Prohibition on Abortion
It is an offence prohibited by the Offences against the Person Act to procure an abortion. The Offence against the Person Act prohibits the unlawful administration or use by a pregnant woman or anyone else of poisons or other nauseous things or other instruments or means in order to cause an abortion. The offence is committed if the act concerned is undertaken with the intent to procure an abortion.
It is an offence to attempt to procure an abortion. This offence may be committed even if the woman concerned is not pregnant. The punishment for the offence is imprisonment up to life.
Section 59 of the Offence Against the Person Act prohibits the unlawful supply or procurement of any poison instrument or thing with the knowledge that it is intended to be used for an abortion. The maximum punishment is imprisonment for five years.
In the famous U.S. Federal Supreme Court case Roe V. Wade there was held to be a constitutional right to abortion in the first trimester thereby overriding US state laws to the contrary. This was based on the right to privacy.
Shortly afterwards, the famous McGee v Ireland case recognised a right to marital privacy in relation to access to artificial contraception. Concerns were raised by certain private lobby groups that the McGee case might be extended to include a constitutional right to abortion in certain circumstances. This was notwithstanding that the constitutional right to life of the unborn child had been recognised by the Supreme Court.
The lobby groups persuaded the government and opposition parties to hold a referendum designed primarily to enshrine the prohibition on abortion in the Constitution. The wording put forward by the Government was not accepted by the Oireachtas and wording was put forward, which had been proposed by the opposition with the support of some government deputies.
The Eighth Amendment
The article inserted in the Constitution read:
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 so far, is practicable by its laws to defend and vindicate that right.
See the section on constitutional law generally in relation to the subsequent interpretation of this provision in relation to information on abortion services and travel outside the state.
In X v the Attorney General case in 1992, the Supreme Court reversed the High Court lifting an injunction prohibiting a 14-year-old victim of statutory rape from travelling abroad for an abortion. Ultimately, the Supreme Court found that the girl’s threat of suicide represented a real and substantial risk to the life of the mother.
Scope of Offences
Any instrument may potentially fall within the legislation if it is used with the intent to induce an abortion. If a substance is used, it must be poisonous or noxious. Poison covers anything which is injurious to health and life upon administration. A recognised poison is such even if administered in small doses. A substance may be a poison in certain quantities.
A noxious thing would include something that is not a recognised poison but may be harmful in certain quantities. What is or is not noxious in the circumstances depends on what was administered both in terms of quality and quantity. Something may be capable of being noxious having regard to the full facts and circumstances.
The poison or noxious thing must be administered or caused to be taken. It need not be physically delivered by the accused. If some act or omission allowed the substance to be taken by the mother, this may constitute administration or causing it to be taken in the circumstances.
Procurement of an abortion means causing or bringing about an abortion in the context of section 58. In the context of section 59, it involves obtaining the necessary material to bring about an abortion. In this context, it must be shown that the defendant procured the instruments. It is not enough that he already owned them.
Both offences require that the defendant’s actions must be “unlawful”. Therefore, in some exceptional circumstances, an action that procures an abortion may be lawful.
Defences based on Mother’s Health
In R v Bourne (1938) in England, a surgeon carried out an abortion to safeguard the mental health of a girl who had been raped. The surgeon was acquitted on the basis that he had acted in good faith to save the life of the mother. The court was of the view that the danger to life could arise from danger to health.
If the doctor was of the opinion on reasonable grounds with adequate knowledge that the probable consequence of the pregnancy would be to make the woman physically or mental wreck, the jury was entitled to take the view that the doctor could have the honest belief that he was operating for the purpose of saving the mother’s life. The danger to life need not be imminent.
In X v Attorney General (1992) in Ireland, the Supreme Court held that the risk to the mother’s health arising from the threat to suicide would sufficiently justify a lawful abortion. The distinction between the danger to life and danger to health accepted in the Bourne case appeared to be rejected by the Supreme Court. It also rejected the view in the Bourne case that the mother’s right to life was more precious. However, the court did seem to have regard to the fact that the mother’s position in the family meant that more people were dependent on her and therefore an abortion might be permitted to save her life.
The result of the X case was that abortion would be permitted where there is a real and substantial risk to the life of the mother. It would appear if doctors or surgeons believe that the danger to health is such as to be a possible danger to life, abortion may be permissible.
It must be shown that the accused intended to induce an abortion. In the case of procuring equipment and utensils, et cetera, the relevant intention is that of the person who obtains them. It is irrelevant that the mother has no intention of having an abortion.