abortion

The problem with Clare Daly’s proposal on bodily integrity

 

I saw this on Twitter this morning:

 

Clare Daly TD proposal tweet 400x313

 

The proposal by Clare Daly TD is to insert the following into Article 40 of the Constitution, replacing the existing Article 40.3.3°:

The state acknowledges right of all citizens to personal autonomy and bodily integrity.

Presumably the intention here is to remove the restrictions around abortion in Ireland, which many have argued have led to abortion effectively being exported abroad, most especially to England.

This is the existing text of Article 40.3.3°, which was insterted following a referendum in 1983:

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.

One of the problems with Daly’s proposal is that it is exclusive, affecting only “citizens.”

This wording creates a category of individuals in the state whose right to personal autonomy and bodily integrity is recognised – citizens of Ireland – and a category of individuals whose right to personal autonomy and bodily integrity is not recognised – those who are not citizens of Ireland.

One obvious consequence of this approach is that a situation such as the case of Miss Y from earlier this year remains unaddressed.

Thus, a fundamental right that is made contingent on citizenship status is no right at all.

 

The “right to travel” has always been denied to asylum seeking women

 

Ever since my time working with refugees in Ireland (from 2007 until 2011), I have been troubled by the effective blanket bar on allowing asylum seekers to leave the State.

This emanates from Section 9(4) of the Refugee Act 1996 (as amended):

Leave to enter or remain in State.

Section 9(4) An applicant shall not—

(a) leave or attempt to leave the State without the consent of the Minister […]

Irish citizens are free to exit Ireland’s borders and, being citizens of a member state of the EU, have the freedom to travel to over 28 European countries without the need to apply for a visa application and a grant of permission from immigration officers to cross borders.

Most other people residing in Ireland with an officially recognised immigration status have the freedom to exit Ireland in a similar way. In practice these are generally citizens from countries outside of the EU. Whether from Canada or Cameroon, those seeking to travel within the EU, therefore, will need to apply for permission to enter another EU state.

Asylum seekers are in a class of their own. They must seek the permission of the Justice Minister of the day if they wish to leave the territory of the state. (They must also, if the consent of the Minister has been obtained, seek permission from the other state to enter.)

Asylum seekers in Ireland are seeking international protection from this state. While the rationale behind requiring such a person to remain within this jurisdiction throughout the duration of their application is understandable, this blanket rule is inherently problematic.

During the almost five years of my work with refugees I encountered significant numbers of women who claimed to have been subjected to various forms of violence and torture, including sexual violence. Some were subjected to trafficking for the purposes of sexual exploitation. Some came from conflict zones, where the systematic use of sexual violence is used as a weapon of war. Some had become pregnant as a result of rape. Some had been subjected to intimate partner violence before or after arriving in Ireland. Some were children under the age of 18, including separated children in the care of the HSE.

None of them could exercise their right to travel, if they so wished and had the resources to do so, without the consent of the Minister for Justice.

This remains the case today.