SHE IS NOT A CRIMINAL THE IMPACT OF IRELAND’S ABORTION LAW Amnesty International is a global movement of more than 7 million people who campaign for a world where human rights are enjoyed by all. Our vision is for every person to enjoy all the rights enshrined in the Universal Declaration of Human Rights and other international human rights standards. We are independent of any government, political ideology, economic interest or religion and are funded mainly by our membership and public donations. First published in 2015 by Amnesty International Ltd Peter Benenson House 1 Easton Street London WC1X 0DW United Kingdom © Amnesty International 2015 Index: EUR 29/1597/2015 Original language: English Printed by Amnesty International, International Secretariat, United Kingdom All rights reserved. This publication is copyright, but may be reproduced by any method without fee for advocacy, campaigning and teaching purposes, but not for resale. The copyright holders request that all such use be registered with them for impact assessment purposes. For copying in any other circumstances, or for reuse in other publications, or for translation or adaptation, prior written permission must be obtained from the publishers, and a fee may be payable. To request permission, or for any other inquiries, please contact [email protected] Cover photo: Stock image: Female patient sitting on a hospital bed. © ès/Corbis amnesty.org CONTENTS 1. Executive summary ................................................................................................... 6 2. Methodology ........................................................................................................... 11 3. In context: Abortion in Ireland .................................................................................. 13 International human rights obligations to address gender stereotypes ...................... 13 3.1 The Irish state and religious institutions enforce harmful gender stereotypes and have institutionalised violence against women and girls ....................................................... 14 3.2 A climate of stigma and intimidation ................................................................... 17 4. Ireland’s legal and policy framework governing abortion .............................................. 19 Criminal offences relating to abortion in Ireland ................................................... 19 4.1 Constitutional framework and the X case .............................................................. 20 4.2 The Protection of Life During Pregnancy Act (PLDPA) and accompanying guidance .. 21 4.3 The PLDPA does not protect women and girls ....................................................... 22 Ireland’s burdensome legal requirements contravene human rights standards and World Health Organization guidance on safe abortion services ................................ 25 4.4 The Department of Health’s Guidance Document for health professionals on the implementation of the PLDPA ................................................................................... 27 4.4.1 “Suicidal intent” ......................................................................................... 27 4.4.2 “Early delivery” ........................................................................................... 28 The Human Rights Committee’s Concluding Observations on Ireland (2014) ........... 28 4.5 Health care providers regard the PLDPA and accompanying guidance as retrogressive and dangerous for women ......................................................................................... 29 5. Restricted access to legal, life-saving abortion in Ireland ............................................. 31 5.1 When does risk to health become risk to life? Physical health grounds ..................... 31 International human rights standards on abortion reflect the link between risks to life and health ........................................................................................................ 31 Savita Halappanavar’s case ................................................................................ 32 5.2 Risk to life but not to health: An impossible legal fiction ....................................... 35 5.3 The impact of Savita Halappanavar’s death on women in Ireland ............................ 37 Lupe’s experience ............................................................................................. 38 5.4 A risk to life: The suicide exception ..................................................................... 39 Ms. Y’s case: Denied a lawful abortion ................................................................. 40 6. Impact of the Constitution’s Eighth Amendment protection for the foetus on the quality of health care pregnant women receive ............................................................................. 44 6.1 The impact of the Eighth Amendment on abortion-related care ............................... 45 6.2 The impact of the Eighth Amendment on non-abortion-related maternal health care . 46 Rebecca H.’s story ............................................................................................ 46 6.2.1 Eighth Amendment denies a pregnant woman dignity in death ......................... 48 Right to life protections do not apply before birth ................................................. 49 7. Criminalization of abortion in cases of fatal and severe foetal impairment ..................... 51 Nicola’s story ................................................................................................... 51 International human rights standards: Abortion on grounds of severe and fatal foetal impairment ...................................................................................................... 52 7.1 The impact of carrying a fatal foetal impairment pregnancy to term ........................ 53 7.2 Forced to travel: Cast out from the Irish health care system after a diagnosis of fatal foetal impairment .................................................................................................... 55 7.2.1 No support upon return ............................................................................... 57 7.2.2 Choices around severe foetal impairment ....................................................... 58 Laoise’s mother’s experience ............................................................................. 58 8. Criminalization of abortion in cases of rape ............................................................... 60 8.1 Abortion ban is another layer of trauma for rape survivors ...................................... 60 Asylum-seekers and sexual violence .................................................................... 61 8.2 Limited access to information for rape survivors ................................................... 62 8.3 Travel: Compounding psychological trauma and complicating access to accountability ............................................................................................................................. 63 8.4 Rape as grounds for a lawful abortion .................................................................. 64 Denial of abortion on grounds of rape: Torture and other ill-treatment .................... 64 9. Censorship and silence: Denial of information about abortion ...................................... 66 9.1 The Regulation of Information Act ....................................................................... 66 “Crisis pregnancy counselling” in Ireland ............................................................ 67 9.2 Restrictions on pregnancy counselling services and doctor-patient counselling under the Regulation of Information Act ............................................................................. 67 9.3 Impact of restrictions on women, doctors, and the doctor-patient relationship ......... 69 9.4 Denied critical health information and referrals due to Ireland’s Regulation of Information Act ....................................................................................................... 69 The denial and manipulation of pregnancy-related information violates fundamental human rights .................................................................................................... 72 9.5 Impact on the counsellor-client and doctor-patient relationship .............................. 72 9.5.1 Smear campaigns ....................................................................................... 73 UN Special Rapporteur on human rights defenders calls for protection of women, pregnancy counsellors and health care providers in Ireland ................................... 75 9.6 Restrictions on the provision of information about abortion services abroad to the general public ......................................................................................................... 76 International bodies condemn Ireland’s information restrictions ............................. 76 10. Ireland “exporting” its human rights obligations: Women left to find their own alternatives outside Ireland’s health system ................................................................... 78 10.1 Forced to travel abroad for health care services ................................................... 79 10.1.1 The logistical challenges of travelling abroad ................................................ 80 10.2 Lack of referrals and support from doctors and the impact on access to services .... 81 10.3 Financial barriers to travel ................................................................................ 82 10.4 The impact of travel on treatment options and on post abortion care ..................... 84 10.5 The stigma of travelling .................................................................................... 86 10.6 Marginalized girls and women face additional barriers to accessing abortion services abroad .................................................................................................................... 87 10.6.1 Asylum-seekers ......................................................................................... 88 10.6.2 Migrant women ......................................................................................... 90 10.6.3 Traveller women ........................................................................................ 91 10.7 Unable to travel: Suicide versus unsafe abortion ................................................. 92 A.F.’s story ....................................................................................................... 93 10.8 Forced to resort to home remedies or physical harm to induce an abortion ............. 93 10.9 Undertaking an illegal medication abortion in Ireland .......................................... 94 Sandra’s story ................................................................................................... 94 Áine’s story....................................................................................................... 96 11. Conclusion ........................................................................................................... 98 12. Recommendations ................................................................................................ 99 ANNEX: International human rights standards .............................................................. 103 I. International human rights law and standards require the decriminalization of abortion and that states ensure access to abortion when a woman’s life and physical and mental health is in danger, in cases of rape and incest and in cases of severe and fatal foetal impairment ........................................................................................................... 104 Ireland has an obligation to decriminalize abortion ................................................. 104 Restrictive abortion laws violate fundamental human rights .................................... 105 International human rights standards require access to abortion when a woman or girl’s life or physical or mental health are at risk ............................................................ 106 Abortion on grounds of pregnancy as a result of rape or incest ................................. 107 Abortion on grounds of foetal impairment .............................................................. 108 II. Censorship and denial of abortion-related information is a violation of fundamental human rights ......................................................................................................... 109 66 She is not a criminal The impact of Ireland’s abortion law 1. EXECUTIVE SUMMARY Every day, between 10 and 12 women and girls living in Ireland travel to England1 for an abortion. The majority of the women are aged between 20 and 34. Their reasons for terminating their pregnancies vary; however, their reason for travelling is the same. They cannot access safe and legal abortion services in Ireland, as procuring an abortion there is a criminal offence except where the pregnancy poses a “real and substantial” risk to their life. Human rights bodies have repeatedly held that restrictive abortion laws, including those that exist in Ireland, violate women’s and girls’ rights to life, health, privacy, non-discrimination and freedom from torture and other ill-treatment. The withholding and denial of abortion- related information to women, as Ireland’s Regulation of Information Act requires, also violates fundamental human rights, including the rights to information and freedom of expression. The findings of this report reveal violations of these human rights and demonstrate that Ireland is not implementing its international obligations to respect, protect and fulfil these rights. Human rights obligations require the decriminalization of abortion2 and that states ensure access to abortion, at a minimum, when a woman’s life and physical and mental health is in danger, in cases of rape or incest and in cases of severe and fatal foetal impairment. International human rights laws and standards are clear that women should not face criminal penalties for undergoing abortions. Health care providers should also not be criminally sanctioned for providing safe abortion services to women. Again, Ireland’s abortion law fails to comply with these human rights obligations. Ireland’s abortion law must be understood in context. The long history of the criminalization of abortion in Ireland is part of a broader social and political environment in which women and girls have been subject to strict, punitive social controls around their sexuality, in law, policy and practice. This history of institutionalized violence has produced a strong sense of stigma surrounding abortion in Ireland. Ireland has long had one of the world’s most restrictive abortion laws. For over 20 years, Ireland refused to engage in abortion law reform, despite repeated criticisms and calls for action from international and regional human rights bodies. Instead, the government has relied on the “safety valve” of women travelling to England and other jurisdictions, abdicating its responsibility to address the issue. “Out of sight, out of mind,” is how one woman 1 These statistics, based on data collected by the UK Department of Health Statistics, refer to women resident in Ireland who travelled to both England and Wales to access safe abortion services. These numbers are underestimates, however, as they do not include women who travel to Scotland or to other countries in Europe. They also fail to include women who do not provide their Irish address to clinics or hospitals in England and Wales, often in order to protect their confidentiality. 2 Decriminalization means that abortion is no longer regulated by criminal legislation, and is not a criminal offence in itself. Amnesty International June 2015 Index: EUR 29/1597/2015 She is not a criminal 7 The impact of Ireland’s abortion law described the Irish government’s approach. Recently, however, the Irish legislature was finally forced to act in order to comply with a decision by the European Court of Human Rights and to respond to the shocking, preventable and highly publicized death of Savita Halappanavar, a woman who was denied a medically-indicated abortion in an Irish hospital following a miscarriage. Yet, this recent reform has left Ireland’s legal framework on abortion largely unchanged. The Protection of Life During Pregnancy Act 2013 (PLDPA) criminalizes abortion on all but one ground. A woman may only obtain a legal abortion in Ireland if her life is at risk, including through suicide. Although ostensibly an effort to clarify Ireland’s legal framework and ensure access to abortion under the law, the PLDPA and its accompanying guidance are instead unclear, highly restrictive and provide little meaningful guidance. They offer little clarity into the circumstances in which women and girls may lawfully access an abortion, failing to define what constitutes a risk to life, as opposed to health. At the same time, the law and guidance introduce numerous barriers that must be overcome before a woman or girl may hope to qualify for a legal abortion. Women, health care providers and anyone who assists them face up to 14 years in prison for violating the PLDPA. The on-going lack of clarity in the law, and the threat of professional sanction and criminal prosecution for health care providers and any one else assisting them, means that pregnant women and girls in need of an abortion for medical reasons are essentially forced to wait until their condition deteriorates sufficiently in order to justify a medical intervention. The narrow construction of Ireland’s life exception means that longer-term risks to the life of a pregnant girl or woman, such as cancer or heart disease, are entirely disregarded. Further, the PLDPA and its accompanying guidance appear to have been designed to severely limit access to abortion services under the exception for cases of risk to life from suicide. In the first publicly documented case of the denial of a lawful abortion under the PLDPA, health care providers coerced a young, suicidal woman, pregnant as a result of rape, who qualified for a lawful abortion on suicide grounds, to continue with her pregnancy to viability and then deliver by caesarean section. The concern for the protection of the foetus trumped any consideration of the woman’s mental health and the consequent risk to her life. As this case also illustrates, the role of Ireland’s Eighth Amendment to the Constitution, which protects the foetus’ right to life on an equal footing with a woman’s, in shaping the health care that pregnant women receive cannot be underestimated. Deeply rooted in religious doctrine, the Eighth Amendment has resulted in a concern for foetal life taking precedence over the potential risks to the woman’s life and health. This reality is inconsistent with international human rights law, which does not recognize a foetal right to life and is clear that human rights apply after birth. Not only has the Eighth Amendment’s protection for a prenatal right to life fundamentally shaped the restrictive scope and content of Ireland’s abortion law, it has also had a negative impact on the quality of care that all pregnant women in Ireland receive, in the context of childbirth and even end-of-life care. Women that Amnesty International interviewed repeatedly expressed their distrust of the Irish maternity care system for this reason, and one Index: EUR 29/1597/2015 Amnesty International June 2015 88 She is not a criminal The impact of Ireland’s abortion law noted that “I would fear for my life to have another child in Ireland.” Ireland’s abortion law continues to criminalize abortion in cases of rape, incest and fatal or severe foetal impairment, perpetuating the suffering of survivors of sexual violence and of women and their partners already grappling with a devastating loss. Amnesty International spoke with many women, health care professionals and advocates who expressed their frustration and anger that abortion services were not legally available on these grounds and more broadly. In addition to criminalizing access to abortion services in Ireland, the Irish state also heavily restricts information about abortion services abroad, criminalizing the provision of information by health care providers and pregnancy counsellors that “advocates or promotes” the option of abortion. The underlying rationale for this censorship, as with Ireland’s abortion law, is the Eighth Amendment; the law aims to protect the foetus’ life by limiting women’s access to information on abortion. The combined chilling effect of Ireland’s Regulation of Information Act (1995), which prohibits ‘advocacy or promotion’ of abortion, and the criminalization of abortion means that even basic information about abortion and the abortion procedure might not be provided to women, either by her doctor or in a counselling session. The impact of these information restrictions is far-reaching: in the context of the interview process for this report, Amnesty International noted that interviewees were cautious about how they expressed themselves, citing the restrictions of the Regulation of Information Act, including when they expressed views on changes needed to improve the law. Despite these informational barriers, and other considerable financial and logistical challenges to travelling abroad for abortion, every year approximately 4,000 women and girls from Ireland travel to the UK and other countries in Europe for this medical service. These women and girls travel for a host of reasons: they may be carrying a foetus with fatal or severe impairment, they may be rape survivors, have health conditions or be struggling with economic or social challenges that mean parenting is not an option for them, or they may have chosen not to continue with a pregnancy for other personal reasons. What they share is the sense of exclusion from their health care system, the stigma of travelling, and the burden of secrecy and fear that comes with knowing they are doing something that is a criminal offence in Ireland. Some women interviewed by Amnesty International noted the harmful implications that travel had for their continuity of care and their physical and mental health. Forcing women to travel abroad for abortion care is not only discriminatory, it can also be an extremely traumatic experience, violating their right to health and, in some contexts, the right to be free from torture and other ill-treatment. Not all women and girls are able to exercise the freedom to travel. Marginalized women and girls, such as asylum-seekers, migrants and those living in poverty, may be trapped in Ireland, without access to necessary health care. Unable to afford the significant financial burden of travelling, or prohibited from travelling due to their immigration or dependent status, or simply too ill to travel, these women and girls are forced to carry their pregnancies to term, or to resort to dangerous or clandestine measures to terminate their pregnancies. This may result in violations of a number of their human rights, including their rights to life, health and in some cases, the right to be free from torture and other ill-treatment. Those who can’t travel become desperate. Some consider suicide or potentially life- Amnesty International June 2015 Index: EUR 29/1597/2015 She is not a criminal 9 The impact of Ireland’s abortion law threatening methods of self-induced unsafe abortion to be their only options. Other women and girls illegally purchase mifepristone or misoprostol, pills they use to unlawfully self- induce a medication abortion. Attempts to import these drugs through the mail will result in seizure by the Irish customs authorities; women must instead find ways to smuggle them into the country if they wish to use them for abortion. Medication abortion is a safe and internationally recommended option for terminating a pregnancy in the first trimester; however, the criminalization of abortion in Ireland means that women and girls may be taking these pills without effective medical supervision, potentially resulting in serious health complications. Across the many testimonies from women, health care providers and civil society organizations about the impact of Ireland’s restrictive abortion regime, there are significant recurrent themes that bear emphasizing. First, regardless of the law, women living in Ireland have – and will continue to have – abortions. World Health Organization estimates confirm that restrictive abortion laws do not reduce the number of induced abortions, as women will undergo abortions regardless of its legal status and lawful availability.3 Restricting access to safe and legal abortion in Ireland instead invariably leads to rights violations and disproportionately impacts those who are already marginalized or vulnerable, compounding the rights violations they experience. Without exception, every woman that Amnesty International spoke with, whether she travelled abroad for abortion care or remained in Ireland, experienced a violation of her right to physical and/or mental health. Further, in speaking of their choices to travel or to procure an illegal medication abortion in Ireland, women made repeated reference to the death of Savita Halappanavar and the impact it had on them, some fearing for their lives should they need to undergo a lawful abortion in Ireland. Women also consistently emphasized that having to travel abroad for an abortion made them feel like a criminal; many underscored that they hoped for increased access to lawful abortion in Ireland in their lifetime, so that their daughters would not have to suffer the same trauma of travelling abroad for abortion care. Most health care providers and counsellors similarly expressed frustration over Ireland’s restrictive abortion-related laws and emphasized how these laws severely hampered their ability to provide quality, ethical care and support to their patients and clients. Many called for Ireland’s Eighth Amendment and abortion-related laws to be repealed and for a constitutional and legal framework that upholds women’s and girls’ human rights. Amnesty International calls on the Irish authorities to take immediate steps to comply with their human rights obligations concerning abortion, including by:  Amending or repealing Article 40.3.3 (the Eighth Amendment) of Bunreacht na hÉireann, the Irish Constitution, so as to remove the protection of the right to life of the foetus, and enable the provision of a human rights-compliant framework for abortion and information, in law and in practice; 3 World Health Organization, Unsafe abortion incidence and mortality: Global and regional levels in 2008, and trends during 1995–2008, 2011. Index: EUR 29/1597/2015 Amnesty International June 2015 1100 She is not a criminal The impact of Ireland’s abortion law  Decriminalizing abortion;  Repealing the PLDPA and replacing it with a legislative framework that ensures access to abortion both in law and in practice, at a minimum, in cases where the pregnancy poses a risk to the life or to the physical or mental health of a pregnant woman or girl, in cases of severe and fatal foetal impairment, and in cases where the pregnancy is the result of rape or incest; and  Repealing the Regulation of Information Act. Amnesty International June 2015 Index: EUR 29/1597/2015