The Eighth Amendment
Sir, – In their letter of April 23rd a group of English-based lawyers argues that the “health ground” under the UK’s 1967 Abortion Act sets a much lower threshold for legal abortion than that set by the health ground under the Irish Government’s General Scheme for abortion legislation. The group points out that the Irish health ground, which applies from 12 to 23 weeks of pregnancy, permits abortion where there is a “risk” of “serious harm to the health” of the mother. The UK’s health ground requires that continuation of pregnancy would be riskier than an abortion, a test almost always met according to the group because abortion “is invariably less risky than continuing a pregnancy to term”. So from 12 to 23 weeks Irish law will be vastly more restrictive as regards access to abortion than UK law.
Their argument fails. They fail to properly acknowledge that in both jurisdictions the health ground includes mental health. And they completely omit to acknowledge that while the vast majority of abortions in the UK take place on health grounds (97 per cent), almost all of these (99.8 per cent) take place on the grounds of mental, not physical, health. In terms of mental health, it is simply not true that abortion “is invariably less risky than continuing a pregnancy to term”. A consensus of relevant peer-reviewed research suggests the very opposite. Abortions that take place on the mental health ground in the UK are doing so without the support of empirical data. Their only support is the insistence of the pregnant mother herself. And yet abortion requests for mental health reasons are invariably granted. And that is the point. When legislated for, abortion on mental health grounds ultimately amounts to a self-ratifying process. The law concedes (erroneously) that abortion autonomy is linked to good mental health. On this view it follows that if a person believes that their mental health will be or may be seriously harmed by not choosing an abortion then almost by definition their mental health is at risk. Test satisfied.
When absolute individual autonomy is so closely indexed to good mental health, peer-reviewed studies, which are necessarily general in focus, become irrelevant. Doctors have no basis for standing in the way of a right to abortion. For these and related reasons the UK’s mental health ground amounts to abortion on demand. Doctors literally pre-sign the relevant forms. There is no good reason to think that the Irish situation will be much different. Our General Scheme has made no effort even to require a “real and substantial” risk to mental health to justify an abortion. A mere risk suffices. And an abortion does not have to be “necessary” to avert the risk. It only has to be “appropriate”. So unless the Eighth Amendment is retained largely unrestricted abortion up to 23 or 24 weeks will follow. – Yours, etc,
Dr THOMAS FINEGAN,
Lecturer in Theology,
Mary Immaculate College,
Sir, – Prof William Binchy (April 26th) says that in his view most Irish Times readers would assume that foeticide of “seriously disabled babies” would be unlawful under the proposed new law. Your readers can be reassured. It is. Unlike in England, where abortion is lawful without time limit if two doctors certify “that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped” (s. 1(d), Abortion Act 1967), the proposed Irish law does not allow for abortion on the grounds of disability.
However, the proposed new law does allow for a pregnancy to be brought to an end where two doctors, one of whom is an obstetrician (incidentally, a level of senior oversight not required by the Abortion Act 1967), certify that that “there is present a condition affecting the foetus that is likely to lead to the death of the foetus either before birth or shortly after birth” (Head 6 of the General Scheme).
It is a pity that in his letter Prof Binchy chose to include a quote from a medic who appeared before the Joint Oireachtas Committee, but not the proposed wording of the law or, indeed, the legal standard in England from which he seems to be arguing by analogy. Placed side-by-side as they are above it is easy to see the vast difference between them.
Situations of fatal foetal anomaly are difficult, and they are more common than we might like to think. They are the stories of individual women and families doing the best they can in horrible circumstances. Might there be cases where such a diagnosis has been received and when people decide to continue with their pregnancy? Of course. Will some people decide to have an induced early live birth? Certainly. And will some decide that the right thing for them is to bring foetal life to an end in utero (what is medically described as “foeticide”), followed by an induction and the delivery of a stillborn baby? Yes.
At a fundamental level, what someone decides to do in these unenviable circumstances is an expression of their parental love for their child; a judgment about what is right for that child, for their other children in many cases, and for themselves. In the ordinary course of events we recognise that, as far as possible, parents should be able to make decisions, with appropriate medical advice and support, about the right course of treatment if their children become fatally ill. The law should step in only when absolutely necessary. This is not least because we know that in making such decisions they act out of love and care for their children and their dignity. – Yours, etc,
Prof FIONA de LONDRAS,
Birmingham Law School,
University of Birmingham,
Sir, – Some take issue with the fact that the proposed access to abortion up to 12 weeks is labelled “unrestricted”. It’s important that we acknowledge what the phrase means in this context. One would have to have a very low opinion of women to think they would request a termination for no reason whatsoever. There are always reasons. Unrestricted simply means that we acknowledge that these reasons are personal, private, and unique to each pregnancy. A Yes vote on May 25th means that we finally start treating women like adults capable of making informed decisions. – Yours, etc,