By Máiréad Enright (Kent Law School, University of Kent)
In Ireland, Brexit was a feminist issue. Women living in Ireland depend on having reliable access to abortion care services in other EU countries. Abortion is criminalised in Ireland except where necessary to save the life of the mother. In all other cases, women either take the risk of inducing abortion illegally using pills, or travel abroad. Some women who require life-saving abortions, particularly suicidal women, may also prefer to travel rather than subject themselves to the onerous, uncertain and invasive tests for eligibility for early termination of pregnancy under the Protection of Life During Pregnancy Act 2013. Women’s right to travel is constitutionally protected under the Thirteenth Amendment but many women’s journeys are burdened by poverty, ill-health immigration status and stigma. As the Brexit debate unfolded, Britain forgot these women. Uncertainty about freedom of movement after Brexit has now generated fears around future abortion access.
Travel for abortion is not easy, whatever the immigration restrictions. Certainly, wealthier women in stable employment who are part of supportive friendship and family networks may be able to mitigate some of the burdens of travel for healthcare, but they will still often experience the bodily discomfort and mental distress associated with having a stigmatised medical procedure in an unfamiliar environment far from home. The regulation of abortion information in Ireland means that women find it difficult to plan their abortions, and healthcare providers are forbidden to assist them to make arrangements. Poor women (the gendered effects of austerity have swelled their ranks) or young women find it difficult to meet the combined costs of travel arrangements and the abortion procedure itself.
The case of Irish abortion travel re-attunes us to some of the complex and fragile interactions of EU citizenship and private life which were often forgotten in the Brexit debate. Pro-Brexit arguments were framed in heavily masculinist territorial or neoliberal economic terms, with a focus on sovereignty and trade. When the necessary lived connections between Member States were considered, the focus was on long-term economic engagement – on freedom to work (of which the maintenance of family life and the right to welfare were unwelcome side effects). The question of access to essential medical services was largely ignored. In Ireland, this access has been facilitated by a particular network of travel arrangements. The Common Travel Area (CTA) between Ireland and Britain, which pre-dates the countries’ EU membership, means that there are no passport or immigration controls for Irish citizens travelling to the UK (though in practice many airlines require passports or some other form of photographic identification). Non-Irish EU citizens seeking abortions do not rely on the CTA because they exercise their fundamental freedom under Art 56 TFEU to receive services overseas. Third country nationals – already marginalised by the EU immigration system – may need entry visa and re-entry visas, other travel documents and passports to travel to Britain. The governing UK law is the Immigration Act 1971.The requirements of UK law already present particular logistical and financial difficulties for women living in the asylum ‘direct provision’ system, who are deliberately kept in poverty and isolation by the state.
Post-Brexit, many women living in Ireland would find themselves leaving the EU to have abortions. The concern is (i) EU citizens travelling to the UK may no longer benefit from the special privileges they currently enjoy (ii) the special position of Irish citizens under the CTA will not be maintained and (iii) while the rights of third country nationals should remain unchanged, new border arrangements might subject them to additional policing. The CTA is largely informal in origin, and might be renegotiated as part of post-Brexit arrangements. Prior to the referendum, a number of scholars doubted that Ireland and Britain would agree a hard border with stricter immigration regulations. Imelda Maher argued that a ‘mini-Schengen area’ would be an appropriate solution. Others, such as Bernard Ryan, have argued that the UK is likely to permit visa-free travel for EU citizens, and to exempt Irish citizens or residents from any additional travel requirements. However, Colin Murray, Aoife O’Donoghue and their colleagues emphasise that the border between Ireland and Britain will become an external EU border, and as such, some additional passport or customs requirements are likely to be imposed by the EU itself, which will affect travellers entering Ireland. As yet, neither government has clarified how travel between the UK and Ireland might be affected by Brexit. The spectre of significant new border controls as a result of Brexit has emerged in the information vacuum. We can only speculate on possible effects on abortion access:
(a) Existing travel difficulties would be exacerbated. As Mara Clarke of the Abortion Support Network has explained, applications for passports or visas impose additional costs on women which may delay travel. Some women will be unable to arrange travel for an abortion, whether quickly enough or at all. This will mean that some are forced to continue unwanted or unsustainable pregnancies: the IFPA has already reported that some women in direct provision have been unable to end pregnancies because of travel restrictions, and it may be that post-Brexit other women would find themselves in an effectively equivalent position. Others will be able to travel but later, and may experience attendant difficulties. For example, they may find that delayed travel means that they require a more expensive or involved abortion procedure once they arrive in the UK, or that their pregnancy comes perilously close to, or overruns the cut-off period for a legal abortion under UK law. Northern Irish abortion law is almost equally punitive, and so Irish women will not generally expect to access an abortion in the North. However, is not unheard of for third country nationals who cannot access visas to attempt clandestine entry to the mainland UK via Northern Ireland, where they are sometimes turned back. A stricter border between the countries would make women taking this route even more vulnerable.
(b) More women who might have preferred to travel would use pills to terminate their own pregnancies. This is generally safe, but remains illegal. Many women find the process of inducing their own abortion without direct medical support stressful and frightening, and some women who use the pills as a last resort alternative to travel may find that their pregnancy is too far advanced to use pills easily. The burden of supporting these women will fall on friends and family and on activist services such as Women on Web and Women Help Women. Women typically order pills online, having them delivered to the North to avoid seizure on arrival in the Republic. These women then travel to collect their pills, bringing them back to the Republic in their personal effects. Tighter customs practices at the North/South border might also jeopardise this strategy (though, historically, the porosity of the border, even during the Troubles, has meant that organised and personal smuggling of reproductive health objects could continue unhindered).
(c) Some women who could do so might access services elsewhere in the EU rather than in Britain; the Netherlands is already an important destination.
Does the perception that Brexit may jeopardise abortion travel create leverage for pro-choice activism in Ireland? Activists campaigning for reform of Irish abortion law already emphasise the difficulties of an abortion regime dependent on travel. Their arguments will now be shaped by Brexit. In particular, they must argue that restrictions on travel arrangements exacerbate continuing violations of human rights associated with the travel regime. Only the dissenting minority in the European Court of Human Rights in A, B and C v. Ireland argued that the travel requirement was a violation of women’s right to privacy. However, international treaty bodies have repeatedly condemned Irish law for its failure to vindicate women’s rights. In its recent decision in Mellet, the UN Human Rights Committee found that the requirement to travel for abortion violates the right of grieving pregnant women whose foetuses have been diagnosed with fatal abnormalities to freedom from inhuman and degrading treatment, as well as their rights to privacy and freedom from discrimination. Women’s human rights are also at issue where the foetus is healthy and the pregnancy less advanced. Both UNCAT and the UNHRC have stated that the travel regime is not adequate to vindicate women’s reproductive rights, noting in particular that it discriminates against women who are unable to travel for financial or other reasons. Further burdening travel exacerbates these violations. However, the Irish state has so far been unmoved by these human rights arguments. The constitutional right to travel for abortion is a negative right – the state does not interfere with travel. As the Irish Family Planning Association has noted, the Health Services Executive has, on occasion, assisted minors in the care of the state to travel for abortions, and the government has recently pledged to improve services for women affected by fatal foetal abnormality. However, it has extended no such assistance to women asylum seekers, whose movements it also controls, and it has taken no steps to reduce the general socio-economic burdens of travel. While it is generally accepted that the near-absolute constitutional ban on abortion is likely be repealed in the lifetime of this government, no mainstream political party is arguing that the state should permit abortion on socio-economic grounds. Travel is likely to remain a feature of the Irish abortion regime for some time to come. Until Ireland’s abortion law changes, the continued, if imperfect, availability of abortion services in Britain is an important safety net for many women living in Ireland. (We might wonder, with a certain irony, whether a government so slow to legislate for abortion will openly discuss the travel needs of abortion-seeking women in the differently-charged space of future border negotiations.)
The example of Irish abortion travel reminds us that women’s needs often fall in the cracks between states’ sovereign projects. It is often observed that the Irish state maintains an ‘abortion free’ national image by exporting unwanted pregnancies to Britain. Britain’s ambivalent tolerance of the enforced travel regime allowed some women to end their pregnancies. Women made an escape route in the available space. In the late 1980’s and early 1990’s, agents of the State, having enshrined the prohibition on access to abortion in the Constitution, facilitated pro-life activists to radically undermine this fragile, inadequate, makeshift escape route. Censorship of the information necessary to obtain abortions abroad, and the threat of arrest and conviction for attempting to travel were real prospects for Irish women. As Sandra McAvoy has written, EU membership provided women with some resources to defend themselves. Women’s rights activists defied Irish Supreme Court abortion jurisprudence by pursuing European litigation in SPUC v. Grogan and campaigned strategically around the Maastricht Treaty referendum. These strategies were part of the process of winning a negative constitutional right to travel, and a limited constitutional and statutory right to information, and the inadequate compromise of the travel regime was preserved. Despite pro-life assertions to the contrary, abortion has not been imposed on Ireland from outside by any EU body. Instead, women used various tactics of self-reliance and solidarity to make a tacit compromise between states and EU power barely liveable. Now, with Brexit, women once again are let down by a state’s isolationist exceptionalist sovereign project – but the roles of aggressive and indifferent state are reversed. The threat to women’s survival appears now, not at the level of formal law, but at the level of the day-to-day liveability of the travel regime. When liberal post-Brexit discourse dwells on the personal dimensions of EU membership, it frequently presumes an elite, cosmopolitan subject who has the resources to restore to herself whatever rights the state may carelessly discard. (Witness the media coverage of British citizens’ efforts to obtain Irish or other EU passports in order to safeguard work and educational opportunities.) The example of Irish abortion travel reminds us that emergency travel, hard-won last resort travel, has been as important an aspect of free movement as the hyper-mobility of labour assumed by governing elites. Women’s struggles at Brexit’s boundaries matter, and deserve further attention.
‘Brexit: Democracy, Markets and the Regions’, DELI/LGJD Joint Insta-Symposium