William Binchy: No sensible legislator would go near the result of the Citizens’ Assembly

The outcome of the Citizens’ Assembly’s deliberations last Sunday surprised many people. No political commentator believes that most Irish people are about to vote for abortion on demand and abortion of disabled babies. Yet this is the legal regime that the assembly appears to favour. It proposes legalising abortion “on request (no restriction as to reasons)” and abortion where the child has a “significant foetal anomaly”.

Let us look at the first of these grounds. It is truly abortion on demand: the fate of the unborn child is no more secure if we use the sanitised language of the right to choose. If human rights are to have any meaning, one human being should not be entitled to choose to end the life of another, innocent and defenceless, human being. The idea that our law should authorise the taking of a child’s life with “no restriction as to reasons” is, frankly, abhorrent to any civilised society.

It is striking how rare it is to read a justification for “the right to choose”. Even the phrase itself is generally left incomplete. Yet, if we complete it, using non-emotive language, it is the right to take the life of another human being on the basis of the supremacy of choice. Our society has been founded on the value that no one has the right to choose to hurt, let alone kill, another innocent human being. The right to take the life of another, with “no restriction as to reasons”, needs explanation and justification.

Children with disabilities are entitled to the protection and support of all of us. A child with Down syndrome or spina bifida, it scarcely needs to be said, has a right to life, along with every other child. The United Nations Convention on the Rights of Persons with Disabilities provides in Article 10 that "States Parties reaffirm that every human being has the inherent right to life and shall take all necessary measures to ensure its effective enjoyment by persons with disabilities on an equal basis with others." Terminating the life of a disabled child because of the child's disability is not consistent with respect for the child's equal right to life.

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Before it was established, the assembly was touted as representing a guide to politicians as to public opinion. It is now clear that it is useless in that regard. The Assembly’s recommendations, with all respect to its participants, are a ragbag of slogans, lacking any logical consistency or normative coherence. No sensible legislator would go near them.

The reasons why the assembly proved to be such a failure can be probed by future historians, sociologists and psychologists with special expertise in group dynamics. Even to lay observers, it was clear from the outset that the benefits of the Eighth Amendment were not likely to receive a particularly strong emphasis.

What is the best way forward? The first thing that we should do is examine the present position. We have in place a constitutional provision whose interpretation and application have probably not pleased anyone fully but which, subject to one significant aspect, have ensured that mothers and their children receive the best care and protection for their lives. The exception is the legislation in 2013, which was rightly criticised as not being evidence-based, as well as being likely to generate demands for further extensions, as the assembly proposals testify. If we dismantle the Eighth Amendment, whether by amendment or repeal, we are likely to finish up, far quicker than many would expect, with the kind of abortion regime that the assembly wishes for: one which takes away the human rights protection now afforded to children without discrimination.

Nevertheless, in spite of the difficulties caused by the 2013 legislation, the Amendment is continuing to save lives. There are countless children today who would have been aborted if we had abortion “with no restriction as to reasons”.

The truth of the matter is that the reason why those favouring legalised abortion advocate for repeal of the Eighth Amendment is that the Amendment has been a success, not a failure, in its goal. The task for politicians is to get behind the slogans and ask themselves important questions, going to the core of their vital role. Is our society’s responsibility to protect all of its human beings or only some of them? How can our maternity hospitals provide the best obstetric care for mothers and their children? How can we improve perinatal hospice facilities for the families of children with life-limiting conditions? More widely, but no less relevantly, how can our society improve its support for women and children through its social, housing and economic initiatives?

The assembly’s proposals are useless but some excellent legal analysis was provided by experts who contributed their insights to the proceedings. What emerges from the debacle is that this is a time for calm reflection, not resort to slogans. A mature society with an open mind – the essence of genuine liberalism – would appreciate that our present constitutional dispensation offers the most effective way to protect all of our members on principles that respect the human rights of everyone without discrimination.

William Binchy is a barrister and adjunct professor of law at Trinity College Dublin. He is also primary legal adviser to the Pro Life Campaign.