifer Schweppe (amongst others: see also here) has argued that a termination of such a pregnancy might potentially be lawful in Ireland on the basis that the foetus is not viable and thus not ?unborn? life for the purpose of the 8th Amendment. Indeed, in D v Ireland (before the European Court of Human Rights) the State itself invoked the possibility that abortion might be constitutionally permissible in such cases. Nonetheless, the Protection of Life During Pregnancy Act 2013 does not permit an abortion in Ireland in these circumstances, with the result that women whose pregnancies simply are not viable are effectively forced to travel to Britain (unless they wish to carry the child to full term; surely a distressing prospect). A recent, disturbing Irish Times report highlights the phenomenon of women travelling to Britain to abort unviable pregnancies and then returning to Ireland to deliver the stillborn children.

This great big national fudge might be more tolerable if Ireland actually followed through on its commitment to the unborn by robustly supporting parents and parenting; if it were both pro-pregnancy and pro-parenting. The valorisation of the unborn stands in sharp contrast to the inadequate and diminishing supports for people who are parenting, particularly those caring for children with disabilities. Ironically, (as I have previously highlighted) the enactment of the 2013 Act coincided with a paring back of supports to mothers, particularly lone parent mothers, with cuts in child benefit and restrictions being placed on the One Parent Family Payment.   Affordable childcare for parents remains elusive. Our pro-pregnancy policy is particularly ironic given the history of treatment of unmarried mothers in Ireland; a 1923 Act of the Oireachtas describes unmarried mothers as ?first offenders? and ?old offenders?, as if giving birth were a crime.

None of this is to suggest necessarily that Ireland must adopt the same policy as our neighbour. That said, it would be a useful exercise to consider seriously what we would do if the British ?safety-valve? were not available to women in crisis pregnancies.

Human Rights in Ireland >>

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