So in the wake of the Savita Halappanavar tragedy, the Irish government rushes through legislation which… Would have done nothing to avert the Savita Halappanavar tragedy. We are left to explain this to a mystified world.
What they’ve done is take advantage of the mood to enact law that has been missing for two decades. In the X Case the Supreme Court found that the Eighth Amendment to the Constitution, introduced by anti-abortion campaigners to create a right to life for the unborn equal to the life of the pregnant woman, had the weird but logical consequence, where a pregnancy threatened both, of requiring abortion to be legal.
No government however had the political guts to enact this – until now. In the meantime we were left in an untenable limbo where not only was the law in conflict with the Constitution, but it was unclear whether or not one could save a woman’s life without going to prison. Medical professionals probably did intervene in ways that resulted in the death of foetuses, but had to do so almost clandestinely, studiously avoiding words like “abortion” or “termination”. We don’t know if this fear, uncertainty and doubt contributed to Savita’s death. (We may after the malpractice suit.) We do know though that the new law still does not allow the termination of a non-viable pregnancy like hers, an operation which she requested and which would have saved her life. The life of a foetus – even one that cannot survive – is still legally equal to hers.
So if the general thrust of this legislation was simply to clarify what the Supreme Court’s judgement had already made legal reality, why was there so much concerted opposition? There are a few reasons, the most prominent being that the danger of suicide was considered by the court to be a threat to life. Anti-abortion campaigners see in this a trojan horse. Soon women would be claiming to be suicidal to get an abortion when they weren’t really suicidal at all, merely desperate enough to pretend to be.
Yes it is all a bit strange.
But when it comes down to it, the main reason is of course belief. The Eighth Amendment was thirty years ago. In these slightly more sophisticated times, few admit to being motivated purely by religion. Dana, speaking on Tonight with Vincent Brown, weirdly attempted to justify her anti-abortion views with science. An embryo is a person because “All the DNA is there” – as if a plan is the same thing as the finished building.
Having a preconceived belief and misrepresenting the facts to fit it is of course the precise opposite of science. Complete opposition to abortion requires a supernatural mindset. You have to maintain that from the very beginning, the developing foetus has rights separate from and (at least) equal to those of the woman it is developing within – a difficult position to hold unless you subscribe to the idea that humanity arrives complete at the moment of conception by some miraculous process.
Which, as it should happen, is what Catholics and some other conservative Christian groups teach.
People are entitled to their beliefs of course. A huge proportion of Irish women could but do not avail of abortion services overseas, precisely because they have this outlook. Beliefs become a problem though when you try to make other people live by yours. You don’t have that right, even if you are a minister or TD. Especially if you are a minister or TD. All that can ever be enforced is what a society, by overwhelming consensus, accepts as necessary. And our law on this issue no longer reflects any such consensus. Perhaps a majority still believe that human life begins at conception, but few even of those are so dogmatic as to insist that this early life is equal in importance and humanity to that of the woman it abides within. Experience has shown this to be not a reasonable precept but a dangerous religious dogma foisted upon us by extremists.
The government did do right, but it did the least possible right. No one was ever really in favour of the Protection Of Life During Pregnancy Bill, few are celebrating its passage. It’s just a workaround, a patch for the contradictions that will ensue from enshrining the equality of women and embryos in a Constitution. There will be more horrific situations, there will be more bad and unworkable law that no one really wants, until the day comes when we finally have the courage to repeal the Eighth Amendment.
- Ireland passes controversial abortion law (aljazeera.com)
- Ireland passes law allowing limited rights to abortion (guardian.co.uk)
- Irish minister may be fired over anti-abortion vote in parliament (irishcentral.com)
- TD Forced Out of Fine Gael By Anti Choice Regime! (politics.ie)
(Apologies to mailing list subscribers who were accidentally sent a much earlier draft of this post.)
7 replies on “Belief In The System”
Cogent and well-argued post – a pleasure to read. Good work, Richard 🙂
Ah christ, I sound like a teacher in that comment. I meant general YAYness for your argument after incoherent irrational extremism we’ve been putting up with lately.
Thanks Miss… er, Susan. 🙂
My fear is that things will return now to the hypocrisy we call normality. Until someone pregnant kills herself because they were found by a committee to not be sufficiently suicidal.
Is that how it will work in practice? A woman will need to appear before a committee to determine if her abortion is necessary and complies with the new law? I know Canada tried that approach after we were begrudgingly forced to allow some form of abortion, and the result was R. v. Mogrentaler in 1988. Then again, Canada had the good sense to make our Constitution ridiculously difficult to amend (and we still haven’t figured that one out), so ours doesn’t have any anti-abortion clauses written into the damn thing.
(Also: passing legislation 9 months after Savita Halappanavar’s death- which is a bit of a tragically ironic timeframe- is “rushing”? I mean, I know governments are notoriously slow at getting shit done, but they still manage to pull off a budget every year without needing to legislate for a longer year so they’ve got enough time.)
(After twenty-one years of inaction, nine months seems like breakneck speed… It was as fast as could really be imagined, considering the legal complexity and political difficulty. In the end there were only a few defections from the government parties – most notably the minister above – but considering that neither side of the debate was really happy with the bill it could easily have unravelled completely.)
She won’t have to appear before a committee, no. But in cases where a woman claims to be in danger of suicide her case will be judged by a panel of one obstetrician and two psychiatrists. Presumably the psychiatrists at least will have to question her. All have to agree that the danger is real. If they don’t the woman can appeal to a second similar panel, though only once.
The similarities and contrasts with Canada are interesting. It’s the only Western country I know of to decriminalize abortion in all circumstances. The sky doesn’t seem to have fallen. Funny how, like us, you had an unworkable law on the books for two decades.
It’s much simpler to not have any abortion law at all, really. I mean, technically it’s governed by the Canada Health Act, but no more than any other medical procedure. (Okay, so technically New Brunswick refuses to fund abortions, but that’s in violation of the CHA; the government just hasn’t yelled at them over it, and I doubt they will so long as the Conservatives are in power.)
The language of your Eighth Amendment opens itself up to challenges, too. I mean, I, for one, would not consider a person who is pregnant, yet who has not had other children, to be a “mother” (and were I to find myself pregnant in Ireland, I’d probably challenge that wording, unless the term “mother” is defined somewhere in Irish law so that it applies to pregnant people, other children notwithstanding). Furthermore, would the current law as written apply should a person who is male find himself pregnant (in other words, a transman who identifies as male [and he’d likely need to have had his official documents reflect his male gender if he was assigned female at birth] but still has female reproductive organs), as he would definitely not be a “mother” in this case; the term “father” may apply, but again, I don’t like to apply that term to someone who merely has a child on the way- especially if that person is trying to terminate said pregnancy.
And then, of course, your committee may run into a problem similar to the one mentioned in the Morgentaler decision, where the people on the committee may allow or disallow an abortion based on their personal opinions on the procedure, and not based on the patient’s risk of suicide.
Oh Lord it would simpler, yes…
I’ve remarked on this before, and I’m surprised that it’s not made more of. Calling a pregnant woman a mother, when the question is whether she can choose not to become a mother, is as clear an example of Begging The Question as you could ask for. They could use it in classes on logic or rhetoric.
She is not defined as such anywhere in law so far as I know, no. Nor is it common usage; “Expectant mother” is as close as it gets. In fact I think to most people, calling a pregnant woman a mother would seem like tempting fate.
You can’t directly challenge the Constitution in law though, and I imagine that the drafters of legislation will have avoided using such questionable terminology.
While it certainly looks as though anti-abortion language and mindset were deliberately smuggled into the Constitution here, it was actually the government of the day’s choice of words. The amendment as proposed by campaigners made no mention of the woman’s right to life at all, and they actually objected to her being placed on an equal footing.
As for the possibility you raise, of the health professionals refusing an abortion based on their personal opinions of the procedure – Yes, I think you’re perfectly right. We are going to have all sorts of hell because of that.