Tag: Supreme Court

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Politics

Belief In The System

English: Lucinda Creighton, TD
Anti-abortion Minister Lucinda Creighton, who resigned rather than vote for her own government’s bill (Photo credit: Wikipedia)

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.

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(Apologies to mailing list subscribers who were accidentally sent a much earlier draft of this post.)

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Cosmography Politics

Ireland's Abortion Law

Several people have asked me how our laws can directly contradict our own Supreme Court, which ruled that a pregnancy may be terminated when it threatens the woman’s life. How was this disconnect allowed to continue until somebody died? It’s not easy to explain, but I gave it my best shot.

It’s a constitutional impasse. The Supreme Court cannot force the introduction of a law, nor can it strike down existing legislation. It can only reject as unconstitutional bills referred to it by the President before signing. So the existing law – a blanket criminalization of abortion (for which the penalty is life imprisonment!) – stands, even if it is in conflict with the constitution.

The government has a clear duty to amend the law to reflect the Constitution – indeed, has had that clear duty for 20 years now – but legislature is meant to be the sovereign voice of the people so nothing has the power to force it to legislate, and neither major party wants to handle the political poison chalice of abortion. Even with the Catholic Church in general disrepute, religious observance at an all-time low, and polls showing strong support for abortion in some circumstances, framing the legislation would still spark huge ideological conflict in the conservative grassroots of both. And it takes a lot to shift the idea that abortion = killing BABIES, especially with religious right organizations able to wallpaper the country with pictures of cute foetuses at will. (They’re not short of funds, they have strong links with the religious right in the US.)

In 2010 however three women brought a case to the European Court Of Human Rights, which basically told the government that pretending a major women’s rights issue would just sort of somehow go away was not acceptable. And so it did what governments do – commissioned an inquiry to elect a commission to create a report, so weakening their identification with the eventual legislation, and of course delaying the fateful day a little longer.

A little too long for Savita Halappanavar.

The bitter irony for the religious right is that it’s the “Pro-life” amendment they campaigned for back in 1983, in the hope of keeping out a (then) rising tide of liberalism, that makes the antediluvian abortion law unconstitutional – because it describes an equal right to life for the woman¹. They didn’t want any woman’s right to be mentioned of course. They would probably have been happy with the innocent foetus having a prior right to existence over a necessarily sinful adult woman. Relatively sane legislators at least managed to insert this in the process of framing a constitutional amendment bill. But in a horrific case in 1992, the Supreme Court ruled that the suicidal feelings of a pregnant child rape victim constituted a threat to her life, so making that grounds for an abortion.

The religious right saw this as a potential – even deliberate – opening for abortion on demand. Now all a woman would need to do is say she felt a bit low and she’d get an abortion. So they actually campaigned to amend their amendment to explicitly discount suicide as a danger to the woman’s life.

Naturally the populace rejected this. We’ve heard about the judgement of Solomon.

When we rejected it, they tried to introduce it again. We rejected it again.

And you know what makes this all surreal and ridiculous? There is abortion available on demand in Ireland, and has been for decades. Not within Ireland, no. But a twenty minute plane ride away. You can go to Britain² or many other parts of the EU. I don’t claim this doesn’t put significant obstacles in the way, especially of poorer women, but thousands obtain terminations every year. Our bizarrely dated, draconian law prevents hardly any abortions at all.

Not that the religious right hasn’t tried to change this as well. When it was established that a woman in certain circumstances – i.e, she might die – was legally entitled to the abortion she couldn’t legally have here, they campaigned to prevent woman travelling abroad to have abortions, or obtaining information about abortion services in other countries. In a way it’s a shame they didn’t get their way. If women were being given ultrasound scans in the airports, if we had Internet filters to block sites that mention abortion, if adverts were cut out of papers and magazines, then their illiberal ideological madness would have been seen for what it was. We’d probably have abortion on demand here now. The ideological posturing survives because in reality it makes little difference.

Unless of course you are too sick to travel.

Sorry for that excursion through the history of nasty. We now reach the current situation, where things have been finessed with “guidelines” for medical practice – essentially, a life-saving medical procedure that inadvertently kills a foetus is not an abortion. Which seems all quite humane – until you have a situation like Savita Halappanavar’s, where terminating her pregnancy was not an operation necessary to save her life but merely one that would have reduced a hard-to-quantify risk to her life. Now I think a sane person would say that if the foetus cannot survive then there is zero conceptual, never mind moral, reason not to abort. Unfortunately the law as it stands was not created by any sane process.

But as luck would have it, the report I mentioned has just been completed and is about to be published – right into this storm of moral outrage. I am cautiously confident that things will change now.

²Or “the mother” as the amendment calls her, in some quite extraordinarily loaded language.
²Britain rather than the UK advisedly, as in a weird cross-border mirroring, abortion is also illegal in Northern Ireland. Presbyterians seem no more hot on women’s rights than Catholics.

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Politics

What To Do About Guns?

President Obama will have to act on gun control – and fast. Otherwise it becomes an election issue, and the Republicans can say that he is going to take everyone’s guns away. Or make everyone carry Gay, pink guns with feathers and sequins on them. Or that only Muslims will be allowed guns. Or that anyone with a gun will have to donate their organs to illegal immigrants while they’re still alive. Anything, really. It’s perfect for them. Mad stuff like him being a Muslim Kenyan will only be believed by people who, let’s face it, weren’t going to vote for him anyway because he’s Black. But the Republicans can say “Well we know he has to do something with your guns. And he hasn’t said what. So obviously it’s going to be worse than you can even imagine.” He needs a policy, now.

But as I said yesterday, how do you control the gun ownership of people who have guns? Well yes, if it came down to it and if the Supreme Court – or a new Amendment – allowed, you could take their weapons off them. The theory that a personal stash of assault rifles guarantees liberty can de refuted with one word: Airstrikes. That’s not to say that a few gun-rebels wouldn’t be able to hold out for years and years in a campaign against government; guerilla warfare is tough and America is a big place. But the vast majority would be defeated easily, the remainder only as free as anyone in hiding can be free.

Of course no one wants another American Civil War. Well OK some people do, but even they want one they can win this time. Nobody wants to see the US descend into armed conflict to protect people from the dangers of guns. Except seriously big fans of irony. There has to be a safer way to lower the danger level. Confiscating legally-purchased weapons would be hugely difficult politically and certain to lead to fatal incidents. But there is a way to mitigate the harm that can be done with them:

Limit the supply of ammunition.

Restrict not the amount you can buy, but that you can possess. Have people bring back spent cartridge cases to show they’re not stockpiling. If they want to lay in more supplies than might be needed for a normal hunting expedition, have them produce an annually-renewable certificate of mental quietude. Give them that Voight-Kampff human empathy test. Have them say why.

It won’t stop all the nuts, no. The survivalists and paranoids and “patriots” will smuggle ammo, buy it from criminals on the black market, even manufacture their own cartridges in secret factories. It will be far from perfect. But it will make it significantly harder for a disturbed person to tool up the moment they feel a delusion coming on.

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Politics

No On Both Referendums

"Well Connected" - Photo Irish Independent

Turnout is low. Too low.

Late in the day as it is, I want to urge people to get out and reject both referendums. There is a lot of confusion about them, I do not think government has paid sufficient attention to explaining them – in itself a reason to refuse their request for a change – and in particular there seems to be misunderstanding over the judges’ pay issue with many associating it with the exorbitant legal costs, of the Tribunals in particular.

The legal profession does need to be reined in, but this amendment simply has nothing to do with that. It is the fees charged by barristers and law firms that make legal action so expensive. Judges are paid by the state, and the cost of employing them is almost trivial by comparison.

Of course reducing their pay would save some cash. But not a lot, and it would come at the price of a very important principle. What is there to stop a future government, with a bill being tested in the Supreme Court for constitutionality, threatening judges with drastic pay reductions? If this amendment passes, nothing.

The independence of the judiciary is essential to a free country, and we shouldn’t even be dreaming of compromising it.

As for the other amendment, I think the Oireachtas should have the power to hold parliamentary enquiries. But I would rather we did without them for a bit longer than give excessive powers to government. This amendment seems very vague, and I simply can’t believe that broad new powers for TDs and Senators won’t end up being abused for political ends. We need to examine this more carefully.

And as for the Presidency, that’s turned from a fun game into a desperate last-minute attempt to snatch victory from the jaws of Fianna Fáil. You may not be a fan of Michael D., but he’s the only one now who can prevent our next President being a man who, increasingly, looks like a new Bertie Ahern.

Please, get out there and help.

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