An Irish tale of warning on American abortion

·5 min read


We are on the verge of the U.S. Supreme Court hearing a Mississippi case sure to decimate Roe v. Wade, while Texas's ban of nearly all abortion plays Russian Roulette with women's lives.

A tragic death in Ireland in 2012 lit a pyre of resistance that was pivotal in leading to legalized abortion. Similarly this month, news of the heartbreaking death of a pregnant woman in Poland brought activists pouring into the streets demanding legal abortion.

What happens when abortion is made illegal or unavailable is clear and a cautionary tale as the U.S. enters a post-Roe era.

Ireland offers a human-rights-infused way forward for abortion rights in the U.S. and indeed globally. After 35 years of a regime that banned all abortion, Ireland now provides safe, legal and funded services throughout the first trimester of pregnancy. American abortion activists rallying to "Save Roe" would do well to look across the pond for inspiration and examples of successful human-rights-based strategies.

I lived in Ireland when a complete ban on abortion was enshrined in the Irish Constitution. The law that I later challenged at the European Court of Human Rights, had been enacted decades earlier as a reaction to Roe v. Wade. This Irish twin to America's repeatedly-introduced Human Life Amendment gave a fertilized egg rights equal to those of a pregnant woman. Even lifesaving abortion was unavailable in Ireland.

As a result, more than 5,000 women journeyed abroad each year to access safe, legal services - known as the "Irish solution to an Irish problem." When the U.S. Supreme Court failed to stop Texas' abortion ban last month, neighboring states were deluged with patients forced to travel far for abortion services. An Oklahoman solution to a Texan problem.

Abortion travel is not simple and Texas is playing a deadly game with women's health. In 2012 Ireland experienced the heartbreaking death of a young woman, Savita Halappanavar, who had been denied treatment for the miscarriage of a wanted pregnancy. Her physicians would not terminate her pregnancy while they could still detect a fetal heartbeat. They postponed this simple medical procedure and Halappanavar died of sepsis. When abortion is criminalized, it stigmatizes and denigrates all pregnancy care. In the U.S. we already have inequitable access to health care and horrifyingly high maternal mortality rates, particularly for Black and Indigenous women. Further limiting abortion puts more lives at risk.

Texas' ban is an omen of how the Supreme Court will likely decimate federal protection of abortion rights and allow states to criminalize abortion. Let's not wait and see. The U.S. needs a new, affirmative human rights model that moves beyond shoring up Roe and expands access to a broad range of necessary reproductive health care.

In the U.S., women of color who launched the reproductive justice movement have embraced just such a human rights approach for decades. They know that the fundamental right to make childbearing decisions must include having the resources to give birth and raise a family in safety. Access to abortion is just one piece of what is needed. Similarly, winning back abortion rights in Ireland launched a wave of political support that just last month brought government support for free contraceptive access and is demanding paid leave for pregnancy loss.

The Irish abortion strategy combined human rights litigation, political activism and mass protests; a trinity of strategies that deserves U.S. attention.

First, litigation remains one important tactic for protecting reproductive freedom. Abortion rights have been defined by decades of lawsuits in the years since the Supreme Court in Planned Parenthood v. Casey preserved Roe's core yet allowed significant hurdles to accessing abortion.

Winning Supreme Court battles is important, but it is not the be-all and end-all of protecting our rights. Sometimes losing a case can spur Congress to take action - as we have seen with the House passing the Women's Health Protection Act in response to Texas' ban. Other times we can win in state-court lawsuits. After the Supreme Court and Congress had ignored how banning abortion funding disproportionately harms women of color, attorneys used state constitutional protections to argue that state Medicaid programs must fund abortion. Today more than a quarter of states provide some abortion funding as a result of a court order or legislative advocacy.

Next, we must recognize that supporting abortion rights can be a winning political issue if we make it one. The right has successfully used abortion as a wedge issue to rally its religious base. In exchange for turning a blind eye toward Trump's sins, evangelicals were rewarded with three anti-abortion Supreme Court justices. This is about politics, not religion. Abortion supporters must back politicians willing to prioritize reproductive freedom for all - in all elections at all levels.

Reproductive freedom is about controlling whether and when we have children. It's the ability to determine what is best for ourselves and our families, and not just a privilege for the wealthy or the lucky. Tired debates over religious beliefs or philosophical arguments over "when life begins" are red herrings that keep us stuck playing defense. Even in "Catholic Ireland," the mass movements stayed centered on gender equity and women's bodily integrity. We must do likewise here. By demanding our human rights through actions like the call to pass the Women's Health Protection Act, pre-purchasing abortion medications and insisting that businesses join us to boycott Texas and other states that cruelly ban abortion, we will win ground.

Ultimately our Constitution is in need of serious renovation. Our "founding fathers" did not draft it with gender or race equity in mind. We should work toward a gender equity amendment that would safeguard fundamental human rights, moving us beyond Roe's limited framing of abortion as a right to privacy. What are we waiting for? Let's start now.

Julie F. Kay is a human rights lawyer who argued against Ireland's ban on abortion before the European Court of Human Rights and is the author of "Controlling Women: What We Must Do Now to Save Reproductive Freedom."

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