The Government is on the back foot on the 8th Amendment. Their aim is now to gain repeal at any cost. Politically, it has put its neck on the line, and this is being seen as win or bust- for Leo’s tenure and Simon’s political future.
Thus, they have to do whatever they feel will create a palatable narrative around repealing the right to life of preborn babies. Sensing that the proposal for abortion to 12 weeks and up to birth in cases of the ‘risk to health’ of the mother will meet significant opposition from the public, a promise of tighter legislation may be forthcoming.
But that does not matter. Just as proposed legislation can change on a whim now, it can change post-referendum as well – once the inconvenient 8th is out of the way.
So, step one in watering down the proposal to something they may feel is more palatable to the electorate is to introduce the qualifier of ‘serious’ before risk.
Rightly, Ailbhe Smyth of the Abortion Rights Campaign says ‘In our view, it would be dangerous to qualify the risk. A law cannot determine a medical decision… doctors who gave evidence… said medicine is not an exact science and they need to be able to make decisions.’
Yet, where was this ‘common sense’ in 2013 when legislation was drawn up to manufacture medical decisions? The ARC were not objecting then.
Peter Boylan indicates his own bizarre interpretation of medical practice ‘I don’t have a problem with them saying ‘serious’ risk because if the woman regards it as serious, then it is. It should be the woman’s assessment of the risk that counts’.
This statement beggars belief, especially coming as it does from a senior medical practitioner. When a man walks into a hospital with a wound to his leg, does the doctor let the man decide if there is a serious risk of him losing his arm?
What ‘substantial’ or unsubstantial risk to health in Dr Boylan’s view correlates to being equal to the life of the preborn child? That is a question he should be asked.
This is the Dr Boylan, who as Chair of the Institute of Obstetricians and Gynaecologists, welcomed figures published by the Maternal Death Enquiry Ireland (MDE) in December 2017 showing that the rate of maternal deaths in Ireland is extremely rare and ahead of rates in the UK.
The mind boggles. Dr Boylan wants to introduce a regime that is 100% unsafe for the unborn child, and offers no evidence that this will make Ireland a safer place for expectant mothers. The current system works in Ireland but ideologues like Dr Boylan want to mess with it.
The issue of the role of the law and the Constitution in relation to maternal health care is an important one. Since the 8th amendment has been introduced, those who see it as an obstacle to abortion access issue their demands under the guise of concerns regarding maternal health, frequently citing the ‘chilling effect’ of the 8th amendment, rather than looking at the facts of the matter.
The statistics simply add up. Ireland, under the 8th, is a safe place to be pregnant.
This is why the 2013 Protection of Life in Pregnancy Act was wrong and why further liberalisation for reasons of health risk, or significant health risk, is wrong.
Michael Sandel, in ‘What Money Can’t Buy’ commenting on the undermining role of commodification, says that ‘Altruism, generosity solidarity and civic spirit are not like commodities that are depleted with use. They are more like muscles that develop and grow stronger with exercise.’
In another book, quoting Aristotle, he says the primary purpose of the law is character forming: ‘Legislators make the citizens good by forming habits in them, and this is the wish of every legislator, and those who do not effect it miss their mark, and it is in this that a good constitution differs from a bad one’
The Irish Constitution protects mother and unborn child. The 8th Amendment has a formative effect. It cultivates care for two patients. The ARC and Peter Boylan seem to only have the focus of one patient in mind.
The 2013 law also has a formative effect. The potential 14 year sentence is a deterrent from taking unborn lives with abandon.
But the reality of the 2013 Act and the possible repeal of the 8th is that the former has already, and the proposed will likely, reshape the law and how maternal health care in complications are managed.
Prior to 2013 the law was silent on the medical care of complications in pregnancy. Doctors were able to work and care for two patients under the 8th with the objective of protecting the life of the unborn as far as practicable with due regard to the right to life of the mother.
Doctors, nurses and midwives for many years dealt with the challenging cases of complications in pregnancy without this law. While the life of the child cannot be directly taken (direct abortion) in order to save the life of the mother, the principle of double effect and indirect action allows for doctors to make difficult decisions in complicated scenarios in order to save the life of the mother without contravening the natural law, moral reasoning or the constitution.
Critics of the constitution call for certainty for medical practitioners in navigating the challenges of complications in pregnancy. In medical practice, in treating a range of illnesses, situations, complications, doctors act in a situation of uncertainty. They are guided by training, guidelines, good practice, knowledge of what works and what doesn’t. Doctors have difficult jobs. Sometimes they can get it wrong. There can be cases of medical malpractice, negligence, or misadventure even when doctors act in good faith.
And with the law having a formative effect, what happens to this chill now that the 2013 act is in place? It is no longer imaginary. It blows in the direction of the unborn child.
A 2014 paper ‘On defensive decision making: how doctors make decisions for their patients’, by Garcia-Retamero and Galesic, found that doctors selected much more conservative medical treatments for their patients than they would for themselves. Most notably, they did so even when they accurately predicted that the patients would select riskier treatments. When asked about the reasons for their decisions, most doctors (93%) reported fear of legal consequences.
The certainty the law offers is a vector in one direction- that of not preserving the life of the unborn child. The law has a formative effect. It forms not only virtues as Aristotle claimed, but also professional practice. A doctor with a family, a mortgage, the pressures of life, has their decision making processes in medical practice formed by a law that seeks to protect only one life in a calculus that involves two.
Dualta Roughneen, is a writer and researcher