Family & Life's Submission to the Citizens' Assembly

15.12.2016

Submission to the Citizens’ Assembly on the 8^th Amendment

Introduction

Ireland has a distinguished record in protecting the right to life of unborn human beings and providing world class medical care to pregnant women. The 8^th Amendment to Ireland’s Constitution was a pioneering declaration of the fundamental equality of all human beings. This is something of which we, as a nation, should be proud.

Background

In 1967 the UK Parliament passed the Abortion Act. It is clear from the debates at the time that MPs expected this to be a restrictive law (which on its face it is). They thought it would end “back street abortions” and so save women’s lives. The law came into effect in 1968 and the number of abortions rose rapidly. Today that legislation is responsible for about 200,000 deaths per year.[i] Even its principal sponsor, David Steel MP (now Lord Steel of Aikwood), has expressed grave misgivings about this.[ii]

In 1973 the United States Supreme Court ruled, in Roe v. Wade, that the US Constitution contains an unenumerated right to abortion. State laws prohibiting or restricting abortions were overturned at a stroke. US abortions peaked in 1990 at over 1.4 million.[iii]

In 1983, following a lengthy and detailed debate, the Irish people decided that they did not wish Ireland to follow the path taken by other countries such as the UK and USA where abortion, the direct and deliberate killing of an unborn baby, had become commonplace. To prevent abortion being legalised in Ireland, either by Act of the Oireachtas or a decision of the Irish Supreme Court, the Irish people amended their Constitution by inserting Article 40.3.3 (the 8th Amendment).

The Irish people voted (67% - 33%)  to amend the Constitution to acknowledge a fundamental human right, and to provide explicit protection for the unborn:

“The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”

Fundamental Human Rights

Fundamental human rights are not granted or witheld at the whim of the State or by popular vote, but belong to human subjects by virtue of their humanity. The 1983 vote did not purport to create or grant a new right, but to acknowledge its existence, anterior to positive law and judicial decisions. To remove the constitutional protection afforded by the 8th Amendment would be to take away from a class of human beings a fundamental human right—the right to life.

The phrase, “equal right”, is often misunderstood by those who ask how “a foetus” could have the same value as a woman. “Equal” here does not refer to equality of ability and achievement, status or role in society. It refers to the basic dignity, possessed by all human beings from conception to death, irrespective of age, ability and achievement. It recognises the continuity of an individual life from conception to death. While his or her growth and development progresses, his or her identity remains the same. This dignity confers a status that differentiates humans from all other living beings, and forbids the instrumentalisation of a human being by the state or others, which is what happens in an abortion. 

Contrary to repeated  claims, there is no “right” to abortion in international human rights law, and Ireland is in no way required to change its Constitution or laws in order to comply with international law.

The European Court of Human Rights, in the case of A,B, and C v. Ireland in 2010, recognised the right of the Irish people to determine for themselves the extent to which they wish to protect the unborn.  At that time the Court acknowledged that there was no reason to believe that the wishes of the Irish people in this regard had significantly changed since 1983.

The vast majority of Irish people still wish to see unborn human life protected and remain opposed to the introduction of a British-style abortion regime. This is borne out even by opinion polls conducted on behalf of pro-abortion groups.

The 8^th Amendment Saves Lives

Ireland’s abortion rate (based on figures of Irish women having abortions overseas) is dramatically lower than that of most Western nations. This is substantially thanks to the 8^th Amendment, and the life-affirming culture that it underpins, and it translates into thousands of babies born every year whose lives might otherwise have been ended by abortion.

The existing statute law on abortion, the Protection of Life During Pregnancy Act, 2013, is based on the 8^th Amendment (as interpreted by the Supreme Court in the X Case). Ever since the enactment of this law, however, there have been repeated calls for a change to the Constitution to permit abortion on grounds beyond those permitted by Article 40.3.3 (as interpreted in the X case), and covered by the 2013 Act.

Although many of those calling for change have aknowledged that they regard abortion as a woman’s right and favour a British-style regime, they have based their claims on ostensibly narrow grounds, notably where the baby is diagnosed with a serious medical condition that significantly limits his or her life expectancy.

Babies Diagnosed with Life-Limiting Conditions

Despite its frequent use in the debate on the 8^th Amendment, the term “fatal foetal abnormalities” is not an accepted or recognised medical term, and there is nothing approaching a medical consensus as to what it might mean. The fact that someone, whether born or unborn, is seriously ill, even with a condition that is confidently judged to be terminal, does not justify causing his or her death.

Even for very severe disabilities there are cases where the baby has survived much longer than doctors predicted.

Prenatal tests always carry the risk of a false postive result, where a perfectly healthy baby is misdiagnosed as having an illness.

Any change in the law will radically alter the culture of the medical profession, placing enormous pressure on expectant mothers at a time when they are particularly vulnerable. It will also invite further discrimination against other disabled people whose conditions are not terminal.

Instead of increasing the pressure on families to make a choice they may later bitterly regret at a time when they have received devastating news, greater emphasis should be place on supporting and  helping families through this difficult experience.

Perinatal hospice care should be made available for families whose unborn baby is diagnosed with a condition likely to cause death shortly after birth.

Pregnancy Resulting from Sexual Crimes

Rape is an appalling crime of violence against women, but it does not justify abortion. The rapist should be punished to the full extent of the law, and the victim should receive every support that society can offer. Killing an innocent child merely adds another layer of injustice. The child conceived through rape has the same rights as any other child.

Many women who become pregnant as a result of rape, even in jurisdictions where abortion is freely available, choose to continue with the pregnancy. Some give the child up for adoption, others choose to raise the child themselves.

Figures from the Rape Crisis Centre indicate that a high percentage of Irish women who become pregnant as a result of rape choose to keep their babies rather than travel abroad for abortions.

Legislating for abortion in cases of rape while maintaining any kind of meaningful or effective law restricting abortion would involve subjecting rape victims to a further ordeal that would be unacceptable.

Conscience Rights of Medical Professionals

Abandoning the life-affirming culture underpinned by the 8^th Amendment will create great difficulties for many medical professionals who are committed to the two-patient model of care that has prevailed in Ireland and has contributed to the development of medical techniques aimed at saving both mother and baby. These will face growing pressure to become complicit in actions they believe to be gravely unethical. The Assembly should consider the experience of other countries in this regard.

Irish Women Having Abortions in Britain

Every year, for the past ten years, the number of Irish women having abortions in Britain has declined.

Official British statistics indicate that the vast majority of these abortions are for “social” reasons.

Every effort should be made to ensure that no woman resorts to abortion because she feels she has “no choice”, and initiatives to reduce the number of Irish women seeking abortion abroad should continue to be promoted.

There will always be a certain number of Irish women who will travel abroad for abortions so long as neighbouring jurisdictions have more permissive abortion laws. However regrettable this phenomenon may be, it could only be ended by the introduction of an abortion law in Ireland far more permissive than any that could be credibly claimed to meet with the approval of the Irish people.

Those who may be tempted to think that Ireland could abandon the 8^th Amendment and yet adopt a more restrictive abortion law than Britain’s should consider the example of France. The law there contains many of the restrictions that might be proposed as being preferable to the British model such as a much lower time limit and a mandatory waiting period. Despite its apparent restrictiveness, the French law permits an abortion rate comparable to Britain’s.

Conclusion

The members of the Citizens’ Assembly have been entrusted with a great responsibility. All of us, men and women alike, have a duty to defend human rights, particularly those of the most vulnerable and defenceless, but a particular burden has been laid upon you. It is your duty to vindicate the fundamental human rights that are being challenged and that would be substantially undermined by removal or evisceration of the 8^th Amendment.

Family & Life hopes that this submission will be helpful to the members of the Citizens’ Assembly in their deliberations. It will be happy to provide any other assistance that may be required, including oral testimony.