Tuesday, May 20, 2008

Abortion law reform long overdue

Ireland is a constitutional parliamentary democracy, one of the cornerstones of which is the supremacy of the Irish Supreme Court in interpretation of our written Constitution (Bunreacht na hEireann). While it is the role of the Dáil and Seanad to legislate on our behalf, they are legally constrained by the requirement that legislation must be in keeping with the Constitution. Should legislation violate the Constitution, the Supreme Court can strike it down. That is the theory, and it is one upon which the rights of our citizenry depends. The Constitution provides us with certain rights, such as the right to freedom of speech, the right to privacy, the right to public assembly, the right to vote etc. We rely on the Supreme Court to defend our freedoms. At a time when we are the only country in the EU to be granted a referendum on the Lisbon Treaty, we are reminded of how fortunate we are to enjoy the protections of the 1937 constitution as amended by referenda since.

It is disturbing then, that 16 years after the X-Case ruling, none of the Dáil parties are prepared to implement it. Costello J. granted an injunction in the High Court preventing a pregnant 14-year-old rape victim from leaving Ireland to have an abortion in England. Amid the furore that followed, the Supreme Court overturned his decision two weeks later to allow her to go, ruling that "if it is established . . . that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible."Here, the Court held that there was a real and substantial risk of suicide if the pregnancy continued; thus the termination was permissible, even in Ireland. However, where no such risk existed, both information and possibly travel could be prevented in the interest of safeguarding the right to life of the 'unborn'. The Government then entered a Declaration to the Protocol, saying that they would not use it to restrict travel or information. Amid divisions within the Fianna Fáil-Labour Coalition, three referenda were held in November 1992, allowing for the right to travel, information, and the closing of the allowance for abortion in cases where there was a risk of suicide. The first 2 referenda were passed, amending Article 40.3.3 to safeguard the rights to travel ("Subsection 3 of this section [Article 40.3.3] shall not limit freedom to travel between the State and another state") and to information ("Subsection 3 of this section shall not limit freedom to obtain or make available, in the State, subject to conditions as may be laid down by law, information relating to services lawfully available in another state"). The removal of the contingency on the risk of suicide was, however, defeated by the electorate. It would have limited the effect of the X case, by restricting the test to cases where the risk to the pregnant woman's life was due to an illness or disorder, and not to a risk of suicide. ("It shall be unlawful to terminate the life of an unborn unless such termination is necessary to save the life, as distinct from the health, of the mother where there is an illness or disorder of the mother giving rise to a real and substantial risk to her life, not being a risk of self-destruction.").

The 2 successful amendments were welcome to those of us who believe that our current abortion-regime is draconian and unfair to women. The electorate in 1992 clearly demonstrated a preference for a more liberal regime when they passed the information and travel amendments while rejecting the closing of what Fianna Fáil regarded as the 'suicide loophole'. I will set out my own stall on this controversial topic in this post. My views have changed greatly over the years because of the highlighting of the plight of rape-victims who are forced by our current regime to choose between travel to Britain for an abortion, carrying the rapists child to term, or acquiring the services of unqualified, illegal "backstreet abortions", possibly culmnating in death or infertility as a result. As an adopted child, and from a fairly religious family background, I had - until around 6 years ago, held the perspective that I had in some ways the abortion ban in this country to thank for my existence, as otherwise I may have been aborted. But I have since seen the bigger picture following years of debate among my social group, and observing this issue being ventilated through media coverage and dicussions on internet fora, blogs and in the 2002 Abortion referendum campaign. There is something cruel about forcing a rape-victim - especially a child - being forced to carry to term a foetus that she had played no part in creating. The Catholic Church hierarchy, as on so many other issues from contraception to women priests to divorce, are - in opposing abortion without exception, hopelessly out of touch with the reality and complexity of peoples lives in modern Ireland. They would force these poor people to carry the foetus created by the rapist to term, and insist on an unscientific perspective that views "life" as beginning at conception. This reflects a cruelty and aloofness that will be familiar to many victims of the Church, for example when abuse-victims were ignored when they tried to report what was happening to them. The thesis that life begins at conception is not even agreed by scientists, as it remains unclear when the foetus begins to feel pain, and at what point it is self-aware. In the same way that a family, in consultation with a doctor, may switch off the life-support machine of a brain-dead patient in a hospital, so too then, in my opinion, is there an analogy with the foetus prior to the development of the brain to the point of self-awareness. Why should one be considered dead but the other alive in these situations? There is a case then, not merely for the legalisation of abortion in cases of rape, but arguably too early on in the pregnancy where the foetus has not yet reached self-awareness, and is in a position analogous to the "life-support" machine situation I have described. We depend on the Supreme Court to interpret our rights. In that context, it is high time for the Government to legislate for the X-case. Further delay cannot be justified, and reflects a lack of leadership from our political-class.


1 comment:

y soc said...

All this abortion hoo-ha is simply a campaign of genocide directed against the white race, and the majority of them are too stupid to understand that!