As the three High Court judges retire to consider their decision in the latest Irish abortion law tragedy/farce, I’ve been thinking about the options open to them and their implications for the future. As I see it, there are four possibilities:
1. They could uphold the right to life of the “unborn”, thus compelling the woman to be kept on life support until the foetus can either be induced or dies itself. This is the family’s nightmare scenario. Probability of appeal: certain.
2. They could find the 8th amendment applicable to situations of this type generally, but exclude its applicability to this case on the basis of the overwhelming medical evidence that the foetus will not survive anyway. This would have implications for future fatal foetal abnormality cases; essentially it would vindicate the argument that no referendum is needed to allow for abortions in cases where the foetus’s condition is “incompatible with life”. However, the question would then arise of exactly how incompatible it must be, and who gets to decide and how. We would likely be looking at the FFA version of the Protection of Life During Pregnancy Act, for which there is likely to be just as much enthusiasm. Probably of appeal: fairly low, I would think.
3. They could find that the 8th amendment doesn’t apply at all, as it was strictly intended to prevent abortion. This argument was used in court by John Rogers SC, counsel for the women’s family, and is consistent with previous judgments such as Roche v Roche and O v Minister for Justice. Such a ruling would have implications for maternity care in Ireland, in particular the noxious National Consent Policy’s exclusion of pregnant women from the right of all other adults to autonomy in health care decisions, and the threatened use of court-ordered Caesarean sections. For this reason I would imagine the probability of an appeal would be fairly high.
4. Lastly, they could sidestep all the difficult issues above and simply rule that in all the circumstances of this particular case, it would create an injustice to force the woman to continue on life support. This is probably the best option for the family; there is virtually no chance of an appeal, and it would allow the Court to have regard to the woman’s own right to dignity rather than making that conditional on the prospects for foetal survival. Unfortunately, it would also mean that the underlying issues remain unsettled. And if there’s one thing that’s become increasingly apparent, from Savita to Ms Y to now, it’s that there really is no such thing as a “uniquely difficult” case. We are far from seeing the last “tragedy” of a woman whose pregnancy tests the 8th amendment in ways its supporters would have deemed too fanciful to rate as valid arguments against it.
The cowardice of most of our political parties to deal with this issue is something that simply can no longer be tolerated. And it is not simply the politicians who I am addressing that to. It’s time for us as voters to make this a red-line issue, to let our elected reps and candidates know that a preference from us depends on their support for repeal, and to stick to that pledge regardless of partisan or personal loyalty. Because if we vote back in another government that refuses to be the one to hold a referendum, every one who does so will be complicit in what’s been happening in that hospital since December 3rd.
Note: This post was written on an iPad Mini thousands of miles away from Ireland; please excuse lack of links and possible missed details.