In this wintry economic climate many college students might glance about the job market and ponder how well they will look in a McDonald’s uniform. Tom Kelly has a suggestion however for the budding entrepreneurs; open an abortion clinic.
This might immediately seem strange because it is generally assumed abortions are illegal in this country. I would submit that this is incorrect for the following reasons.
The current law governing abortions is vague and in many circumstances non-existent. In 1982 the pro-life activists won a victory in passing the 8th Amendment to the Constitution, Article 40.3.3, a provision that acknowledges the right to life of the unborn.
However, it contains certain qualifications that will help your fledgling abortion clinic get off the ground.
The provision itself guarantees in its laws to respect ‘as far as practicable’, vindicate and defend the unborn’s right to life but it must do this ‘with due regard to the right to life of the mother.’
Therefore it would seem that if a pregnancy places the life of the mother at risk, the rights of the mother are pitted against the unborn. A court would have to decide whose rights will prevail.
The Supreme Court did decide this in the X case in 1992. This involved a 14 year old rape victim who had become pregnant and whose parents informed the Gardai that she would be travelling to the UK to obtain an abortion.
The Attorney General prevented her from doing so as he claimed it would be illegal because of Article 40.3.3. The Supreme Court disagreed in stating the right to life of the mother was in jeopardy due to the fact Ms X was suicidal because of the pregnancy.
The rights of the mother therefore take precedence over the unborn in Irish law. However whether Ms X could have had the abortion in Ireland was not raised as an issue, so the law remains silent on it.
As well as this her right to travel freely was another factor in the decision, not applicable obviously to abortions carried out within the State. Information related to abortion services in Britain is legally permitted to be distributed also but this could be due to freedom of expression and the right to right to form economic relationships, again not applicable to abortions carried out in this country.
The lack of any explicit law governing abortion services in the country was made clear by a recent European Court of Human Rights case taken against Ireland. The Court found that the lack of any law in this area violated the individual’s rights under the European Convention on Human Rights (ECHR), the right to private and family life).
This shows that there is insufficient law governing abortion in the State. The only law is Article 40.3.3 and that has been severely hollowed out by the X case and the subsequent European Court of Human rights cases.
The most recent Court of Human Rights case last year has prompted the government to set up an expert working group to ascertain what their options are. The subsequent report is expected in 6 months.
It is difficult to see how their conclusion could call for anything other than legislation which legalises abortion for woman whose pregnancy poses a substantial risk to their life. This is consistent with Article 40.3.3 which was designed to prevent to prevent Irish citizens from procuring an abortion, save for the direst circumstances.
This provision has appeared to be entirely powerless in practice to achieving its goal and would also appear to be powerless to block any legislation allowing abortions within the State. As well as this it fulfils our obligations under the ECHR.
Either that or the government introduces legislation banning abortions in the country outright but because of the X case and the right to life of the mother this would appear to violate the constitutional rights of the mother.
So, why wait 6 months? If there is no law regulating it and it is almost certainly legal, some plucky entrepreneurial student could cash in on what is an enormously lucrative business (it is estimated that in 2010 4,402 women travelled to Britain to procure an abortion) by getting in the door first.
Instead of making women whose lives are at risk feel like fugitives, provide the service here.
If put to a popular election, as it has been many times before, it is likely that a (slim) majority would reject the legalision of abortion but this does not render abortion illegal. Banning it outright has never been voted on.
Popular opinion does not make an issue illegal, if put to a vote the vast majority will vote not to pay taxes.
In these difficult economic times it is heart-warming to think that all the money being spent on abortion in Britain will inevitably be brought back here. Like it or not, the debate seem to be over.
