"Hard cases make bad law" is a truism based on tragic experience. The campaign to repeal the Eighth Amendment to the Constitution is based, it seems to me, on the emotional response to the very real suffering of some mothers with unwanted pregnancies. Given our own long history of suffering, we in Ireland are perhaps particularly susceptible to an appeal to the emotions.
This is all the more reason for us to be on our guard, lest, as the French put it, our hearts lead us astray.
Human life and dignity
There is no equality of emotional appeal between the frightened pregnant woman we can see and the incipient life in the womb that we cannot see.
Advocates of abortion try to cloud the issue by refusing to recognise incipient human life as that – namely fully human, and so with a right to life and to all the conditions necessary for human flourishing.
They will use technical terms which describe various stages of incipient life (zygote, conceptus, foetus, embryo) – or, preferably, non-technical, broad, and misleading terms such as a collection of cells – to detract from the reality that the miracle of a new human being has come into existence, a boy or girl whose unique genetic identity or DNA can be found from the first moment of conception.
The Constitution as it now stands recognises the principle of the equality of the unborn child together with that of the mother, and so it sets limits to what our legislators might do, acting either with the highest of motives or under strong public pressure, that would in fact deny this equality of respect before the law, whose most basic expression of which is the right to life.
Even when those campaigning to change the Irish Constitution as it now stands accept that incipient life must be respected, they will qualify this by saying, yes, that is so generally speaking, and so allowance should be made for the exceptional case, as in the case of the unborn with severe disabilities who have little or no expectancy of life after birth.
But once the principle that innocent life can be killed in exceptional situations is allowed, which those campaigning to change the Constitution would in effect sanction, then abortion on demand is the inevitable result, as happened in Britain with the highly restrictive 1967 Abortion Act.
This was pointed out recently in The Irish Times by the internationally respected expert on constitutional law, Dr Gerry Whyte of Trinity College Dublin.
There are philosophers and ethicists who deny objective morality and so reduce morality to subjectivity, in a word to our actions in the face of stronger or weaker emotional states arising from one’s own unique situation.
One of these ethicists addressed the Citizens' Assembly at the outset of its deliberations, Dr Mark Sheehan, who is an Oxford research fellow.
He reduces morality to “reason-giving”, ie giving reasons to justify one’s decision to act in a particular situation one is facing, having considered and calculated the reasons for and against.
These “reasons”, as in the case of euthanasia which he gives as an example to illustrate his theory, are not reasons but rationalisations based on emotional responses. And so he could justify euthanasia on the basis of foreseen suffering.
In effect, he says we must respect the choices others make, if they have strong enough emotional reasons to so act.
He is, in other words, “pro choice”: the essence of whose moral stance is that the (highly emotionally charged) end justifies the means. And that is the reversal of one of the major principles of morality since the dawn of time.
Nowhere in his paper does he even touch on the possibility that there are actions that are always wrong and so admit of no exceptions – such as perjury, paedophilia, the direct killing of the innocent, including the unborn.
Such intrinsically immoral actions can never be the means used to achieve a good end.
They are grave issues of objective morality, unlike the relatively trivial (though real) ethical issues analysed in detail by Dr Sheehan on which his theory is based.
More significantly, he totally ignores the question as to what is the origin of our obligations, what actions are right or wrong in themselves, irrespective of the circumstances.
In other words, he ignores the existence of objective morality, namely those moral imperatives that are written into the fabric of our being, which the wisdom traditions of humanity has always recognised, and which were confirmed by God in the Ten Commandments. Thou shalt not kill.
And it is this same objective morality that determines above all the basic principles of all positive law based on the equal dignity of every human being.
The removal of the protection of incipient human life from the Constitution would render less certain than is the present legal situation that all human persons, whether born or not yet born, are entitled to the benefit of the fundamental legal principle of equality in protection of law.
Fr D. Vincent Twomey, SVD, is Professor Emeritus of Moral Theology, at Maynooth. This piece is based on his submission to the Citizens' Assembly