Episode 5: ...Legislate!

Maeve: It is quite difficult to go back to the PLDPA..  quite difficult to go back to women having to travel, you know, and that sort of situation just.. it's hard to revisit how awful it is. 

Interviewer Tara: yeah.. To spend that time? Yeah absolutely. 

*Intro music plays for in the background and fades away over the next 30 seconds* 

Narrator Aisling [00:00:14] Welcome back to How the Yes Was Won, a podcast about the Eighth Amendment. Last episode we covered the X case and how it showed the unquestionable cruelty of the Eighth Amendment and started to change people's hearts and minds. People voted to allow abortion in case of threat to life of the mother, including risk of suicide. But this hadn't been legislated for. The anti-choicers had tried to exclude the risk of suicide in another referendum in 2002, but lost narrowly again. This meant that Ireland had voted to not further restrict abortion access twice since 1983. But how were the pro-choice side capitalising on that? Here's Niall Behan from the Irish Family Planning Association to answer that question. 

Niall: After the 2002 referendum, there was a real kind of chilling effect in political circles, and both the anti-choice groups and the campaigning groups and the political system had really come to a stalemate.

There was a real feeling that the anti-choice organisations could not make any more progress. They had been defeated in every referendum since 1983. They'd also been defeated in the divorce referendums. And the other kind of the you know, the conservative forces were really on the back foot. At the same time, the pro-choice organisations, small organisations really didn't feel that they could make any any progress, at all. And they, they disappeared after 2002. There was very few people left. They had fought the good fight to stop things getting worse. 

In 2003, a small group of people came together and decided that they made a real I think the critical decision, and the critical decision was that they were actually going to go on the offensive around abortion. Everything up to then had been to stop things getting worse. If you think.. if you look at all those kind of the Anti-Amendment Campaign in 1983, the attempt to roll back on the X case in the other in the other referendums, and what they did, what the people did, what this very small group of people like, no more than 10 people. They did, a kind of, they did a deep dive on abortion campaigning in in Ireland. And they really went into the detail of what kind of what works, what doesn't work, where do we need to go with this. 

So you had people like Catherine Heaney looking at the communications elements of abortion, campaigning and really kind of looking at the detail. And you know she came up with a strategy that was around kind of what didn't work with the with the public and what did. So this idea of really trying to shed light on the issue rather than heat. So a lot of debates were always generating lots of heat, lots of storms - that really suited the anti-choice organisations. What we need to do is we need to find forums and places where we can actually shed light on the thing - places in the media, the places in the human rights bodies, places where abortion could be talked through, and talked to the reasons for abortion, the women's stories could be talked through. So what we decided to do was that we wouldn't go and have these kind of head-to-heads with anti-choice organisations, that we would start talking to people who weren't kind of ingrained in their thinking. 

What back that up is, we could start to see from opinion polls. There were more and more pro-choice people and there were younger and that was this shift in public opinion. So what we're trying to do is we're trying to get this engagement. We felt that if we could get that engagement. At the same time, we kind of looked at what would move people, what would unfreeze this kind of stalemate, what would actually kind of work. And we decided that this, we went back to the McGee case, we went back to how things were moved on before. And we looked at the human rights approaches. We looked at that, you know, the one thing that's strangely the one thing across all political parties, what we found is they all want to be human rights compliant. Generally, they all have this respect for human rights bodies that you don't find in other countries, OK? And it goes right back. And so we could have looked at that. We said, OK, we we're going to use that. That gives us the forum to talk these things through. It brings the international pressure in and it allows us to have have have a discussion. 

The other elements of this this campaign, we looked at what kind of how did we get to this Eighth Amendment? How does the 8th amendment end up in our Constitution? We were right back to that. And what we found was that when this was first advocated, it was kind of seen as kind of extreme. When the Eighth Amendment was first.. it was extreme kind of religious people who didn't really have much weight within political circles. What really gave them the momentum was when the doctors became involved. So if you look at where the Institute of Obstetricians and Gynaecologists were in 1983, they were the key voices. They were the ones that gave the politicians the space to actually make these proposals around the Eighth Amendment. We knew that we had to get doctors voices. Now doctors voices were.. were always involved in the campaign, but not to the extent that was required to really have that big shift. So you had a few kind of individual doctors at Michael Solomens, Mary Favier. But what we needed was we need a mainstream kind of, mainstream doctors involved. 

One of the things that happened when the women on waves boat came in, Doctors for Choices, was formally proposed by Julie Kay, who was who was working with the Irish Family Planning Association at the time. So Doctors for Choice was was formed out of that. And we provide the secretariat here for a number of years to to Doctors for Choice. But we knew that Doctors for Choice.. at some point, we knew that Doctors for Choice was limited in what it could actually do. And we needed to get into the kind of the Institute of Obstetricians and Gynaecologists. We need to get into the Irish College of General Practitioners. We needed to go mainstream. And that's the type of work that we were doing for years, kind of working around, looking at those. 

The other things we recognised is that we needed to have a civil society on board. We needed to have the NGOs and the key NGOs on board, and we needed to have volunteers and campaigners and street campaigners and people that would put up stalls and all that sort of thing. So I'm talking about 2003, 2004 here. You have to remember, the National Women's Council didn't have a progressive policy on abortion. Amnesty International hadn't got involved in the issue at all. There were very few groups actually involved in the campaign. 

We were in this stalemate situation. Right. And what we need to do is we need to unfreeze the political system before you go anywhere near public opinion or referendum. We needed to engage the political system. And we decided the best way to do that at that point was to take that really take the State to task. 

Narrator Aisling [00:07:09] What the IFPA and others realised was, that the government was susceptible to pressure from the UN and the Council of Europe, especially relating to any possible human rights infringements. The IFPA therefore decided to take three cases from three real women who were denied care in Ireland under the Eighth Amendment. The women were given the monikers - Miss A, Miss B and Miss C in order to preserve their anonymity, much like Miss X from the previous episode. You'll hear a lot of references to women named after letters as this story continues. But it's important to remember that there's a real life and humanity behind each letter. We're focusing on the A,B & C cases today, but there are many others in this time frame. 

For example, another Miss C in 1997, who was a 13 year old girl, there was Miss D in 2007 whose baby was diagnosed with a fatal foetal abnormality. And these are just the ones we know about. We'll be linking to some of these stories in the show notes and encourage you to read about them. 

But for now, we spoke with Maeve Taylor, the IFPA's Director of Advocacy and Communication, about the cases in 2010 that pushed international focus onto Irish politicians to address abortion access. 

Maeve: The Irish government has always taken the European Court of Human Rights very seriously, partly because the Government itself has taken cases. And that's one of the reasons why that was the critical body, that the government wasn't just going to say were this or that “So they said that in Strasbourg”, they take it very seriously. So the IFPA felt that, you know, it was clear something had to come from somewhere else, to kind of kick start at least a conversation again.  So that, the IFPA decided that human rights advocacy so would be a way to bring external pressure on the Government. So to use human rights forums at the United Nations forums, the Council of Europe human rights forums, and to try and use these to use that, the condemnation by these bodies on the State to kind of re-open the discussion on abortion at domestic level. So that's why the IFPA supported these three women to take a case to the European Court of Human Rights. 

And the three women each had very different circumstances. So A was living in very, very difficult socioeconomic circumstances, very, very difficult life, and just could not countenance the idea of having.. She had children. She couldn't have another child in those circumstances. She was unable to have an abortion in Ireland. B, I think it was the wrong time in her life to, you know, to be pregnant. And she wasn't able to have an abortion. And then C had been diagnosed with the form of cancer where a pregnancy would increase the risk to her life, would cause a risk to her life. So she had a legal entitlement to an abortion in Ireland, but had not been able to find any doctor who would say, yes, you have this entitlement. Here's what we're going to do. So she hdn't been able to assert the right. The three cases, if the European Court of Human Rights had decided in favour of the women on each three, then the government, the state would have been obliged to change the law and to change the constitution. Now, obviously, the state can't change the constitution without a referendum, but it would have provoked a referendum then in 2010. 

So the court decided, made a very strong ruling that C had an entitlement under law and her rights have been violated because she hadn't been able to give effect to her rights. In the case of A and B, what the court held was the European Court has this really unusual human rights doctrine, which is called the margin of appreciation, which I think is a translation from the French, because it doesn't on its own terms make any sense to me. But it's called the margin of appreciation. And what that means is that on some issues, not on all issues, but on the, in the area of privacy, which is the area that the case that they decided the case on, that in the area of privacy, that the state has kind of leeway to decide its own way of dealing with what's considered to be a sensitive moral issue. So the Irish State made this very strong case that abortion was this deeply sensitive moral issue. And the court held, OK, there's been an interference with the rights of these two women. They've been forced to travel to another state in very difficult circumstances. This has had a significant psychological, financial, emotional, physical burden on these women. There's a definite interference with their right to privacy, the right to make this decision on their own terms, but didn't go as far as saying that their rights were violated. But in their ruling, that was a majority of the court. The minority of the court, I think, was like six versus 14. The minority of the court said “no, absolutely, they should have had a right under Irish law”. So what the the majority said was look, look at, you know, that Ireland was going was not with the European consensus on abortion that the other Council of Europe. So it's not the European Union, it's the Council of Europe. So it's a much wider grouping of European countries that the prevailing norms in Europe were in favour of having access to abortion on much wider grounds than in Ireland. So the court said, “well look at your European counterparts, look at their laws, explore these issues, have a national dialogue”. 

The ruling was a landmark, in the sense it was telling the state it had to do something about its abortion law in order to protect women's health. And this is really important. This was a decision about women's health. The three women who took the case all had significant health issues, because of the burden, you know, the burden of having to travel, you know, which was they had, I'm trying to think what the court's exact language was, that they had incurred significant economic, psychological and financial burdens. And so the court said, you know “you should look at the situation of A and B but you need to do something about the case of C” that under that they use this... The language that they use is that “rights under the European Convention on Human Rights are not theoretical and illusory. They have to be practicable” in other words they have to be put into effect. You have to be able to exercise the right. If the law says that you have a right to abortion in circumstances when your life's at risk, you have to have a mechanism, a procedure so you can establish if your life is at risk and then that you can go on to have treatment. The ruling was to implement the right that already exists in the law. The ruling was not, unfortunately, to change the law. 

So in a way that shouldn't have had a big impact. But it really, really did, because it made a situation visible that the state had always wanted to kind of keep under wraps. The state was very content to let women travel to the UK and the state policy really was make it as easy as possible for women to travel to the UK or elsewhere to have an abortion and make it as hard as possible for women to have abortions here in Ireland. So what the government did initially was, as it tended to do, was to announce' we'll create will bring together an expert group'. And we... we actually, I remember did an opinion piece to the Irish Times. And our point was that, you know, there's absolutely no need to form an expert group. All the knowledge was there. All they had to do was bring in a piece of legislation. This was a delaying tactic. This was a stalling tactic. And this showed a considered disregard for the rights of women under the European Convention on Human Rights. And I think we were correct in terms of the state's intent. You know, the the intention was expert group report up on the shelf, gather dust, because that was the previous pattern. And yet what happened was quite different from that, because the expert group took its job really seriously as a group of health experts. So all of the previous parliamentary processes had got bogged down in ideology. And this expert group looked at women's health and they looked at well, so if a woman, if the risk to life is because of threat of suicide, well, how do we deal with that? Well, threat of suicide is something that the psychiatric profession deals with and has mechanisms and protocols. This is not an impossible thing. So, yes, this can be dealt with. So, yes, we have expertise in maternal health. So, you know, they just went through logically, if this is the need and this is the, you know, the right. This is what has to happen. And really critically, what they said was, there's really no way to make the right. which is still only the right under the X case, to have an abortion in case of risk to life, but there's no way to make that right, practicable and realistic without legislation. So that brought it back into parliament. And so that was in. So the ruling was in 2010. The expert group convened in 2011. It gave its ruling in 2012. 

Narrator Aisling [00:15:59] There was increasing national and international attention on the lack of action by the Irish government to do something to provide abortion care at home and legislate for X. The A, B and C cases and subsequent expert group had put the subject of abortion back into the Irish papers and people were talking about it. 2012 marked 20 years since the X case Supreme Court ruling that a pregnant person had the right to an abortion if there was a risk to life. But as Maeve told us, there was no legislation for it yet. 

Meanwhile, a new generation of pro-choice activists were starting to mobilise. Young women who had grown up under the Eighth Amendment were reading and hearing about these cases, being forced to travel for their own health care and getting angry. The anti-choice side also saw this increase in conversation as the threat that it was and began to preemptively fight back. Alison Spillane, Policy and Research officer with the Irish Family Planning Association, told us about being involved in the pro-choice movement at this time and how civil society was reacting to anti-abortion activity on the streets

Alison: One of the first things I was involved with was a rally for choice, which would have been summer 2011. And this is again, when I was still trying to figure out what to do with this kind of anger I had around this. And it was a counter rally to the annual like anti-abortion march, basically. And I suppose that was the driving thing, was that we just can't we can't let this go unanswered on the streets of Dublin, you know, like that this isn't the dominant view and stuff like that. And I just remember and like, yeah, I think there's diverse opinions on it and stuff like that. And I remember participating in that and just feeling like this is this is a tough.. because you're all right up against each other. Like it's very hostile, it's very confrontational. And, you know, and I still agree, like I know there was subsequent counter-rallies and so on that I attended and stuff. And I do agree with the idea that, you know, you can't let this this go unanswered. But I think for me, I was of like, OK, I need to channel my energies into different spaces in terms of trying to move this on. 

Action on X? I think people started coming together around the end of 2011, I think. And it was kind of people from different groups, people from the likes of Choice Ireland, which obviously have been there going back a while, people actually Sinead Kennedy and Sinead Ahern and and just kind of people getting together thinking, OK, how can we mark this? And the focus was on, like, the urgency, the need to legislate for X. And this was also related to that European Court human rights case. There needs to be some implementation like. So we held I remember holding.. holding a public meeting in the Gresham like February 2012. And yeah, it was it's just a whole different world compared to where we are now like. I remember it was like we were really expecting like these huge protests. And this is because definitely when I got involved initially in like abortion rights activism, I remember my parents being like, “oh. Careful, careful now!”  They're like they're really like they remembered like. So, yeah, we were expecting fully this hoard of anti-abortion activists. And no, in the end it was like two men and a dog. They did like they did protest and they just had this like their little signs outside the Gresham, but I think was like lashing rain. So in the end, somebody invited them into the meeting because they were getting drenched. And I think they came in and obviously they were kind of like, well, maybe we should disrupt this meeting. But everyone was like quite polite to them. And we're like “oh, you want to hang up your coat? You're kind of drenched” So they ended up like just sitting very quietly at the back of the room and like not intervening in like a broader public meeting with like, you know, it was like Anthea McTiernan was speaking and Mick Wallace spoke and Vincent Brown and stuff. And that was like, did we have 200 people like that? It was, you know, we'd fill.. it was like the ground for the Gresham. And that made me think, OK, there's you know, there's a bit of interest in that. 

And so, yeah, trying to get the public conversations going from 2012 onwards, I was kind of like, OK, there's something here that it's like I think it's working, you know, I think bringing all these people together, having, making a kind of participatory rather than just like lectures. People care about this and they're looking for outlets. So how can we kind of mobilise that? And I think a lot of other there was pro-choice activism happening in like little pockets all over the place, you know, so like action on X was one bit of it and there was Choice Ireland. And there was like groups in like regional areas and stuff like that. And then it was kind of that summer then of 2012, this kind of idea of like an Irish choice network came about and people like Aoife Dermody would have been really instrumental in that. And I think it was just kind of trying to set up this way for all these pro-choice groups to interact and to kind of harness some of this energy and coordinate a bit better.

Narrator Aisling [00:20:22] While this was going on, Youth Defence, the militant anti-abortion group founded in the 80s, had never gone away. They had never left the scene, constantly and aggressively pushing their conservative stance on all social issues - abortion, contraception, divorce. It didn't matter. 

In June 2012, Youth Defence, put up massive graphic anti-abortion posters around the country. These posters variously depicted sad women with captions like “Abortion tears her life apart” or an in utero foetus sucking its thumb with the same caption. We spoke with Cathie Shiels of the abortion rights campaign about these Youth Defence posters and how pro-choice people responded 

Cathie: Youth Defence put up the.. their billboard campaign. So that was like in 2012. And I lived in Maynooth and I commuted into Dublin. And so at every stop along the way, there's this big billboard and it says “Abortion tears her life apart. There's always another answer” And I would just like get in to work and be like this wee, angry ball. Just be like “How dare they? You can't even have an abortion in Ireland. Why are they putting these posters up at all unless it's to shame women?” But I realised subsequently that it was because Claire Daly was doing some work around abortion. And so they obviously saw that there might be another move to liberalise the law. And so they put up these posters probably at the cost of about 100k - They were in Letterkenny, Galway, Cork, Dublin, they were all over the place. And so it just felt really oppressive walking around Dublin, seeing all these anti-abortion posters when, as I mentioned, you couldn't have one if your life depended on it, literally. So it just.. it really frustrated me. And I went to college with a woman called Sinead Redmond, and we talked to each other very animatedly on the phone about how annoyed we were. Many expletives were used. And so she ended up setting up this, this Facebook page that was called “Unlike Youth Defence, I trust women to decide for themselves” - We've become better at naming things since then. So it just sort of became known as “Unlike Youth Defence”. 

And and so within a week, I think the page had about a thousand followers and we organised a protest, a demo outside the Dáil that about 400 people came to. And in advance of that, we organised to poster making sessions in one of them within what is now Jigsaw and RAG, the revolutionary Anarcha-feminist group, had organised a meeting of their own in the same place at the same time. So it was.. what felt like very good luck to sort of happened on that meeting of pro-choice individuals and activists who'd been involved with the likes of Choice Ireland,  Rally for Choice or Action on X. And so that kind of that kind of spurred me to, to get more involved beyond this initial reactionary Facebook page and demo 

Narrator Aisling [00:23:14] Out of this movement and the Facebook group, came the Abortion Rights Campaign or ARC for short, established in late 2012. ARC’s initial aims were to work on stigma reduction, education and just making the issue of abortion visible. 

Cathie: Like we all know that abortion is normal. We just might be a bit afraid to talk about it out loud. And it's just, I suppose, trying to take strength from other people in other countries to know that it's a part of reproductive health care, abortion. It's in there with, you know, with with miscarriage, with birth. It's just a fact of life that, you know, sometimes women have abortions. And so trying to like, governments or the patriarchy, trying to tell us that it's not normal or that that we're wrong or flawed or there's some great sin and it is just, you know, wrong. 

** Outro music plays in the background until end*

Narrator Aisling [00:24:06] So spurred on by the intense poster campaign from Youth Defence, ARC organised the first March for Choice in Dublin for the 29th of September 2012, with an estimated attendance of 2,500 people. 

Just one month later, a 31 year old woman named Savita Halappanavar died in a Galway hospital, because she was denied an abortion. This would change the conversation around abortion in Ireland forever. And was the catalyst for all the change to come. That's the next episode. 

Credits Tara[00:24:35] Many thanks to Niall Behan, Maeve Taylor, Alison Spillane and Cathie Shiels for speaking to us for this episode. 

Special thanks to the IFPA for hosting us there for our interviews with Niall and Alison.

If you liked this podcast, we’d love if you shared it with your friends. Subscribe to us wherever you get your podcasts, and follow us on the socials @ HowTheYesWasWon for updates on next episodes and we’ll be featuring some content associated with each episode. 

If you are based in Ireland, we encourage you to reach out to your TD’s in relation to the upcoming review on legislation.

For those outside of Ireland, you can consider donating to the Abortion Support Network.

There’s a link in the show notes where you can donate to support their clients, or go to ASN.org.uk.

How The Yes Was Won was researched, produced and edited by Aisling Dolan, Emma Callaghan, Davy Quinlivan, Tara Lonij, and Deirdre Kelly. Additional recording support from Fin Dwyer. See you next time.