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May You See Your Children’s Children:

The Pro-Life Future for Ireland

Catherine Glenn Foster, M.A., J.D.

President and CEO

Americans United for Life

Bioethics in Law & Culture

Summer 2018     vol. 1  issue 3

Ireland, the lush green island nation in the North Atlantic known for its socially conservative, life-affirming laws and policies, has long been viewed as one of the world’s most stalwart defenders of life. In recent months and years, however, the eyes of the world have returned to Ireland, where the good people who value and affirm the dignity of every human life had for so many decades held the threat of abortion at bay, and where radical abortion activists have long bent their malice.

 

In May 2018, the longstanding friction between these two divergent moral and social worldviews came to a head with the referendum to repeal the Eighth Amendment to the Irish Constitution, which over the last 35 years has recognized and protected the right to life of unborn children. In a result that many Irish found deeply disappointing and even heartbreaking, the pro-life campaigners who sought to retain the life-affirming Eighth Amendment lost the referendum, and the government of Ireland appears to be surrendering to the demands of those who agitated for legalized abortion on demand.

 

But the pro-life advocates of Ireland are not surrendering and not giving up the fight. Despite their government’s hostility to their good-hearted efforts – as evidenced by Health Minister Simon Harris’s new proposal for free speech exclusion zones outside abortion facilities – there is still much that can be accomplished even at this troubling time, and the fight for every human being in Ireland to be welcomed in life and protected in law is far from over.

 

Yet the radical changes in Ireland must be acknowledged and reckoned with; regaining Ireland as a haven for equal rights will take dedicated, concerted effort. To accomplish this, pro-life advocates worldwide must look to the history of abortion law in Ireland over the last decades. The Irish pro-life community must then harness the power of facts and of life-affirming stories in order to regain public support. It would also be beneficial for Irish pro-life advocates to study aspects of the American pro-life movement and how the cause of life is being advanced in the United States, particularly via the legislative gains that are being achieved on both the local/state and national levels.

 

Modern Abortion Law in Ireland

 

In order to understand the current conflict over Irish abortion law, it is necessary to turn the clock back 35 years to 1983. Abortion had long been illegal in Ireland under the Offences Against the Person Act of 1861,[1]  but the United Kingdom had legalized abortion through 28 weeks of pregnancy in 1967, and the U.S. Supreme Court in 1973 had legalized abortion nationwide, for all nine months of pregnancy, for any reason. In many places, beliefs, attitudes, and laws about contraception and abortion were shifting. But in Ireland, support for all human lives was still strong, and good pro-life people were seeking a way to express and further solidify the pro-life heart of Ireland and to establish protections against potential judicial activism.

 

As part of the growing public conversation about abortion and abortion law in Ireland, Irish leaders reached out to Americans United for Life (“AUL”) to discuss sharing the American experience, and lessons and recommendations for Ireland. From the mid-1970s, AUL attorneys traveled from Chicago on multiple occasions to speak on abortion at conferences and town halls and to consult with Irish legislators and pro-life leaders. During a strategy session on one such trip, noted constitutional attorney Dennis Horan, who served as President and Chair of the AUL board for over 10 years until his death in 1988, proposed to John O’Reilly and other Irish pro-life leaders that they amend their constitution to affirm protections for unborn human life in order to forestall the risk of judicial activism leading to abortion on demand in Ireland as it had in the United States. When the pro-life movement in Ireland decided to move toward a constitutional amendment and began to lobby the government for a referendum, AUL shipped boxes of educational materials and other supplies to Ireland, embarked on a two-week speaking tour across Ireland, and advised on the draft language that eventually became the Eighth Amendment.

 

On September 7, 1983, Irish citizens voted on a referendum to add an eighth amendment to the Constitution of Ireland, which read:[2]

 

The state acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

 

The Eighth Amendment of the Constitution Act 1983 (“Eighth Amendment”) passed overwhelmingly by a two-thirds vote.  Only five of the then 41 constituencies voted no, four of them in Dublin, and even urban Dublin – with 11 constituencies in total – voted in favor. The Eighth Amendment was signed into law on October 7, 1983. Thus did Ireland add Article 40.3.3 to the Constitution to acknowledge the equal rights of mother and child and ban abortion in Ireland under most circumstances, making Ireland one of the strongest pro-life nations in Europe.

 

But there was to be no easy ending to the story of abortion law in Ireland. A number of cases were swiftly brought before the courts relating to the Eighth Amendment, its interpretation, and the provision of information and referrals to abortions abroad.[3]  And particularly from this point forward, much of the focus turned to individual “hard cases.” The first of the two best-known stories took place in 1992 and led to the referenda of 1992 and 2002.

 

In Attorney General v. X (the “X Case”) in 1992, a 14-year-old girl became pregnant as a result of rape and subsequently struggled with suicidal thoughts. She sought an abortion. The Supreme Court decided that she did have a right to an abortion, despite Article 40.3.3, because there was a “real and substantial risk” to her life. The teenager’s child was ultimately lost to miscarriage before she could obtain an abortion. However, this case reopened discussion and debate on the abortion issue in Ireland, and in particular certain statements that seemed to indicate that the right to travel could be limited in order to prevent an abortion where the mother’s life was not at risk. This led to three referenda held on November 25, 1992, the same day as the 1992 general election.

 

The first of the three referenda, the Twelfth Amendment, sought to exclude suicidal ideation as grounds for an abortion:

 

It shall be unlawful to terminate the life of an unborn unless such termination is necessary to save the life, as distinct from the health, of the mother where there is an illness or disorder of the mother giving rise to a real and substantial risk to her life, not being a risk of self-destruction.

 

It was defeated by a majority of nearly two-thirds. The Thirteenth Amendment sought to permit women to travel abroad for abortions; it passed overwhelmingly and was added to Article 40.3.3:

 

This subsection shall not limit freedom to travel between the State and another state.

 

The Fourteenth Amendment also passed, allowing information about abortions in other countries to be made available to women:

 

This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.

 

The Thirteenth and Fourteenth Amendments were signed into law on December 23, 1992. They were followed by the Regulation of Information (Services Outside the State for Termination of Pregnancies) Act 1995 to provide procedures for the distribution of information related to abortions offered outside Ireland; the President referred this bill to the Supreme Court prior to its enactment, and after arguments by assigned counsel on each side, it was found to be constitutional and was signed into law on May 12, 1995.

 

In 2002, the Twenty-Fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill 2001 (bill no. 48 of 2001) was put forward by the Fianna Fáil-Progressive Democrats coalition government being led by Taoiseach Bertie Ahern as part of a proposed comprehensive package relating to abortion. The bill again attempted to exclude suicide as legally recognized grounds for abortion, and would have introduced new penalties of up to 12 years’ incarceration for anyone who performed or assisted in an abortion. It would have provided for abortion to be regulated by the proposed Protection of Human Life in Pregnancy Act 2002, the text of which was included in the text of the Twenty-Fifth Amendment referendum, and which would have been afforded the same deference as constitutional provisions and would only have been amendable by referendum. Like the prior such referendum, it was defeated in a referendum held on March 6, 2002, but by less than 1% - a much narrower margin than the Twelfth Amendment.

 

In 2005, three women pseudonymed as A, B, and C brought suit in the European Court of Human Rights (“ECtHR”), claiming that Irish abortion laws were restrictive and vague and violated several provisions of the European Convention on Human Rights (“ECHR”), formally known as the Convention for the Protection of Human Rights and Fundamental Freedoms. The case of A, B and C v. Ireland was heard before the Grand Chamber of the ECtHR and decided on December 16, 2010. The ECtHR rejected all but one of the numerous arguments advanced by the plaintiffs, including that the privacy provisions of Article 8 of the ECHR confer a “right to abortion”: “Article 8 cannot . . . be interpreted as conferring a right to abortion, the Grand Chamber concluded.”[4]  The ECtHR deemed A, B, and C’s claims relating to ECHR Article 3 (on the right against inhumane and degrading treatment) and C’s additional claim relating to ECHR Article 2 (on the right to life) as “manifestly ill founded.”[5] However, the ECtHR also held that Ireland had nonetheless breached Article 8 of the ECHR as related to the third plaintiff, C, by not providing a procedure by which she could ascertain whether she qualified for a legal abortion in Ireland since she believed that her pregnancy was life-threatening.[6]

 

The Irish government responded by convening an Expert Group on Abortion to address the judgment. The group reported its findings to the Department of Health on November 13, 2012, opining that Ireland was obligated to implement the ECtHR decision and recommending legislative reform.

 

Shortly thereafter, on November 15, 2012, news of the second “hard case” story broke. Savita Halappanavar, a 31-year-old dentist, had been told she was having a miscarriage. She asked for an abortion, but it could not be done because the child was still alive, as evidenced by the heartbeat. While she did ultimately have the procedure once her child had died and the child’s heartbeat had stopped, she died of septicemia at University Hospital Galway one week after the initial miscarriage diagnosis. Her death led to protests and a public investigation by the Health Service Executive, which determined that her death resulted from inadequate assessment and monitoring and a failure to follow the standard of care. The investigation report recommended constitutional and legislative change.

 

In 2013, based on the recommendations of the 2012 Expert Group on Abortion, Ireland enacted the law currently governing abortion in Ireland, the Protection of Life During Pregnancy Act of 2013, which defined the circumstances required for a legal abortion in Ireland: risk of loss of life from physical illness, risk of loss of life from physical illness in emergency, or risk of loss of life from suicide. A woman seeking a legal abortion in Ireland under this law would have to be examined by an obstetrician and a relevant specialist. A woman with suicidal ideation would have to be examined by three specialists. And if the specialists refused to certify a legal abortion, the woman could appeal their assessment. The President convened the Council of State to consider the measure’s constitutionality, and signed the bill into law on July 30, 2013. The Committee of Ministers of the Council of Europe found that this closed the A, B and C v. Ireland case.

 

Yet with the power of Savita’s story behind them, along with shifts on other social issues and an increasing recognition of human rights generally, abortion activists launched a renewed push to overturn the Eighth Amendment. Over the course of the last several years, Irish citizens were confronted with intensive pro-repeal lobbying and public reeducation campaigns nationwide to begin to sway the populace.

 

These efforts met with success, and Ireland decided to hold a referendum on the Eighth Amendment, entitled the Thirty-Sixth Amendment of the Constitution Bill 2018 (“Thirty-Sixth Amendment”): yes to repeal the Eighth Amendment, no to retain it. The Thirty-Sixth Amendment would strip the language of the Eighth, Thirteenth, and Fourteenth Amendments from the Irish Constitution, and replace the entirety of Article 40.3.3 with the following text:

 

Provision may be made by law for the regulation of termination of pregnancy.

 

The government pledged that if the amendment were to be repealed, the Oireachtas would pass legislation by the end of the year to replace the Protection of Life During Pregnancy Act 2013 and to allow abortion on demand up to 12 weeks, and beyond in cases of risk to the mother’s life, medical emergency, or fatal fetal diagnosis. Some sources move the timeline up still further, with legislation introduced in the Dáil before the summer recess, to be signed into law by the president in the autumn.

 

The bill was introduced before the Oireachtas on March 9, 2018, by the Fine Gael minority coalition government, and had passed through both houses on March 27, 2018. Proponents both of repeal and of retention campaigned heavily on the ground, in the media, and on social media – despite some setbacks[7] – and the repeal activists’ significant lead began to shrink through grassroots efforts. The referendum was held on May 25, 2018. With turnout of about 64%, 66.4% of the voters elected repeal – to allow the government to legislate on abortion – and 33.6% voted to retain the life-affirming Eighth Amendment. Only Donegal voted 51.9% against repeal. The Thirty-Sixth Amendment, to repeal the Eighth Amendment, will take effect once the President has signed it into law.

 

The Power of Facts: The True Story of Irish Women’s Health Under the Eighth Amendment

 

The vote against Amendment 8 was troubling for a number of reasons, not the least of which is the fact that existing medical data showed that maternal health for Irish women under the law has been better than maternal health for women in surrounding countries. A 2012 study of Irish data compared maternal mortality and maternal health trends in Ireland with those in England, Scotland and Wales.[8] The study compared the populations living in Ireland and in Northern Ireland (which has strict abortion laws, like Ireland) with those in Scotland and England, and examined women’s health trends between 1969 and 2009. Among the most significant findings, the rates of stillbirths in Ireland and in Northern Ireland are significantly less than similar rates in England and Scotland. Rates of stillbirth per 1,000 live births were 3.8/1,000 in Ireland and 4.1/1,000 in Northern Ireland, compared to 4.9 in England and 5.1 in Scotland. The study further found similar contrasts in the rates of infants with low birth weights. Low birth weight infants (<2,500 grams) increased in England and Scotland as compared to Ireland (39.7/1,000 live births in Ireland, 56.3/1,000 in England, and 52.3/1,000 in Scotland). These findings are consistent with previous studies that have found higher rates of stillbirths, premature births, and low birth weight infants in women with a history of induced abortion.

 

The Irish study also found that maternal death rates were significantly higher in the English/Welsh populations and Scottish populations (10/100,000 in England/Wales, and 10-12/100,000 in Scotland), compared to the Irish population (1-2/100,000 live births in Ireland).[9]  Legalizing abortion in Ireland tragically threatens to reverse these positive Irish health factors for women’s lives.

 

The Power of Story: The Outsized Impact of Story in Ireland’s Abortion Law Outcomes and Sharing Real-World Stories of Women Who Have Been Harmed by Legalized Abortion

 

The Irish experience highlights the disturbingly outsized impact of individual anecdotal stories and personal experiences that have appeared to significantly impact public opinion. Two stories in particular have played a pivotal role in reworking Irish beliefs, morality, and culture over the last 26 years.

 

First, in 1992, a 14-year-old girl who was a ward of the state and had been the victim of statutory rape by a neighbor in December 1991[10] sought an abortion, citing suicidal ideations. She and her family planned to travel to Britain for the abortion, but first contacted the Garda Síochána Irish police force to ask if the child’s DNA would be used as evidence in court. When the Attorney General, Harry Whelehan, heard of this plan, he turned to the courts in the X Case, seeking an injunction under Article 40.3.3 of the Constitution of Ireland (outlawing abortion). Mr. Justice Declan Costello of the High Court granted the injunction in February 1992. The injunction was appealed to the Supreme Court, which overturned it in a 4-1 decision in March 1992. The Court decided that, despite the Eighth Amendment, a woman had a right to an abortion under Article 40.3.3 if there was what they deemed a “real and substantial risk” to her life, including the risk of suicide. Shortly after the judgment, X miscarried. It was the X Case that spurred on the three referenda held in November 1992, and resulted in articulated rights to travel for abortion and to give and receive information and referrals for abortion abroad.

 

The second story is that of Savita Halappanavar in 2012. A number of popular articles highlighted the claimed impact of the story of Savita on the Irish vote. Savita’s father endorsed the campaign to repeal the Eighth Amendment.[11] But the notion that the tragic death of Savita Halappanavar shows the dangers of abortion prohibitions is not based on reliable data.[12] RTE, Ireland’s National Public Radio, reported that the Health Information and Quality Authority (HIQA) “report on the  Savita Halappanavar case finds ‘basic care’ failures.”  The main documents in the case showed that the death of Savita Halappanavar was due to “inevitable miscarriage” at seventeen weeks and the failure to properly diagnose and treat sepsis (infection), and had nothing to do with the legal status of abortion in Ireland generally. If the hospital had only recognized the life-threatening situation, they could have followed recognized standard of care, but they did not recognize that she had sepsis. The tragedy is that the story of a rare and extreme medical condition that wasn’t impacted by the Eighth Amendment resulted in the complete repeal of legal protections.

 

These two stories, in particular, have been highlighted with the aim of building a human connection between Irish voters and women seeking abortion, and pressing toward a vote for repeal. Sadly, the stories of the many women – including in Ireland, and in America where legalized abortion is widely available – who have been harmed and even killed by theoretically safe and legal abortion,[13] and those of the women who regret their abortions are not similarly advanced. In a battle where the personal connection can make the difference between a yes vote and a no vote, positive, life-affirming stories and stories of the harms of abortion are critical. Moreover, it is crucial that we affirm the dignity and the humanity of those women whose stories do not fit within the pro-abortion mantra.

 

But the pressure from these stories did not end even after the referendum on May 25. After the results were announced, Taoiseach Leo Varadkar, the Irish prime minister who supported repeal of the Eighth Amendment, emphasized the story and the personal element to reporters gathered outside the Dublin Castle government complex, saying, “No more doctors telling their patients there is nothing that can be done for them in their own country. No more lonely journeys across the Irish Sea. No more stigma. The veil of secrecy is lifted. No more isolation. The burden of shame is gone.”

 

Quotes from some Guardian readers on the repeal vote in May betray the talking points and the overly trusting nature of many who voted for legalized abortion. One retiree expressed hope that pro-life advocates will be able to support the result. A student called peaceful sidewalk counselors “hurtful and distasteful” and hoped that the “no side [will] respectfully accept this democratic result” – in essence, ceding the war for respect for all human lives because of a lost battle. And a mother who wrote in could have been echoing U.S. President Bill Clinton’s 1996-era “safe, legal, and rare” talking points:

 

I also hope that there will be sufficient supports and education put in place with a target of Ireland having the lowest abortion rate in the world. Abortion should always be the last resort and I think targeting a very low rate through proper education and empowerment of women, men, and children combined with proper healthcare and social supports is something both sides of this campaign can support.[14]

 

As has been borne out by the American experience, one does not reduce abortion by allowing businesses that make money on abortion and are incentivized to promote abortion to operate legally and openly.

 

And some are further extending the stories to Northern Ireland, to which the British 1967 Abortion Act was never extended, and where abortion remains banned except where the life or mental health of the mother is at risk. British Member of Parliament, Secretary of State for International Development, and Minister for Women and Equalities Penny Mordaunt tweeted: “Based on the exit poll, a historic & great day for Ireland, and a hopeful one for Northern Ireland. That hope must be met. #HomeToVote stories are a powerful and moving testimony as to why this had to happen and that understanding & empathy exists between generations. #trustwomen.”[15] Likewise, British Member of Parliament Stella Creasy has announced that she plans to campaign for “legislation to bring the UK’s abortion laws into the 21st century and to make sure all our citizens are given equal access to their reproductive rights,” adding, “We cannot let Northern Irish women be left behind.”[16] Similar statements have been made by British politicians Owen Smith, the former Shadow Secretary of State for Northern Ireland, and Naomi Long, leader of the Alliance Party of Northern Ireland and former Member of Parliament. At the victory rally for the Thirty-Sixth Amendment, Sinn Féinn leader Mary Lou McDonald hoisted a sign reading “The North is next . . . .”[17] However, most politicians in Northern Ireland, irrespective of party, do not favor legalizing abortion, and Democratic Unionist Member of Parliament has pushed back on the abortion proponents, declaring that Northern Ireland “should not be bullied into accepting abortion on demand” and that the “settled will of the people has been to afford protections to the unborn life and protect the life of the mother.”[18]

 

This is, sadly, no surprise. As goes the trajectory of the abortion/Repeal the Eighth campaign, so goes the trajectory of pro-abortion forces in the world as they implement a “no nation left behind” strategy. Abortion advocates at international abortion-advocacy Women Deliver conferences speak of exporting abortion on demand to every nation, “leapfrogging” pro-life nations like Chile to enact expansive abortion rights in politically receptive nations while isolating those that continue to affirm the pro-life position as well as both fighting to change life-affirming laws and subverting such laws. One piece of the answer to such guerrilla-style warfare must be awareness and advancement of stories that promote life and depict positive outcomes from sometimes difficult circumstances.

 

The American Experience and Its Applications to Ireland’s Defense of Life

 

Irish pro-life leaders may look to the American experience for some small measure of comfort, as well as applications from the fight for life in the United States. Once pro-life leaders in the U.S. recovered from the initial shock and devastation of the sweeping Roe ruling in 1973, they moved forward with many different legislative and courtroom strategies. Ireland may follow that same path. And critically, repeal of the Eighth Amendment – constitutional limits – does not mean constitutionally mandated abortion for Ireland, nor does it dictate what legislation might be adopted in Ireland or the ultimate breadth of that legislation. There is significant room for various legislative limits. Like pro-life advocates in the U.S., Irish advocates should seek to regulate abortion facilities, ensure at a minimum full informed consent, and develop a coherent system of abortion data collection, reporting, and analysis to better understand how abortion is really practiced.

 

Looking back at the American experience with abortion law, by 1973, a number of U.S. states had already legalized abortion, at least in limited circumstances, but the majority of U.S. states still banned the procedure. But in 1973 in Roe v. Wade, 7 of the 9 Justices on the U.S. Supreme Court voted to legalize abortion nationwide, for all nine months of pregnancy, for any reason. Things looked bleak. Then, people began taking action, attending and leading rallies and marches, and establishing pro-life educational and healthcare alternatives that have led to, among other accomplishments, the vast network of more than 2500 pro-life pregnancy resource centers we have today. These centers outnumber abortion centers 5 to 1 and offer a broad range of support, from practical counseling and training to concrete resources such as diapers, formula, and baby clothes. Americans also began to work through the law to save lives and  protect women’s health, and to shape and build a culture of life.  One example is the Hyde Amendment, which Congress passed in 1976 to prohibit federal tax funding for elective abortions. It is estimated that the Hyde Amendment, which Americans United for Life defended before the U.S. Supreme Court, has saved more than 2 million lives.

 

State-based legislative gains have helped turn the tide, as well. In those first years after Roe v. Wade voided nearly every state law on abortion, states started trying to enact common-sense abortion regulations, to push back on the abortion extremism that had been foisted on them by the highest Court in America.[19] In the first five years, states adopted 203 restrictions, primarily health and safety standards, parental involvement, gestational limits, and critical conscience rights. Soon, the battle moved to abortion funding, and if taxpayers could be forced to fund elective abortions. In the first ten years after Roe, 1973-1982, states averaged 38 pro-life bills signed into law each year.

 

Over the next twenty-eight years, from 1983-2010, the states passed 406 pro-life laws, an average of 14 each year, focused on giving women the time they need to make such a decision, as well as partial-birth abortion limits. The Supreme Court upheld these restrictions, but much of the pro-life community’s energy in those years was being spent in the court system. One particularly tough year, the pro-life movement only got three good pro-life bills passed into law. And every time American pro-life advocates saw an opportunity to overturn Roe, they were disappointed.

 

But in 2010, after American pro-life advocates had worked for decades in the political system at both the national and the state levels, the 2010 midterm elections sent proudly pro-life elected officials to state capitals across the country. And 2011 was the start of a new golden age in pro-life law and public opinion. Since January 2011, the states have passed 423 pro-life bills, like full informed consent for women and girls considering abortion, parental involvement, chemical abortion limits, taxpayer funding restrictions, and gestational limits. The 401 bills passed just from the 2011-2017 sessions account for more than one-third of all the pro-life laws since Roe - an average of nearly 60 new laws every year. And the progress continues, with more than 60 pro-life bills passed into law during  the 2018 state legislative sessions.


The roster of states that have passed strong pro-life protections is impressive. Twenty states have passed limits on abortions after 20 weeks, or five months, when science has shown that unborn children can feel pain. Thirty-seven states have enforceable parental involvement laws. The laws of forty-one states limit abortion practice to physicians only. Twenty-four states have enforceable abortion clinic regulations, and thirty-three states have enforceable informed consent laws. And thirty-two states and the District of Columbia follow the taxpayer funding limitations of the federal Hyde Amendment.

 

All these pro-life laws, coupled with increasing public awareness of abortion and disdain for it, are resulting in real-world lives saved. Abortions in America are now at their lowest rate since before Roe (14.6 abortions per 1000 women), down nearly 50% since 2006. And abortion clinics are closing by the hundreds. The Guttmacher Institute, founded as the research arm of Planned Parenthood, reports that the number of abortion facilities declined 6% between 2011 and 2014, from 839 to 788, and that 90% of U.S. counties have no abortion facility.

 

Gains are being made at the federal level also. In January 2017, President Trump reinstated the Mexico City Policy, which withholds funding from foreign and international nongovernmental organizations that perform, counsel, or lobby for abortion. While this policy has been in effect in Republican administrations since it was first enacted in 1984, President Trump expanded the Mexico City Policy to apply to any organization, not only family planning organizations, and to broaden the U.S. global health assistance funding programs to which the funding ban applies. Then, several months later, the Trump administration ceased funding the United Nations Population Fund due to its support of and complicity with China’s cruel forced population control and abortion policies, redirecting $32.5 million in foreign aid to other family planning and health programs. And more recently, President Trump has moved to allow states to block Planned Parenthood from receiving federal Title X funds.

 

Perhaps most importantly, after forty-five years of opposition to abortion on demand under Roe, public opinion is on the pro-life side. The latest Gallup polling numbers on abortion show that the percentage of Americans who self-identify as “pro-life” has skyrocketed by 15% since the mid-1990s and now totals 48%, while the percentage of Americans who self-identify as “pro-choice” has plummeted by 8%, to 48%. Then when those politically loaded terms “pro-life” and “pro-choice” are removed, the true difference in beliefs really begins to reveal itself, with 48% of Americans believing abortion to be morally wrong and only 43% believing it is morally acceptable. And critically, most Americans, 53%, believe that abortion should be legal in no or only very limited circumstances, which would require Roe to be overturned. This demonstrates that the more Americans learn about abortion and get to the facts of the issue rather than just the political rhetoric that surrounds it, the more life-affirming their positions become. The majority of Americans reject Roe. They want major rollbacks on legalized abortion, and they want to stop funding elective abortions with taxpayer dollars.

 

Irish pro-life advocates may consider all of these categories of legislation, and be heartened by the perseverance of the American pro-life movement, its innovative methods, and the concrete results that have emerged in the American abortion rate and abortion polling.

 

Conclusion

 

There remains hope for Ireland. While it appears that fair nation may be looking toward a future in which lives will be lost and women’s health may suffer, with the power of story and the strength of well-crafted legislation that protects both women and their unborn children, Ireland can and will make gains against the culture of death that so recently ruled the day. A battle has been lost, to be sure, but not the war.

 

In the Evangelium Vitae, Saint John Paul II clarifies the fundamental grappling everyone must engage in as a part of advancing recognition and respect for the inherent dignity of every human being:

 

In our present social context, marked by a dramatic struggle between the “culture of life” and the “culture of death,” there is need to develop a deep critical sense, capable of discerning true values and authentic needs.

 

What is urgently called for is a general mobilization of consciences and a united ethical effort to activate a great campaign in support of life.[20]

 

In Ireland in recent months, that struggle has increasingly revealed itself. But the good pro-life people of Ireland have not given up hope. They are forming coalitions, preparing to share the facts, and girding themselves for the legislative battles to come. Ere long, the Irish pro-life community will see renewed progress. “Thus may the ‘people for life’ constantly grow in number and may a new culture of love and solidarity develop for the true good of the whole of human society.”[21]

_______________________________

[1] The Offences Against the Person Act of 1861 provided:

 

Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or not be with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of a felony, and being convicted thereof shall be liable to be kept in penal servitude for life. (Section 58, as amended.)

 

Whoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanour . . . .” (Section 59.)

 

Additionally, the Civil Liability Act of 1961 provides that “the law relating to wrongs shall apply to an unborn child for his protection in like manner as if the child were born, provided the child is subsequently born alive” (Section 58), and the Health (Family Planning) Act of 1979 reaffirms Ireland’s prohibitions on abortion:

 

Nothing in this Act shall be construed as authorising –

(a) the procuring of abortion,

(b) the doing of any other thing the doing of which is prohibited by section 58 or 59 of the Offences Against the Person Act, 1861 (which sections prohibit the administering of drugs or the use of any instruments to procure abortion)

or,

(c) the sale, importation into the State, manufacture, advertising or display of abortifacients. (Section 10.)

 

[2] Prior to the Eighth Amendment, Article 40.3 of the Irish Constitution read:

 

1 The State guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

 

2 The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.

 

[3] See, e.g., ECHR 2032 at 27-28.

 

[4] ECHR 2032 at 214.

 

[5] Id. at 159, 165.

 

[6] Id. at 267.

 

[7] See, e.g., Michael Brendan Dougherty, Silicon Valley Deletes the Pro-Life Campaign in Ireland, National Review Online (May 9, 2018), available at https://www.nationalreview.com/2018/05/silicon-valley-deletes-the-pro-life-campaign-in-ireland/.

 

[8] See generally Clarke Forsythe, The Medical Assumption at the Foundation of Roe v. Wade & Its Implications for Women’s Health, 71 Wash. & Lee L. Rev. 827, 856-858 (2014).

 

[9] It should also be noted that a study of abortion law in Chile has similar findings: maternal mortality declined significantly after Chile’s abortion prohibition was enacted in 1989, from 41.3 to 12.7 in 2003, a 69.2% drop.  Elard Koch and John Thorp et al., Women’s Educational Level, Maternal Health Facilities, Abortion  Legislation and Maternal Deaths: A Natural Experiment in Chile from 1957 to 2007, PLOS ONE, May 2012, available at http://www.plosone.org/article/fetchObject.action?url=info%3Adoi%2F10.1371%Fjournal.pone.0036613&representation=PDF. Before abortion was recently legalized in Chile, Chile had the lowest maternal mortality ratio in Latin America.

 

[10] Her assailant, identified in 2003 as Sean O’Brien, was convicted of unlawful carnal knowledge and sentenced to 14 years in prison in 1994. On appeal, his sentence was reduced to four years, of which he served three. In 2002, he was tried and convicted again of the 1999 sexual assault and false imprisonment of another 15-year-old girl, and was sentenced to 3.5 years.

 

[11]See, e.g., Kitty Holland, Savita Halappanavar’s father urges Yes vote in abortion referendum, The Irish Times, Apr. 11, 2018, https://www.irishtimes.com/news/social-affairs/savita-halappanavar-s-father-urges-yes-vote-in-abortion-referendum-1.3457368

 

[12] Forsythe, supra, n.9, 71 Wash & Lee. at 858 n.154.

 

[13] Americans United for Life, Unsafe: America’s Abortion Industry Endangers Women, Second Edition, 2018.

[14] Jon Henley, Irish Abortion Referendum: Yes Wins with 66.4% – As It Happened, The Guardian (May 26, 2018), available at https://www.theguardian.com/world/live/2018/may/26/irish-abortion-referendum-result-count-begins-live.

[15] Twitter, Penny Mordaunt MP, @PennyMordaunt, May 25, 2018, 7:06 p.m.

[16] See Harriet Sherwood, Abortion Referendum Likely to Put Pressure on Northern Ireland Politicians, The Guardian (May 26, 2018), available at https://www.theguardian.com/world/2018/may/26/abortion-referendum-likely-to-put-pressure-on-northern-ireland-politicians.

[17] See Henley, Irish Abortion Referendum.

[18] See Sherwood, Abortion Referendum.

[19] AUL has chronicled may of these health and safety violations in Unsafe, a 200-page report (supported by 250 pages of data) documenting that 227 abortion providers in 32 states were cited for more than 1,400 health and safety deficiencies between 2008 and 2016.

[20] Saint John Paul II, Evangelium Vitae, no. 95.

[21] Id. at 101.