Abortion and Nation

The Politics of Reproduction in Contemporary Ireland

Lisa Smyth

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351961219
• Edition: 1
• Topic: Sciences sociales
• Subtopic: Sociologie

Abortion politics are contentious and divisive in many parts of the world, but nowhere more so than in Ireland. Abortion and Nation examines the connection between abortion politics and hegemonic struggles over national identity and the nation-state in the Irish Republic. Situating the abortion question in the global context of human rights politics, as well as international social movements, Lisa Smyth analyses the formation and transformation of abortion politics in Ireland from the early 1980s to the present day. She considers whether or not the shifting connections between morality, rights and nationhood promise a new era of gender equality in the context of nation-state citizenship. The book provides a new sociological framework through which the significance of conflict over abortion and reproductive freedom is connected to conflict over national identity. It also offers a distinctive in-depth consideration of the connection between gender and nationhood, particularly in terms of its impact on women's status as citizens; within the nation-state; within the European Union; and as members of a global civil society.

Chapter 1
Abortion Politics, the Nation-State and Globalization

Introduction

On 12th February 1992, a headline appeared on the front page of the liberal leftwing national newspaper The Irish Times, announcing 'State attempts to stop girl's abortion'. A fourteen-year-old pregnant rape victim, referred to as 'X', had been issued with a temporary High Court injunction, preventing her from obtaining an abortion, and from leaving the State for a period of nine months. The right to life of X's foetus, constitutionally recognized since 1983, was judged to outweigh her own rights to bodily integrity and freedom of movement. The news became the focus of extraordinary public controversy, as mass demonstrations demanding the removal of the injunction became daily events. The State's action, effectively compelling a fourteen-year-old to carry a pregnancy conceived through rape, was greeted with popular outrage. Characterizations of X and her family as respectable, middle-class, and law-abiding were particularly important in generating this public reaction. The significance of what were perceived as the exceptional circumstances of this case has had lasting effect on the abortion debate in Ireland, as journalist Aine McCarthy (2000) comments, and indicated a rupture of previous political affiliations. As the editorial of the same newspaper declared in response to the case, Ireland appeared to have 'descended into cruelty' in a way similar to explicitly undemocratic and tyrannical states.¹

Abortion Politics, Globalization and Nationhood

This book is interested in the effects this case had on the framing of Irish abortion politics, through which a coercive anti-abortion regime had operated legitimately, and with increasing momentum, during the previous decade. More particularly, what follows is concerned with the ways in which anti-abortion politics had operated historically through a politics of national identity, which relied on, and reproduced, constructions of Irishness in traditionally familial, patriarchal, and conservatively Catholic terms. The X case significantly unsettled these gendered and sexualized discourses of nationhood. The specifically familial context of the story produced a hugely sympathetic identification with X and her parents, in unprecedented terms, which popularly legitimized limited access to abortion. As Murphy-Lawless comments, people responded to the X case 'as if this were their own daughter' (1993:57). Younger women also responded in terms of identification with X herself. Not only did this shift arguments in favour of women's reproductive rights onto the quintessentially national terrain of the Irish family for the first time, it consequently undermined the previously hegemonic construction of the nation as essentially anti-abortion, copperfastened in 1983 through the 'pro-life' constitutional amendment.²

Two specific questions will be addressed in this book, concerning the production and circulation of political culture, key moments in what R. Johnson has described as the 'circuit of [cultural] production' (1995:584).³ Firstly, in what ways were constructions of an anti-abortion nationhood produced and consequently problematized in popular political culture following the X case? Secondly, how was the crisis over national identity addressed in official discourses, particularly concerning the privileged position of the nation in the republican state? The following discussion will provide an analysis of the production and reproduction of Irish political culture, in its popular and official aspects, in producing and responding to a major crisis. An overarching concern is with the ways in which apparently enduring political discourses can become destablized, as well as reconstructed in relatively new terms in response to political events.

Abortion politics in Ireland provides an important example of the ways in which global political and economic structures stimulate nationalist forms of politics, as well as producing political responses in global terms from nation-states (Stychin 1998:6). As we will see in what follows, the stimulus for anti-abortion politics in Ireland has emerged from a concern to mark Ireland out, using the liberal apparatus of global human rights, as a morally distinct nation-state. This has taken place in a post-colonial context where liberalism is perceived as a relentless global force which is antithetical to Irish national identity.⁴ At the same time, the Irish state has a strong interest in being recognized as a democratic state in a world of such states, and seeks to position itself as such, not least through its laws. This book is concerned with the tension between a response to globalization which involves marking national distinctiveness by recognizing foetal rights, while at the same time seeking recognition as an equal player in a world of liberal democratic nation-states and international institutions such as the European Union.

Before going on to consider these questions and tensions, I will outline in more detail the circumstances and immediate impact of the X case; its legal and political background; and the long-term legal and political effects of the case, both in relation to the Constitution, and in terms of political activism.

The X Case

The circumstances of the X case were precisely those that had been predicted by reproductive rights activists in the early 1980s, during the political campaign which had resulted in the constitutional recognition of foetal rights.⁵ The anti-abortion lobby had insisted that such predictions made no sense.⁶ At the time the story was initially reported, an application for the temporary status of the injunction against X to be made permanent was under the Court's consideration, and the Attorney General consequently declared the case sub judice, i.e., beyond public comment, until the Court announced a decision. Nevertheless, the controversy which initial reports of the case gave rise to, including the ban on public comment itself, became central to public debate. During this initial period of official silence, the X case was critically debated by the media,⁷ campaigners,⁸ and politicians themselves,⁹ particularly in the light of international attention,¹⁰ and the eruption of national and international protests against the Irish judicial action.

The official action, injuncting X from travelling abroad, was the result of a combination of a complex legal-political history and distressing personal circumstances. X was the victim of long-term sexual abuse by a friend's father, who was also a trusted friend of her parents.¹¹ Following the discovery of their daughter's rape and consequent pregnancy, X's parents agreed to support her desire to obtain an abortion. They reported the rape to the Gardai (police), in order to commence criminal proceedings. X's father inquired from the Gardai as to whether DNA evidence taken from aborted foetal tissue would be admissible in the rape trial. Since such evidence had never been presented in the courts, the Gardai referred the question to the Office of the Director of Public Prosecutions. The family were finally advised that such evidence would not be admissible. They left for Britain on 6th February, the same day that the injunction was issued. On hearing of the Court's action, however, the family immediately returned to Ireland before X had obtained the abortion. Upon return, X was diagnosed as suicidal and was placed under medical supervision.¹²

The injunction had been sought by the Attorney General, the chief legal officer of the State, whose office is constitutionally charged with the prosecution of crimes in the name of the People.¹³ He had been informed of the planned abortion by the Director of Public Prosecutions. As already mentioned, the 'unborn' have a constitutionally recognized right to life, which the State is obliged to defend. This right, usually referred to as the Eighth Amendment,¹⁴ had been incorporated into the Constitution following a referendum in September 1983, the outcome of an intense three-year campaign by anti-abortion groups, in the absence of any feminist campaign for abortion access.¹⁵ In granting the injunction, the High Court held that the risk to X's life from her suicidal state, the consequence of rape and pregnancy, 'is much less and is of a different order of magnitude than the certainty that the life of the unborn will be terminated if the order is not made' (Costello, J., in Attorney General v. X and Others [1992] Irish Law Reports Monthly: 410).

The publication of this decision ended the sub judice ruling, and the controversies raised by the case overwhelmed political debate on the streets, in the media, and in the Oireachtas (legislature). Massive public demonstrations against the ruling occurred daily. Students abandoned their classrooms to demonstrate outside government buildings. The singer Sinead O'Connor spoke publicly about her two abortions, and successfully demanded a meeting with the Taoiseach (Prime Minister), Albert Reynolds, himself only days in office, to discuss the case. Newspapers, talk-shows and current affairs programmes were absorbed with coverage of reactions to the case, and new political alliances emerged aiming at obtaining the repeal of Article 40.3.3°. Of central importance to the governmental response to the case was the international condemnation the High Court injunction received. This was particularly embarrassing at a time when Ireland held the Presidency of the European Union (O'Reilly 1992).

Significantly, it was the Government who persuaded the family involved to lodge an appeal against the injunction with the Supreme Court, and offered to cover all legal costs. The decision on appeal was delivered on 5th March, when the injunction was lifted by a majority of four judges to one. The decisions of the majority of the Court, published individually, relied primarily on a reinterpretation of Article 40.3.3°, for the first time emphasizing that the 'mother's' right to life be given 'due regard'. As Chief Justice Finlay defined it, abortion would be constitutionally permissible, '... if it is established as a matter of probability that there is a real and substantial risk to the life as distinct from the health of the mother, which can only be avoided by the termination of her pregnancy.'

Thus, the initial High Court ruling, that suicide did not constitute a substantial enough threat to a pregnant woman's right to life such as to justify abortion, was reversed. Another major ground for the Supreme Court's ruling was that the injunction had constituted an unwarranted interference with the authority of the family.¹⁶ The question of whether women's right to travel could be compromised by a competing foetal right to life had been raised but not resolved in this decision, although the Chief Justice had argued, in a non-binding (obiter dicta) part of his judgment, that it could be. In fact, a majority of three of the judges held that the right to travel was not absolute. Thus, Article 40.3.3° had facilitated the legalization, albeit severely limited, of abortion in Ireland, precisely what it had been designed to prevent.¹⁷ As the Irish Press editorial commented:

During that [1983] referendum campaign, opponents pointed out that cases such as this could arise, with girls and women being arrested at ports and airports on their way to Britain for abortion, or on their return. The claims were dismissed as scare stories by those backing the amendment. Now, suddenly, they are coming true with a brutality that even the critics would not have predicted (18th February 1992, p.8).

The Pro-Life Amendment Campaign

Prior to the X case, the Eighth Amendment had never been applied to prevent any woman from obtaining an abortion in Britain. Abortion had been a criminal offence since the passing of the 1861 Offences Against the Person Act, under British rule. As Randall comments, the insertion of the Eighth Amendment simply reinforced the existing prohibition (1986:67). Why was the Amendment ratified in the absence of any feminist activism on abortion?

The amendment had been sought at a time when Ireland was becoming increasingly open to international influence. The Pro-Life Amendment Campaign (PLAC) emerged at the end of the 1970s, provoking an intensely bitter conflict which, as Keogh argues, probably had no parallel in the previous fifty years of the State's existence (1988a: 152). Its purpose was primarily to counter what was seen, from a right-wing perspective, as the growing legitimacy of secular, liberal and feminist ideas in Ireland (Randall 1986). O'Carroll, for example, has argued that the 1983 referendum emerged from anxiety over the continuity of a 'traditionalist' national identity:

... abortion became a symbol which subsumed many of the core values of Irish identity - Catholicism, family, patriarchal domination, fear of sex and opposition to 'alien' ideas. In the circumstances, the futile pre-emptive strike against abortion is best seen as a defence of a threatened Irish identity and an aggressive reassertion of ultimate distinctiveness (1991:67).

The PLAC was formed not in reaction to any campaign or specific legislative proposal to legalize access to abortion, but rather in response to a range of cultural and legal shifts that had occurred since the late 1960s.¹⁸ These shifts had unsettled the post-independence conservative socio-political hegemony, through which the nationhood project had been defined and legitimized. The newly independent nation-state had been characterized from its inception by a sexual puritanism which authorized, for example, extensive state censorship; a ban on divorce; bans on married women working in the civil service, local authorities, and health boards; and a ban on the importation and sale of contraceptives.¹⁹ It was also distinguished by a patriarchal nationalist discourse of the 'blood and soi...