Fact-check: arguments around health and access to abortion

While reading the submission made by Doctors for Life to the Citizens’ Assembly, I found myself becoming curious about some of the statements made. There are no footnotes and no detailed citations of research papers in this submission, so I was working on the few references given and what I can find myself.

Nevertheless, I think that these legal and medical examples of statements for which I can’t find a reference are worth examining in some detail, as they are perennial contentions in the debate around the Eighth Amendment. I am, of course, as a non-expert on the medical side of this, open to evidence-based correction; my commentary is on facts and statistics, and I am attributing no ill intent to the authors.

To that end, the following is informed by my own background in Irish and human rights law, and the research I  conducted into the statements I found puzzling. Block quotes are directly from the submission. Any mistakes in analysis are, clearly, my own – I am not a doctor and I have never been one. I am a legal researcher, a bit of a data-hound, and excessively nerdy. Be warned: the following contains a lot of referencing.

Continue reading “Fact-check: arguments around health and access to abortion”

Submission to the Citizens’ Assembly on #repealthe8th

As the submissions have now gone live, I’m posting mine (made in a personal capacity) here for the record.


This submission is written by Sandra Duffy, a PhD candidate in human rights law working on issues of gender and the law, and a member of Lawyers for Choice. I urge the members of the Citizens’ Assembly to recommend the holding of a referendum to repeal the Eighth Amendment to the Constitution.

Since its inception in 1983, the Eighth Amendment has cast a considerable shadow over the provision of reproductive health services to the women and people of Ireland. The constraints placed on healthcare patients and providers, legal advocates, and lawmakers of this country by the Eighth fall far beyond what international human rights law considers to be admissible. Indeed, the existence of the Eighth leaves Ireland behind only Malta in terms of strictness of abortion regulation in Europe.

The Eighth Amendment was introduced in 1983 by the government of Taoiseach Garrett Fitzgerald. In the words of Michael Noonan, the then Minister for Justice, in the Dáil, the Amendment was proposed as follows:

“The existing statute law on the subject is contained in sections 58 and 59 of the Offences against the Person Act, 1861. The effect of those sections, broadly speaking, is to make it an offence unlawfully to procure an abortion. Until recent years, those provisions were regarded as adequate but developments, mainly in other countries, have taken place which have given rise to concern amongst many people. It has become apparent that judicial decisions concerning abortion can alter fundamentally what had been accepted to be the law, even to the extent of introducing what is virtually a system of abortion on demand.”

(quote from Dáil records, February 1983; emphasis added)

The Eighth Amendment, therefore, was instituted through fears of an activist judiciary – not only our own Supreme Court, as the Minister goes on to say, but also the European Court of Human Rights. This was outright legislative interference with the role of the Courts within the separation of powers. Abortion was already illegal in Ireland; the question of whether or not that legislation should stand, fall, or be modified should not have been reduced to a matter of an election-year promise by a set of politicians to enshrine a law relating to personal healthcare in the foundational document of our state.

 

In the 33 years since the Eighth was enacted, it has meant that the actions of legislators were necessarily limited to creating laws within its boundaries. However, successive governments have failed in even that limited obligation. Since the case of Attorney General v X was decided in 1992, the option had been open for the Oireachtas to legislate to allow abortion in cases where the life of the woman/pregnant person was at stake. It was to take twenty years and the tragic death of Savita Halappanavar for Enda Kenny’s government to pass the Protection of Life During Pregnancy Act 2013; twenty years of doctors feeling unable to provide necessary care for their patients for fear of legal ramifications; twenty years of people packing bags and sending themselves into temporary exile during what could well be one of the most difficult periods of their life; twenty years of desperate turns to unsafe methods of attempting to procure an abortion where pregnancy was too dangerous or traumatic or disadvantageous to bear. Successive governments, involving most of the main political parties and figures of our time, abdicated from this responsibility and continued to send our women away. This can go on no longer.

The country has moved on in its views on reproductive rights since the passage of the Eighth Amendment in 1983. At the time, the Amendment was carried with 67% of the votes in the referendum. This year, a poll conducted by the Irish Times found that only 18% of the country would favour leaving the regulation of abortion in Ireland as restrictive as it currently is. In 1974, the case of McGee v Attorney General, a case thought of as the foundation of privacy rights in Ireland, stated that

“It is but natural that from time to time the prevailing ideas of these [national] virtues may be conditioned by the passage of time; no interpretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts.”

The Justice was correct. The Constitution belongs to all of us as Irish citizens and residents. The presence of the Eighth Amendment has failed too many of us for too long. In the light of the opinion of our highest court and the opinion of our citizenry, it is only right that after three decades, the people should again be given a chance to speak.

 

Those of us who campaign for pro-choice lawmaking and healthcare provision do not just speak for ourselves. We speak for the marginalised groups in society who find it most difficult to access reproductive healthcare when they need it. We speak for the socioeconomically disadvantaged, who cannot afford to make the journey to the United Kingdom when they require an abortion, and for the migrants and asylum seekers who may not be able to travel out of Ireland at all. We speak for the transgender persons who may find that a pregnancy is detrimental to their mental and physical health, and for the lesbian and bisexual women who also find themselves sidelined in political debate. We speak for victims of rape and abuse, whose trauma is in almost all cases only compounded by the discovery that their abuse has left them pregnant.

And above all, we speak for the women of Ireland united: those who agree with us, those who disagree with us, those who have yet to voice their opinions. We speak for our mothers who have lived most of their lives without the right to choose; for the daughters of this generation, who cannot be left in the same predicament in which we find ourselves. We speak for each other, because no-one else will.

The question open to the Assembly is not whether you, yourself, would ever want to undergo an abortion, or whether your personal beliefs align with ours. The question you are being asked is whether you think we should be allowed speak our truth to power. We ask you for a referendum. We ask that the country gets to decide its own future: not the government, not the judiciary – the population of this land. We ask that you hear us, and you let us speak.

Resisting the New Normal

It’s been difficult, bordering on impossible, lately, to avoid the issue of commentary on tone and attitude around the campaign to repeal the Eighth Amendment. We are accused, in turn, of being alternately obstinate and flighty, bleeding-heart and obdurate, organised and disorganised, omnipresent but unsupported. We are the darlings of the media, but we don’t speak for the people; we have the support of some politicians but not the right politicians; we are outliers in public opinion, but we’ve also brainwashed the country.

And I don’t recognise us in these portrayals. I don’t recognise the bravery shown by families who have come forward with their own stories. I don’t recognise the rooms of eager young people ready to campaign for a referendum. I don’t recognise the dignity of activists who have been fighting on this issue since the 1983 referendum and who have not given up and will not give up. I don’t recognise our core message, which is that we support a right to choose and a right to support and freedom from stigma whatever choice is made.

If the campaign to repeal the Eighth was as it is portrayed in the media, I don’t think I’d want anything to do with it.

Thankfully, that is not the experience I have had as part of this movement. I have attended, participated in, hosted discussions; I have written hundreds upon hundreds of words and engaged with people from all over the country, and at no point have I experienced hostility or alienation, even from people whose politics and opinions do not map neatly onto mine.

When you see yourself misrepresented repeatedly, it’s easy to be frustrated. I resist that impulse. I ask, cui bono? For whose benefit are these things being said? Who stands to gain from delegitimising the pro-choice position? It is not the ‘centre’, the mass of moderate voters with an interest in social politics but without a drive to become an activist on either side. They do not gain from this. It is a politics of fear. It is a race to the bottom. In framing their argument as being on the side of the voter in the street, the anti-choice lobby seeks to position themselves as the centre. 81% of Irish people, this summer, told an Irish Times poll that they would support a liberalisation of abortion policy past that allowed by the Eighth. That other 19%, fewer than one in five, is a minority. Forgetting that is dangerous.

Because this is where we live now. In post-Brexit Britain and post-Trump America, in a Europe divided and an international order shifting ever more toward the extremist right, minority but vocal positions, pushing the politics of fear, have told their populations that they are the moderates, speaking up for the average person and attempting to normalise a social order built on intolerance and removal of human rights. Don’t be fooled. This is not normal. No part of this is normal.

Do I fear that a repeal referendum would fall at the last fence, like Clinton’s presidential bid or the unlikely, shocking result of the Brexit referendum? Of course I do. I’m human. I’m invested in this campaign and I want it to succeed, so naturally I fear the chance that it might not. But what we learn from the experiences of 2016, this annus horribilis in so many ways, is that fear is a weapon and it is being wielded against us.

Somehow a message of choice is being corrupted into something ugly; somehow people who believe in affirming human rights are being painted as intolerant. This. Is. Not. Normal.

Delegitimisation, then: cui bono? Those who are effecting the campaign to delegitimise, of course. The reason the anti-choice lobby do not want the Eighth removed is the same reason which spurred their forebears to amend the Constitution in the first place: they fear that a future activist government or Supreme Court bench will liberalise abortion laws in Ireland. Their position is built on fear. Their lobbying is based on pleas to emotion, often so divorced from fact as to seem ludicrous. They do not have the support of international human rights law. They do not have the support of medical science. It is so important that we do not let them position themselves as the new normal. They are not.

The lesson for Ireland from our international disappointments has to be as follows: we need to inform people about the law and the facts around pregnancy, abortion, and maternity services in Ireland. We need to rebut false promises and scaremongering, and at every point to reassert where the centrepoint of the country actually is. We need to understand that people are inherently rational, but that fear is the most powerful motivator in the arsenal of extremist tools. We need to show the Irish public that fear is not the only way, and that rather than an attempt to keep them in darkness, ours is a campaign of bringing these issues into the light.

Amnesty International’s founder, Peter Benenson, started the organisation with the philosophy that “it is better to light one candle than to curse the darkness”. Rather than giving in to frustration or letting ourselves be swayed or frightened by the politics of fear, we have to realise that, in the matter of human rights, we are the keepers of that flame. We will not lose this. We will not let ourselves lose this fight, and we will not let the Irish people be bowed by fear, intolerance, and oppression. This is too important.

in thanks for doctors for reproductive justice

‘So you open the chest cavity via the ribcage to expose the heart and pull back the pericardial membrane, yes?’

‘Right.’

‘Then you remove almost all of the diseased heart, leaving the left atrium behind so you can graft the new heart into the body – and this involves “carefully trimm[ing] and sew[ing]” the foreign muscle tissue until it fits the cavity left by the original organ?’

‘Right.’

The procedure remains no less shocking. The chest, held open by metal clamps, sees the surgeon’s hands reach to invade the very inviolate spaces of the patient’s innermost self. Clamps and scapulae sever muscle and veins, the exposed tissue shivering in unfamiliar fresh air, and “the specimen” when removed, and its replacement, brought into frame, look alien and wrong. It’s difficult to watch. Something deep in the centre of me is rebelling as I do so, finding it repulsive on a primal level.

And yet this is a heart transplant. It is necessary, it is routine, and it saves thousands of living adults and children every year. It is healthcare, and while I can tell you that on no account do I ever want to be either on the receiving end or the camera end of one, if I need it I will overcome my lack of enthusiasm for the unpleasantly, graphically surgical elements of the operation and thank the doctors every day for saving my life and health.

I will do the same if I ever need an abortion.

Shock tactic writing is easy to do and hard to read. Anti-choice campaigners understand this and they use it to their benefit, playing on that core of ourselves that does not like to think of our lives as things of blood and bone. It is easy and it is cheap to prey on the emotions of your audience with details from the parts of ER you watched with your eyes half shut. It is much easier than revealing the factual truth of the matter: blood is blood and tissue is tissue. You are comprised of blood and tissue. You, living adult reading right now, can describe every medical procedure you ever have in the worst terms possible, or you can say this:

I have a human right to the highest possible standard of health (Article 12).

I live in a society where socioeconomic conditions and the foresight of our forebears created a system wherein trained doctors deliver high-success, low-risk procedures to any member of the population who needs it.

These doctors train for years and then further years in a specialty to be able to handle the gory details of medicine with skill and visceral fortitude.

It demeans them and their work and the lives and health of their patients to use shock tactics to attempt to paint them as anything other than brilliant, hard-working, highly skilled individuals working on the front lines of society’s greatest needs.

Ann McElhinney’s Irish Times article is a prime example of this misdirection. In it, she endeavours to substitute raw shock value for understanding of the human rights of pregnant people. It is a fun-house mirror distortion of fact and it needs to be countered. It also demeans the work of the doctors invested in ensuring reproductive health and justice for their patients.

McElhinney has made a film about Dr Kermit Gosnell, a man who deserves neither the success nor the respect the title ‘Doctor’ should give. On this much we agree. Gosnell was not an abortion doctor. Gosnell was a criminal running a horrific, fraudulent, illegal enterprise. The Grand Jury report on his trial is incredibly difficult to read. His practice provided what he would have referred to as abortion services: in reality he delivered viable babies at a point far later in a pregnancy than would have been legal, and killed the living child after birth, making no attempt at terminating the pregnancy by medical means. He allowed women to die in his ‘care’; he left the care of women of colour and disadvantaged women to unqualified assistants but insisted he be in charge of procedures on white women; he left numerous ex-patients injured and hospitalised. He profited from administrative oversight to run a filthy, shambolic imitation of a medical practice, and he did so for years.

In terms of abortion doctors, Gosnell is to that profession what Sweeney Todd was to barbers.

Gosnell is not a benchmark by any means, but real abortion doctors in the USA are working every day under increasingly difficult conditions for themselves and their patients.

Let’s look at Oklahoma, for example, wherein McElhinney meets a young woman who was shown a foetal heartbeat by a nurse, which changed her mind about having an abortion. This is presented as an act of regulation-defying bravery according to the article, whereas in the context of Oklahoma’s abortion laws, it’s a particularly light straw on a particularly laden camel.

  • In Oklahoma a woman cannot have an abortion without mandatory counselling beforehand; this counselling includes “information designed to discourage her from having an abortion”. She must then wait 24 hours after this counselling to have the procedure.
  • Insurance, private, employer, or ACA, will only pay for abortion in the case of endangerment of the life of the pregnant person. Public healthcare will only pay for it in cases of life endangerment, rape, and incest. In the US context, this means many women – 69% in this 2013 report – are paying for abortion procedures out of pocket and thereby incurring hundreds or thousands of dollars of expense. For a young woman, this is not insignificant.
  • She must access abortion services before 20 weeks of gestation.
  • She will be accessing those services in that timeframe in one of the three clinics which look after women in her situation. They’re in Oklahoma City, Norman, and Tulsa. Oklahoma is 2.6 times the size of Ireland and has a population of 3.8million people. From 2015 until last month, it only had two abortion clinics.

Having overcome these hurdles and the incredible stress they must place on our young woman, is it any wonder that by the time the nurse breached regulations and had her patient listen to the foetal heartbeat, she could not go through with the procedure? Does it still seem like a brave act, or a medical professional placing more and greater stress on a patient in a vulnerable condition which dissuaded her from undergoing a treatment to which she had consented?

(While the focus of this post is on the misrepresentation of abortion doctors, I must also note that McElhinney does not tell us the reasons her Oklahoma interviewee gave for needing an abortion. Perhaps she does in the film, but it seems like a glaring omission from an article which presents in a negative light the decisions of two families not to continue with pregnancies which they did not wish to carry to term. Did Ms Whatley’s reasons meet with this seemingly arbitrary moral line?)

Abortion doctors in America work under difficult conditions. States have differing laws on term limits, regulations, methods, counselling, mandatory display of ultrasounds. The last five years have accounted for 30% of the new restrictions on abortion enacted since Roe v Wade in 1973 (although Whole Woman’s Health v Hellerstadt and the Supreme Court’s strike-down of overly restrictive operational requirements which were closing clinics across Texas has been a ray of light for them this year). They work in a context where they are aware that, like George Tiller, they could very well be killed for what they do; where their clinics could be bombed or be attacked by arsonists; where even on a good day they run a gauntlet of protestors who call them murderers outside the doors of their offices.

Writing an article wherein one introduces the subject via describing a man like Gosnell simply as “the Philadelphia abortion doctor convicted of murder” is unfair to them. Presenting a nurse who breaches regulations and further traumatises her patient as someone who prevented the patient “kill[ing her] baby” is unfair to them. Failing to address the innumerable lives saved by safe reproductive health procedures is unfair to them. Framing a dilation and curettage (D&C) procedure, used to empty the uterus after an aspiration termination – and indeed after a spontaneous miscarriage where tissue remains – and thereby reducing the risk of possibly life-threatening sepsis as “Any baby parts left behind could become infected and cause toxic shock” is unfair to them.

Shock tactics are easy. Medicine is hard. Reproductive health is often harder still. Legislating for reproductive justice in Ireland is going to be a fight and it’s going to be one that will take information and understanding and above all a commitment to centering the human rights of the pregnant person; a commitment to debunking the kind of scaremongering that comes from statements such as “there will… be bans on” [insert practice here]; and a commitment to understanding the role that medical professionals have in doing the difficult, unpleasant, explicit work involved in providing for our ongoing healthcare needs.

A reply to Senator Mullen on #repealthe8th

Much discourse of late has centred around the tone of the pro-Repeal movement in Irish life. We are accused of shrillness, of militance, of creating conditions hostile to the conduct of a ‘mature conversation’. To a certain extent, I understand. The question of where we should be and where we should be going, taking in all the elements of drafting legislation and medical regulation, is a complicated one, as evidenced by the multiple manners in which it is formulated and answered worldwide. Irish society has some difficult debates ahead of it between now and the calling of a referendum on the Eighth.

But are we really losing middle Ireland? If it’s the Ireland Ronán Mullen seems to live in, clearly we are.

I choose not to believe in that Ireland.

I choose to believe rather in the thousands and thousands of people who gathered to March for Choice in Dublin last weekend. I choose to believe in the writers of the #knowyourrepealers tag on twitter, which showed the range of ages, genders, backgrounds, life stages, and experiences involved in this campaign. I choose to believe in the majority of Irish people who want abortion decriminalised and believe that women should be offered choice over their own bodily autonomy. Are we reflective of this Ireland? Unequivocally yes.

Which Ireland do you choose to live in?

However, while there’s a platform given to the minority who cling to the Eighth as absolute, it’s sometimes necessary to spend time rebutting their more outlandish statements. Today’s article from Senator Mullen certainly fell into that category, failing to acknowledge context and facts in several areas. This is a reply to those particular points – let’s have that mature conversation now.

– Yes, three organisations received funding from the Open Society Foundation for their advocacy of sexual and reproductive health in Ireland. They’re Amnesty International, the Irish Family Planning Association, and the Abortion Rights Campaign. This is not news. These are organisations which produce open financial reports. Rather than protesting that an overseas funder gave money to them, perhaps it might be appropriate to reflect on Ireland’s situation being bad enough that philanthropists outside the country feel reproductive justice here is worth supporting.

– On that point, something else that seems to disappear in these pieces: the Eighth Amendment is not just an abortion issue. It affects the broader field of reproductive justice, which includes all issues relating to sexual health, pregnancy, and birth. The Eighth takes agency away from pregnant people and their doctors when it comes to all decisions around how the pregnancy is managed, how the pregnant person behaves and approaches medical decisions, and even the choices made by social workers around pregnant clients in crisis. Abortion is only one of the choices open to someone dealing with a crisis pregnancy. The pro-choice movement acknowledges this; it’s in our name. We support choice. The anti-choice advocates’ fixation on abortion when it comes to the Eighth is a severely limited viewpoint.

– The March for Choice received some coverage on RTE. However, all 20000-30000 of us were ‘balanced’ by also giving time to one spokesperson from the “Pro-Life” campaign. As for the amount of people there, it’s always difficult to estimate exact numbers at collective gatherings, so here’s some documentary evidence instead. Also, no mention of the Youth Defence gatecrashers with the ‘Abortion for terminally ill babies’ placard, wearing a Repeal jumper and attempting to usurp our message?

– Abortion campaigners are frequently asked where we’d draw the line. Full disclosure: this writer’s viewpoint is ‘as early as possible, as late as necessary’, however I accept that Ireland will most likely follow the removal of the Eighth with a more gradiated piece of legislation. I have a legal background; I believe that as it stands, Ireland is in breach of its voluntary international commitments to human rights. I think the international-human-rights-compliant draft legislation written by a group of feminist legal academics in 2o15 is a good potential model for the kind of legislation we can conceivably expect post-repeal.

– I am not a doctor, but a small amount of research has led to finding this report by the Royal College of Obstetricians and Gynaecologists on foetal awareness. They conclude that: the majority of abortions in the UK are performed between 7 and 24 weeks (page 14); that a foetus does not have sufficient nerve development for the possibility of feeling pain before roughly 24 weeks (pages 3-10); and it is unknown whether it is ever ‘conscious’ enough in utero to feel ‘noxious stimuli’ or pain (page 10). While there are some automatic responses to stress or sensation which can be interpreted from ultrasound images, there is no evidence for these having a biological basis for interpretation as ‘pain’. They also state that an anaesthetic given to the pregnant person before a surgical/D&C abortion procedure will transfer to the foetus (page 17), so in the very unlikely event it does experience negative sensation from the procedure, it will be anaesthetised by this. Another article from the British Medical Journal suggests that the nervous system for negative stimulus response is not fully developed until 26 weeks; however, as a matter of brain and psychological development, it cannot be said that even at this stage, a foetus will experience what we know as pain.

– Thousands of lives have not been saved by Ireland not having abortion. In order to save a life, the life must already be in existence. The unborn, as Irish law has it, is best described as a potential. This was even expressed in the X case itself, where McCarthy states that:

The right of the girl here is a right to a life in being; the right of the unborn is to a life contingent; contingent on survival in the womb until successful delivery.

– Simon Harris is correct in saying that there are mental health consequences for people having to travel for terminations. Source? The people who’ve travelled, including the incredible people of Terminations for Medical Reasons Ireland, who have done this under the hardest of circumstances.

– Which brings me to the final section of this article. I am not going to speak over the already-expressed reaction of Gerry Edwards from TFMR to this treatment of the trauma losing a wanted pregnancy caused his family and those who also advocate with TFMR. I support their cause 100% and it is hard to imagine the kind of mindset necessary for the linked response to generate no sympathy from the reader.

From the objective viewpoint, however, I will say the following: it is possible for a foetus to be both ‘a clump of cells’ from a biological viewpoint, and a much-wanted future baby from a parent’s viewpoint. Many of the people whose foetal remains are therein described as ‘debris’ were at that point making funeral arrangements and coping with loss. They did not have ‘sick unborn bab[ies]’. They had pregnancies which would never make it to term. They would never have that baby. It was not a matter of ‘car[ing] for’ an unborn baby. The choice was between living with the knowledge that that foetus would never grow into a child while waiting for it to stop developing in utero, or to terminate the pregnancy and allow the processes of grief and reclamation of one’s body to begin.

Whether that emotional investment is made or not does not depend on the existence of the foetus, but on the psychological state of the pregnant person. It is possible to understand that to some constituencies terminations are a medical decision to return one’s body to a non-pregnant state, and to others they are the end of a wanted pregnancy and a sad loss. Equally, it should be possible to consider pregnancy psychologically as sometimes a joyful occurrence, and sometimes as an unwanted physical state of the body.

No matter what your psychological state regarding the pregnancy is, and no matter how you feel about the choices and decisions ahead of you, you deserve choice. You deserve for your doctor to be able to have an open conversation with you and to lay all of your options on the table. You deserve to make that choice free of emotional and legal coercion and manipulation. You deserve better, in other words, than many of your elected representatives are willing to give you.