Referendum on the Eighth Amendment
Sir, – One of the real achievements of the Eighth Amendment is that prominent obstetricians and gynaecologists are now household names.
Does this happen in other countries? – Yours, etc,
St Sauveur le Vicomte,
Sir, – The Taoiseach has expressed concern that a No vote would lead to the prosecution of women who have purchased abortion pills on the internet. Section 22 of the Protection of Life during Pregnancy Act 2013 does indeed make it an offence to intentionally destroy unborn life. However, the DPP has discretion in deciding whether or not to bring a prosecution, and one element of that discretion is the public interest. Given the terrible pressures that an unexpected pregnancy can bring, in most cases it is likely that the public interest would not be served by a prosecution. This is as it should be, and those of us seeking a No vote would abhor a prosecution being brought in such circumstances.
The Taoiseach is also reported to have said that the penalty for taking an abortion pill is worse than the penalty for rape. This assertion is bizarre and entirely wrong. The maximum sentence under the 2013 Act is 14 years, but any sentence imposed is likely to be lenient. The maximum sentence for rape, by contrast, is life imprisonment, and sentences currently average at around 10 years.
Finally, for the record, when the 2013 legislation was before the Dáil, Leo Varadkar voted against a proposed amendment that would have exempted pregnant women from prosecution for procuring an abortion. – Yours, etc,
Dr CONOR HANLY,
School of Law,
Sir, – According to retired chief justice Ronan Keane, “repeal does not mean the unborn have no right to life” (“Repeal of Eighth does not mean unborn have no right to life”, Opinion & Analysis, May 16th). His main argument would seem to be based on the Article 40.3.3, which he would like to see deleted, but which, he rightly contends, “does not purport to confer a right to life on the unborn; it recognises such a right exists and guarantees that it will be defended and protected”. He then adds: “This reflects a strand in our constitutional jurisprudence which treats certain fundamental rights as anterior to and not merely deriving from the Constitution”. This strand of jurisprudence, he contends, will ensure that the courts will most likely in future recognise that the unborn does, despite the deletion of the Eighth Amendment, still have a right to life.
His case is undermined by his own account of the Supreme Court decision of March 7th which dismissed consideration of the obiter dicta in pre-1983 cases on the grounds that, in the words of Mr Justice Keane, “some of those dicta were grounded on a particular philosophical approach based on natural law, which had been disavowed by the court in a later case”. But it was natural law that was the philosophical approach undergirding that earlier constitutional jurisprudence which recognised certain fundamental rights as anterior to and not merely deriving from the Constitution.
By disavowing natural law, contemporary jurisprudence is based on a different philosophical approach, that of positivism. To quote Prof Conor O’Mahony (2017), “After two decades of limited activity, during which time the Irish Supreme Court adopted a notably restrained and deferential posture in constitutional adjudication generally, a consensus was emerging among Irish constitutional scholars that the doctrine of unenumerated rights had had its day.”
Because of contemporary, positivistic jurisprudence, no court can be expected to recognise any fundamental rights as anterior to and not merely deriving from the Constitution in any challenge to the proposed legislation, as Mr Justice Keane suggests. Today, only the letter of the law counts. That means that the 36th Amendment will write into our Constitution the following Article 40.3: “Provision may be made by law for the regulation of termination of pregnancy.” That amendment, if passed, would ensure that no positive law could be challenged by the courts – unless there is a change in the philosophy that today governs our jurisprudence, which seems unlikely at present. – Yours, etc,
Rev D VINCENT
of Moral Theology,
Sir, – Jacqueline Burke (May 16th) wonders why adoption is not a more acceptable alternative to abortion, for women experiencing a crisis pregnancy. To place a child for adoption can indeed be a wonderful gift. But it is also an incredibly difficult, emotionally complex and life-changing act – when it is done voluntarily. To force it on a woman who is pregnant against her will is an act of absolute barbarity, and an intolerable burden to place on anyone’s shoulders.
Indeed, the Adoption Rights Alliance has released a position paper stating that it is “opposed in the strongest possible terms to the notion that adoption represents a viable alternative to abortion”. Like almost every organisation that works at the coalface of women and children’s rights, it is firmly in favour of repeal. – Yours, etc,
Sir, – As a churchwoman, I can speak and write fluent patriarchy, but it’s not my mother tongue. Patriarchy’s shadow side is misogyny, and church pontifications about women’s bodies and the ownership of their bodies, including their wombs and eggs, are I believe too often driven by an urge to keep control and authority over women.
What it boils down to is that in our country women must bear all conceptions to term under the threat of a 14-year prison sentence should they seek an abortion. That’s far more about control and punishment than acknowledging the autonomy of women.
The decision to carry a pregnancy to term – to enable the “potential” to become the “actual” is not one that can be forced upon women; it is for them to make the decision based upon their circumstances and their beliefs.
It is they who have the authority here, whether or not to offer the hospitality of their womb and the hospitality of their home, their commitment and energy for the following demanding 20-plus years of child-raising.
We may grieve the loss of the potential – but as a community and nation we simply cannot have punitive legislation against this. – Yours, etc,
Nenagh, Co Tipperary.
Sir, – Human beings are inherently caring and compassionate and that to me is what this referendum is all about – care and compassion in a private matter. It takes a certain kind of cruelty to force a person to stay pregnant against their will whatever the reason maybe. Is that really the society people are happy to continue living in? Because that is what a No vote will mean. – Yours, etc,
Sir, – While many women greet the news that they are pregnant with joy there is no doubt that for some such news is unwelcome for a host of reasons. A caring and progressive State would provide support for such women to enable them to safely deliver their babies. If for some reason they feel they cannot raise them thereafter, there are many Irish couples who would love to have the opportunity to do so. Surely it is not beyond the wit of the State to provide such support rather than the drastic solution of abortion. – Yours, etc,
Sir, – The No campaign repeatedly tells us that over 90 per cent of abortions involve “healthy women and healthy babies”, or are carried out for “social reasons”, referring to the grounds under which termination of pregnancy is permitted in the UK. What they fail to tell us is that these “social reasons” include the 12-year-old who has been raped, and the woman who had such severe depression after her last pregnancy that she fears for her life if she has to go through it again. They include the domestic violence victim whose husband refuses to use contraception, and the homeless woman with two children in temporary accommodation, and the teenager with intellectual disability who is discovered to be pregnant while in institutional care.
Once again, in attempting to reduce the debate to a soundbite or a slogan on a poster, any nuance is lost. It is impossible to discuss an issue of this complexity in catchphrases. Behind every one of these figures is a real woman or girl, with a real story, and very few of them make for easy listening. – Yours, etc,
Dr CLAIRE GLEESON,