The Eighth Amendment
Sir, – Fr John Joyce (“Abortion is barbaric whether carried out legally or not”, Rite & Reason, February 27th) rests his argument that abortion is always barbaric on the moral status of the foetus, which he considers a human being from conception. What he does not concede, however, is that this very question is contested; indeed, that is at the heart of the long-standing ethical dilemma about abortion. When one concedes this moral disagreement, then the nature of the question about the legal regulation of abortion must change from “How can law prevent moral injury to the foetus” to “How can the law best support ethical decision-making by pregnant people as moral agents?”
Rather than starting from the foetus, the moral status of which is contested, one might more usefully start with the pregnant person.
Nobody would disagree that a woman (or girl) is a human being; that she has a clear moral status; and that she holds the full range of human rights that flow from her humanity and are protected by law. Nor would anyone reasonably claim that a woman or girl becomes less human when she becomes pregnant. If this is so, then any proposition that, as a matter of constitutional law, a woman’s human rights should be diminished upon pregnancy (as is the case under the Eighth Amendment) becomes difficult to sustain. This becomes even more troubling if one recognises that by drastically restricting a pregnant person’s ability to exercise her full range of legally protected rights during pregnancy, the Constitution effectively “relieves” her of the burden of ethical decision-making about the maintenance of foetal life, replacing it with the physical, emotional, spiritual, mental, and life-long burden of maintaining pregnancy and giving birth.
In so doing, the Constitution purports to avoid an arguable moral wrong (abortion) with a certain moral wrong (abrogation of the will and diminishment of the rights of a pregnant person). However, where foetal life is maintained through voluntary and consensual pregnancy, both the arguable and certain moral wrongs are avoided. From the perspective of law, this can only be achieved by a legal arrangement that recognises that it is the pregnant person – ideally in an atmosphere of care, love, support, and deliberation with trusted friends and partners – who should make the decision about whether to continue with pregnancy and maintain foetal life.
For people for whom abortion is a morally and ethically difficult matter, then, the question for the referendum surely is not whether abortion is wrong per se, but whether law should support pregnant people in making ethical decisions about maintaining foetal life. These decisions will sometimes end in abortion, and, far more often, with the decision to continue with a pregnancy. However, if the Eighth Amendment is repealed, it is the woman and not the State that will make that decision.
Seen in this way it becomes clear that one who has an ethical objection to abortion can still support repeal of the Eighth Amendment. Indeed, many people who identify as pro-choice are also anti-abortion.
If we believe that we are, each of us, moral agents, then surely our collective responsibility is to support ethical decision-making by individuals. The way to do this – for all of us, however we identify in the debates about the rights and wrongs of abortion – is to repeal the Eighth Amendment and recognise pregnant women as moral agents. – Yours, etc,
Prof FIONA de LONDRAS,
Chair of Global
Deputy Head of School,
Birmingham Law School,
University of Birmingham,
Sir, – Ciara Browne (March 1st) “patriotically proposes ... to establish abortion services, based on the deliberations of an Irish forum, such as the Citizens’ Assembly ... and implemented by Irish lawmakers in the Oireachtas”.
I thank her for clarifying something that has been troubling me about the Citizens’ Assembly concept. So the task of our elected representatives is to pay a polling company to select, by a secret process, an anonymous group of citizens to deliberate on what laws might be desirable or necessary, and then, having sold the results of those deliberations to the electorate, to legislate them into effect. Why, then, have an Oireachtas at all? Why have a republic? – Yours, etc,