Quadruple Jeopardy for the Unborn Child

The proposed change to the Constitution – to be voted on the 25th of May – will mean that the 8th Amendment, which protects the life of the unborn with due regard to the life of the mother, will be replaced with a statement that says: “Provision may be made by law for the regulation of termination of pregnancies.” The Government then proposes to introduce legislation to allow abortion on request up to 12 weeks, and then right up to 6 months on the same grounds as the British abortion model.

The proposed Constitutional change gives this and any future governments full control over the availability of abortion in Ireland. The proposal for the Oireachtas can be changed at the whim of politicians.

The proposed legislation to ‘regulate’ termination of pregnancies offers little protection to the unborn and is saturated with so many vagaries and elastic terms that it will be impossible to restrict and regulate in a meaningful manner the termination of pregnancies and the unborn. Furthermore, the proposed legislation offers no meaningful means of vindicating any residual rights of the unborn even if the law is broken.

    

1. THE STATE MAY NOT BE ABLE TO LEGISLATE TO RESTRICT ABORTION AT ALL.

This current proposal is being interpreted as stating that the Government will be allowed to legislate for abortion or against it.
In fact, this wording is ambiguous and may be open to Constitutional challenge should the government attempt to restrict abortion in any way.

The assumption is that the wording means that the Government can decide when and if abortions are to be allowed to take place. Another reading of the wording could be that it implies that the government can only regulate the ‘how’ of abortion. It does not guarantee the assumption that the government, under legislation, can restrict abortion in any case.

The Supreme Court has made clear that the unborn child has no rights under the constitution except under Article 40.3.3 which if removed will leave no rights.

Every born person or citizen under the Constitution has a range of rights but the unborn has none. These rights are regulated by concerns of social justice, morality and the common good, under the Constitution.

Once the rights of the unborn are removed, the question remains as to whether, given the wording for the law to regulate the termination of pregnancies, any legislation that limits abortion could be deemed unconstitutional and an interference in the rights of Citizens for no reason that can be substantiated by competing rights of the unborn child (he/she will have none), or social justice (the unborn has no right to social justice), morality (whose morality and on what grounds?) and the common good (there are no goods for unborn held in common).

For example, an individual may argue that abortion ought to be allowed for economic reasons as there is a constitutional right the right to an adequate means of livelihood and that being forced to carry and rear a child could impact on that right.

The Attorney General was equivocal in his advice to the Government on this new wording:

“If the amendment is adopted by the People, the Oireachtas would have an express power to legislate to regulate termination of pregnancy as it considers appropriate, in the same way as it legislates in every other area of policy.”

He does not state that the government may be able to restrict abortion as it sees fit.  He also states:

“Such an amendment would make it clear that it will be primarily a legislative function for the Oireachtas to determine how best to guarantee and balance proportionately the rights, interests and values that are engaged, in the interests of the common good.”

Of course, since he gave this advice, the Supreme Court made it clear that there were no rights of the unborn to be proportionately balanced.

And, hedging his bets: “While no approach can be completely free from the risk of legal challenge, the Attorney General advises that the approach recommended above is likely to be a legally safer option than a simple repeal”.

However, when referring to a ‘legally safer option’, he meant that this was safer for the government in case of residual rights of the unborn being used to restrict government freedom to legislate for allowing abortion when and as it sees fit.

His analysis was not assessing the reality of the absence of rights for the unborn child and legal challenge to the government from those seeking unrestricted abortion.

The proposed change to the Constitution may mean that the government will have no power to legislate to restrict abortion in any circumstances.

   

2. THE OIREACHTAS WILL DECIDE FUTURE ABORTION LEGISLATION, NOT THE PEOPLE.

The Heads of the Bill to be introduced by the government should the referendum on the removal of Article 40.3.3 to the constitution (the 8th amendment) be passed, will be titled ‘Regulation of Termination of Pregnancy Bill 2018’ and will allow for abortion on request up to 12 weeks, and then allow abortion to 6 months in cases of risk to life or health of the mother (the British abortion model), and also without restriction to term should it be deemed that the child will not survive to birth or long after.

We do not know whether this will be passed. We do not know how long this legislation, if passed, will survive before the current or future Government decides it wants or needs a more liberal abortion regime. Given the ‘evolution’ of the positions of Messrs Varadkar, Harris, Coveney and Martin amongst others, and with ‘evolving’ advice from ‘experts’ such as Peter Boylan, it should not be a surprise when further legislative changes come about.

Except, this time, the government will not be required to go to the public for approval. All rights of the unborn child will be removed under the Constitution if the 8th is removed. There will be nothing to stop a majority of politicians in the Oireachtas from, should they wish, desire, or feel their compassion requires it, from introducing any form of abortion regime – whatever the views of the people.

Those are simple facts.

    

A. Abortion will be liberally facilitated.

What is less certain is how the proposed legislation will be interpreted once introduced. It is already a liberal abortion regime. Evidence from other countries shows that the health of the mother – particularly mental health – is the justification for the vast majorities of abortion. Why should we expect that this will be different in Ireland?

There is confusion in the bill. It states that terminations of pregnancy will be not be allowed ‘beyond viability’ yet Minister Harris states – “The viability of the foetus would be assessed and agreed by two doctors… if viability is established and the pregnancy is ended on health grounds, then it will be done through early delivery with a full medical team.”

Early delivery is also termination of pregnancy. The only difference is that the child may survive and it seems that the government will place a full medical team on standby to help the child survive. The language of the proposed bill implies termination of pregnancy via early delivery will not be allowed though Minister Harris talks as if it will be.

Early delivery can lead to developmental problems, sometimes disability, in the child. Who takes responsibility for those outcomes?

What if the child is delivered early for mental health reasons which relate to the mother not wishing to continue the pregnancy and subsequently be a mother? Where is the government scheme for managing those scenarios?

Will there be government run orphanages or a state-sponsored adoption scheme for these children?

There are other areas of confusion. What of a child deemed unviable at 20 or 21 weeks? What is the means of terminating pregnancy? Is it early delivery or is it destruction of the child in utero? Why not give the child every chance? Or is the risk of impairment of the child too high to justify government investment in healthcare and the assumption the child is better off dead?

What about the risk to health or life of the mother in carrying a pregnancy to viability rather than to term? Will there be any balancing of rights and interests in those cases between the life of the child and the health of the mother or will the decision be that the child at 19 weeks is to be terminated rather than extending to 24 weeks? Would this make more sense? Couldn’t this be considered an option in non-emergency cases?

What is the ‘reasonable opinion’ that constitutes a ‘serious risk’ to the health of the mother? The legislation refers to good faith but how is this assessed? And by who? Can it ever be proven the medical practitioner did not act in good faith in assessing a probability of a serious risk? Surely there are only degrees of difference of medical opinion?

What of the child where there is present a condition affecting the foetus that is likely to lead to the death of the foetus either before birth or shortly after birth?

What element of ‘likelihood’ is being assessed?

What is the duration of ‘shortly’?

How is this assessed? Are there tables of statistics available for different conditions, which are based on evidence, that shows the likelihood of surviving different durations?

Studies have shown that of babies with Trisomy 18 (Edwards Syndrome), only 50% who are carried to term will be born alive. The median of survival among live births has varied between 2.5 and 14.5 days. 5-10% live beyond one year.

Is a 50% survival rate to birth an acceptable ‘likelihood’?
Is a 10% chance of living beyond one year a reasonable expectation?
Is one year a short duration or a long duration?
Or is the legislation really saying that Trisomy 18 means a life not worth living?
Based on what assumptions and boundaries is a medical practitioner expected to make his/her ‘good faith’ assessments of duration and probability? What even constitutes ‘good faith’?

Once all protections for the unborn child are removed from the Constitution, there is no reason not to make the law based on bare statistics, numbers and calculus, as they are no longer viewed as human life worth protection- so why not take the human element out of it and use statistics? Once all children with Trisomy 18 are aborted we will never have data to assess medical improvements that may change the calculus involved.

    

B. There will be no way to protect the child.

While the proposed headings include detailed recommendations on reviews where the mother is denied an abortion, there is limited detail on how the life of the child may be vindicated. In the General Scheme approved by Government, it is proposed that it shall be an offence to terminate a pregnancy otherwise than in accordance with the provisions set out in the general scheme and that a prosecution may be brought only by or with the consent of the Director of Public Prosecutions.

Assuming 3,000 abortions per year (conservative) or if equivalent to the UK abortion- pregnancy ratios, up to 20,000, assessing whether an offence has occurred is certainly a mammoth task for the DPP. Realistically, the law cannot be patrolled. And the government has demonstrated that it has no interest in doing so.

No detail is provided for how the government will enforce the bill. No detail is provided on who will act in the interests of the child when an abortion is desired by parents, and approved by two doctors.

Who will act by proxy for the child that may have had a probability (whatever that may be) of survival beyond birth for a non-short time (whatever that may be), where ‘good faith’ (whatever that may be) was not used, but has been terminated unnecessarily before viability, or terminated at the cusp of viability but not given every option of survival etc.

How will the DPP be assured that ‘good faith’ has been applied aside from a review of an annual report that he/she is given and is presented before the Oireachtas? There will be no due process for the unborn child. Why should there be once the unborn is eliminated from the Constitution.

Once the child becomes a non-person under the constitution the interest of the State in protection and pursuing his or her rights ceases to exist. The State, under the Children’s Rights amendment in 2015, has an interest only in the born child, rather than the unborn, once the 8th is removed. Unlike other laws, which reflect protection of citizens from each other, or the State, or to regulate the common good, the prosecution of abortion serves none of the standard interests that motivate the law once the child is removed from consideration under the constitution.

     

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 Dualta Roughneen is a writer and researcher