Cross-posted from MercatorNet
By Lucinda Creighton
I must say that I never imagined when I stood for election to Dáil Éireann for the second time in 2011, that I would find myself here, just 2 years later, speaking on a Government sponsored Bill to liberalise abortion law in Ireland.
I am in no doubt by now that this legislation will pass, notwithstanding the many reservations expressed privately and publicly by colleagues from all parties – indeed, in the face of the grave reservations expressed by experts psychiatrists in two separate sessions of Oireachtas health committee hearings.
I can only hope that logic and verifiable evidence will prevail and substantive amendments will be accepted to ensure that the rights of all human beings are protected with the full rigour of the law.
I have never regarded myself as a pro-life campaigner. I was not motivated to become active in politics because of the abortion issue. In fact I have spoken previously about the fact that I held a very different view on this matter when I was a student.
However, after much reflection, my views have evolved over the years; as I learned more about the topic, as I came in contact with friends and family affected by abortion, and as I matured and developed my own independent analysis of this most sensitive topic.
Crucially for me I stepped outside the “groupthink” which I genuinely believe dominates this debate in Ireland. It seems that if you do not succumb to the accepted view that abortion is a “liberal issue”, a “women’s rights issue”, a cornerstone of the “progressive agenda”, then you are deemed to be a backward, illiberal, Neanderthal fundamentalist who belongs to a different era. The distinct irony of this prevailing view, is that it is so illiberal in its intolerance of any alternative outlook.
Of course I respect the right of people to campaign for liberal access to abortion. Maybe they do not consider abortion to be the intentional ending of human life, and so they simply see it as a medical procedure, which can simply be regarded as a clear-cut choice.
I can appreciate this way of thinking because I used to think that way myself. Carried along with the accepted supposedly “progressive” view on abortion, I never considered the other life involved.
Of course, because of the huge stress and trauma that surrounds abortion, we know that this medical procedure analogy is a sterile, yet dangerous, inaccuracy. I think that the vast majority of us know and appreciate that an unborn baby, is just that, a baby.
If such a baby is born prematurely, we do not simply shrug our shoulders and say this baby has not come to full term, it is merely a foetus, we will not treat it. Of course not. We will do everything possible within the bounds of medical science to save that baby’s life. We know that baby cannot live independently outside the womb, but that is not a cause to give up on it. This is human life after all. We must save it.
Some say this is a women’s issue, that its all about women’s rights. Therefore if you are “pro life”, you are somehow “anti woman”.
Yet, when one steps back from the stifling groupthink, and reflects, I think one arrives at a different view. I am a woman and I am happy to say that I am also very much in favour of women’s rights. But by that I mean all women. Not just adults or adolescents or children – I mean babies too.
The sad reality, as we look around the globe at how women’s rights are advocated, promoted and defended, it is clear to me that abortion is in fact, often a tool for the oppression of women.
Look at China, India, Korea and indeed some parts of Europe and the United States. The societal preference for boys over girls has led to the obliteration of tens of millions of baby girls who were simply never born. A famous feature carried by the Economist magazine in 2010 showed just how females are discriminated against in this age of abortion.
One paragraph from that edition of the Economist jumped out at me and frightened me:
Until the 1980s people in poor countries could do little about this preference: before birth, nature took its course. But in that decade, ultrasound scanning and other methods of detecting the sex of a child before birth began to make their appearance. These technologies changed everything. Doctors in India started advertising ultrasound scans with the slogan “Pay 5,000 rupees ($110) today and save 50,000 rupees tomorrow” (the saving was on the cost of a daughter’s dowry). Parents who wanted a son, but balked at killing baby daughters, chose abortion in their millions.
It would be bizarre if we, as legislators and hopefully, as thinkers, did not ask the obvious question “What is the net difference” between such screening followed by intentional gender-based abortion, and the intentional killing of that baby after delivery? The answer is of course none.
The net effect is exactly the same, which is to say that an innocent baby, is simply wiped out. The scale of this exercise is such that in China, by the year 2020, there will be 30-40 million less women than men walking the earth, growing up, having families, going to work and generally contributing to society . 30-40 million less women is hardly a triumph for feminism or liberalism.
The horror of abortion is also to be seen closer to home. The phenomenon of “designer babies” is one if the elements which horrifies me most. This year we celebrate the 10 year anniversary of the Special Olympics coming to Ireland.
That was an extraordinary occasion, which saw children and adults with intellectual disabilities and particularly Down Syndrome celebrated in this country like never before. In a sense it marked the end of marginalization and the beginning of a new era when people with special needs were finally embraced and celebrated like never before.
Many people will not like the juxtaposition of these two issues, but I believe in facing reality. In the United States, a country which initially introduced abortion in extremely limited circumstances, the use of pre natal screening is today absolutely prolific and increasingly acceptable in society.
There are many studies charting disturbing trends but one by F.X. Egan, of the University of Connecticut, showed that of the 122,519 babies expected to be born between 1989 and 2006, only 65,492 were in fact born. Almost 50% of those babies were simply obliterated, because they were not “perfect” whatever that means. I find this shocking and terrifying all at once.
This again shows that this question of abortion is not a liberal issue – far from it. In a liberal society we celebrate life in all its imperfect manifestations. We also celebrate the right of human beings to enjoy life – whether we speak of a criminal on death row, or an innocent baby girl, or a baby with Down syndrome. None of us is perfect, but our life is worthy and we a all worthy of life. Who is any one of us to determine that even one single life is not worth living, not worth protecting?
As I say, I did not stand for elected office to pursue a “pro life” agenda. Of course my view before all of the elections I have contested, was crystal clear, and often repeated on doorsteps in my constituency and on the airwaves. It was of course, no secret that my party, Fine Gael, was a party which unashamedly defended the right to life and issued repeated statements to that effect over the years, including stridently in advance of the last general election.
But I campaigned, as almost all politicians did in the last election, on a platform which was almost entirely focused on the economic future of our country. For me, and for Fine Gael, this was essentially a pro enterprise agenda, concerned with restoring our economic sovereignty, ensuring we emerge from the shackles of our bailout programme. It was about restoring confidence and hope to the Irish people, and doing so in the framework of crucial cooperation with our partners in the European Union.
In the two years and nearly 4 months since our Government was formed, this is what we in Fine Gael have dedicated ourselves to. Along with Taoiseach Enda Kenny and all of our Ministers, I have worked day and night to contribute to this country’s recovery. I certainly don’t want to give up on this work. We still have much to do.
The revelation of the Anglo tapes last week, reminded me of this. It minded me once again of the disease and rot at the heart of the system, which I want to contribute to changing.
But what of another type of rot – one which could enshrine in Irish law, for the first time ever, and in contravention of our express constitutional obligations, a hierarchy of human being in this State. One which says that we can select who deserves to live and who does not.
I’ve had people contact me in recent months condemning me for having a “moral” or ethical concern about abortion. Some demanded that I leave my morals or conscience aside in order to support abortion. Now I must say that I find this bizarre.
There is an emerging consensus in Ireland which suggests that having a sense of morality has something to do with the Catholic Church. It is automatically assumed that if you consult your conscience, you are essentially consulting with Rome. This is deeply worrying. It is a lazy way of attempting to undermine the worth of an argument, without actually dealing with the substance. This is not just a Catholic issue, any more than it is a Protestant or Muslim issue. This is not a religious issue. It is a human rights issue.
I wonder what one should consult when voting on a fundamental human rights issue such as this, if not ones own conscience? My personal view is that all I can do, when making a decision on life and death, and that is what we are considering here, is consult my conscience, which is based on my sense of what is right and what is wrong. What else can I consult? The latest opinion poll? The party hierarchy? The editor of the most popular newspaper?
I mentioned groupthink, which is a corrosive affliction in this country. We saw it in the Haughey era, we saw it during the Celtic Tiger era, and we see it on this question of abortion. It is easy to understand why people in positions of responsibility want thorny issues to simply disappear. It is far easier than risking conflict, unpopularity or worse; paying the price for speaking up…
Wouldn’t the country have been much better served in the 2000s, had more people on the Government benches, in academia, or in the media been prepared to raise their heads above the parapet? I am sure that there were many conscientious objectors who realised that what was happening was wrong, yet they all remained reticent to avoid the wrath of their colleagues, the public, their bosses, the media and so on. Conscience lost out, and the country suffered greatly.
We all have the right to conscientious objection. It is enshrined in Article 18 of the United Nations, Universal Declaration on Human Rights which states :
“Everyone has the right to freedom of thought, conscience and religion….”
I contend that this freedom of conscience is not just a right, but also a duty.
Substance of the Bill
Given my misgivings about this Bill, I am hoping that some substantive changes might be accepted to improve the legislation in order to make it more compatible with our constitutional obligations as legislators.
It is fair to say that sections 7 & 8 of the Bill do not cause me any concern. In fact I welcome the fact that we will be ensuring certainty for medical practitioners and pregnant women in the case that there is “a real and substantial risk to the life of the mother” in accordance with the test set down by the Supreme Court in the X Case.
It is right and proper that all women, including prospective mothers, can benefit from the very highest standard of care in Irish hospitals. No woman should lose her life through inaction during pregnancy. I hope and believe that we are all agreed on that. That is surely a pro life position.
However I am deeply concerned about the inclusion of the so called “suicide clause” in the legislation (section 9). This is, in my opinion, and in the opinion of the vast majority of psychiatrists in the country, is a very worrying step.
Not only does it fly in the face of the evidence presented at both hearings of the Oireachtas health committee, where the overwhelming view of the medical profession was that suicide could never provide a treatment or a solution to suicidal intent, but in addition, this clause has the potential to normalise suicidal ideation by enshrining suicide on our statute book for the first time.
The only way to avoid the introduction of this flawed element of the legislation is to omit it entirely from the Bill. I would urge Minister Reilly to to read and reflect upon the expert psychiatric evidence presented to the Heath Committee hearings. I would also ask him to study the joint statement endorsed by 113 Irish psychiatrists, who unanimously declared in an alarming but illuminating statement that the suicide clause is simply unworkable.
It seems from recent statements from Ministers, that the Government’s view is that there can be no term limit on the right to end a pregnancy by inducing delivery. In other words if a woman’s life is in danger, and the unborn baby is deemed to be viable, there is an obligation to bring forward delivery in order to save the life of the woman while making all efforts to also save the life of the baby.
This of course has the potential to cause major medical negligence litigation in the future. However, I do not propose to address that point here. Others have made that point cogently.
Further to this position, the Government has expressed the view that whether a pregnancy can be ended by means of an abortion depends on the gestational stage of the unborn child. In other words, if a foetus is viable then delivery has to be induced. An abortion is not permitted.
The clear result of all of this is an inherent term limit for abortion within the legislation. If this prohibition on abortion after viability is established, is assumed and indeed articulated publicly by the Government, then why not enshrine it in the legislation?
The leading authorities on Irish constitutional law, Hogan & Whyte in Kelly’s constitution (originally authored by former Fine Gael TD and Minister, Professor John Kelly) support this line of argument and go so far as to say it is “disingenuous” to suggest that the X case allows abortion up until the point of birth.
Logically and legally by this analysis, there is a constitutional term limit already in place, namely the point of viability outside the womb. Both Government and the leading academics agree on this point.
Given that there is agreement between the Government and the leading constitutional lawyers in the State, why should this not be expressly stated in the legislation? I am strongly of the view that an amendment to the legislation clarifying and confirming the legal term limit for the carrying out of an abortion is necessary. It is also perfectly constitutional and further I would argue that it is the absolute minimum protection necessary in a civilised country.
Such a provision would give a firm legal basis to what is already the interpretation of Government, and crucially would provide some reassurance to those citizens with concerns about the possibility of abortion up to full term (which does not exist in any jurisdiction to my knowledge – even regimes where liberal abortion on demand exists impose term limits).
Right to vindicate constitutional rights of unborn
I am entirely perplexed as to why the right to legal representation for the unborn is excluded from this legislation. It is the minimum protection required to be afforded to unborn children.
It is important to remember, at every step of this legislative process, that the unborn child is a human being, a person and has full rights as such under our Constitution. This means that as a “constitutional person” an unborn baby has the exact same right to life as any other living “constitutional person”.
I think this concept can sound a bit abstract to many people. They might ask, how on earth can an unborn baby, with no voice and no capacity, benefit from legal representation. However, in reality, and in the pursuit and vindication of human rights, this is nothing unusual.
A baby one day old can be represented in the courts, and this happens regularly, for example in medical negligence cases, through the “ad litem” procedure. Equally, a person of limited mental capacity can be represented in our courts, in order to have their rights vindicated.
When you think about it, this of course is not a luxury afforded to the most vulnerable people in our society. On the contrary, it is often the only way in which they have their constitutional and human rights vindicated in a world where otherwise they might suffer greatly.
I understand that some people do not believe that a foetus is a person and therefore that it has no legitimate expectation to have its constitutional rights vindicated. This is however simply an idealogical position. It is not borne out by the law or by our Constitution, Bunreacht na hÉireann, which explicitly recognises it as a person, and therefore with the same and equal rights as all other people.
Now I can only assume that the logic behind this omission in the Bill is a view that legal representation is not warranted on the grounds that medical decision making does not warrant consultation with all parties
However, it is hard to think of any other “medical” decision where the rights of a third party (and not that of the patient) are directly affected, so surely legal representation is more (and not less) appropriate in these cases.
Decisions made under sections 7 and 8 of the Bill are purely medical decisions based on empirical evidence.
However, decisions made under section 9, relating to suicidality, are of a different nature. They involve judgments of credibility, veracity etc. by psychiatrists (and not simply empirical observation by doctors) and as a result the decisions should be detailed, forensic, investigative, and will inevitably take place over a period of days.
This difference in nature between the decisions to be made under sections 7&8 and those under section 9 was essentially the central point of former DPP Eamon Barnes’ recent article in the Irish Times.
These decisions are also quasi-judicial in nature, because of the “panels” system, so surely the unborn should be represented.
Constitutional obligation to act
It is impossible to justify a situation whereby the unborn (a constitutional person) would be prohibited from being represented in front of these panels when grown adults (also constitutional persons) are entitled to such representation in front of similar such panels where decisions have a profound impact on their rights, for example in front of Mental Health Tribunals under the Mental Health Act 2001.
Furthermore, it is arguable that the Attorney General has a constitutional obligation to act when there is a public interest in vindicating rights which are identified in the Constitution.
This is acknowledged in much case law as a “privileged role” of the Attorney General. The Supreme Court has specifically recognised this role in relation to Article 40.3.3 the right to life as per Judge Finlay in the X Case. This right or duty of the AG is inherent in the Constitution and therefore should be included in the Bill.
Furthermore, under the Constitution all interested or potentially affected parties to a legal process must be given a right to express their point of view (i.e. the fundamental constitutional right of participation – audi alteram partem – both sides of any case must be heard).
This was reinforced recently by the Supreme Court itself in Dellway Investments Ltd. v NAMA (2011).
Clearly the right to life of the unborn is “capable of being directly affected in a material way” by a decision taken under section 9, under the formula given in Dellway.
Since this is a constitutional principle it is implied into all statutes. It seems likely that the legislation could be successfully challenged on the grounds that no specific mechanism is in place for the position of the unborn (a constitutional person) to be advocated or a means for them to vindicate their rights.
I have mentioned some key areas in which this legislation needs to be amended. I know that Minister Reilly has stated his intention to accept amendments during the committee stage. I take him at his word and assume this means substantive amendments based on evidence, and not just procedural ones.
If this Bill is to genuinely live up to its title “The protection of life during Pregnancy Bill” then it should simply aspire to do just that – provide protection to all lives – no more, no less. It must protect women who’s lives may be endangered during pregnancy, we expect and demand that this be be the case. It must also protect the life of babies in pregnancy. Otherwise the title will simply be misleading.
Ireland is a great country for mothers and babies, where the best possible care has been, and continues to be afforded. This Bill has the potential to change that, and to change the compassionate culture of care which have treasured for so long.
Before I conclude, I wish to read an email I received last night which sums up the essence of the problem with this Bill:
Dear Ms Creighton,
My name is Dr Y. I am a psychiatrist for the last ten years and I am also a woman and a mother. I have experienced both depression and pregnancy.
From all these perspectives I ask you to think long and hard before the vote on the “life on pregnancy” bill, and discuss your concerns with your party colleagues.
Suicidality is not an easy “diagnosis” to make. It is dynamic, not static, with the matters contributing to the suicidal state constantly changing. There is absolutely no test one can make to predict whether someone will die by suicide. Finding out one is pregnant for all the wrong reasons is a devastating life altering thing, but as human beings we try to help people adjust and make decisions in a clear frame of mind. Abortion has never ever been a treatment for suicidal ideation and completed abortion may end up being one of those dynamic factors that pushes someone to contemplate suicide. There is nothing so devastating as guilt to the depressed mind.
Two wrongs don’t make a right, please consider diverting energy and resources to supporting people with unwanted pregnancies, not pushing them down a path that may be detrimental to their mental health later when it is too late.
Thank you for reading this.
This sums up very well why this legislation as currently framed, is considered unworkable by so many experts. I have had countless emails and letters, such as this, from concerned psychiatrists in the past few weeks. I have not received one single letter from a psychiatrist welcoming this Bill or saying that it is necessary to deal with suicidal intent.
Compassionate, clinical care is what is needed and the government should put all possible resources into providing this for young, vulnerable women. Abortion solves nothing.
I know a number of women who had abortions and deeply regretted it. I genuinely do not know any woman who has had a baby and regretted it. No matter the circumstances, the initial stress, anxiety fear, stigma or concern, we must support women in their hour of need. That is simply our moral and constitutional duty.
Lucinda Creighton is Ireland’s Minister of State for European Affairs.