Late stage abortions *MOD WARNING POST #3*

Cody Pomeray

The X Case establishes the constitutional position that a termination is permissible when there is a substantial risk to the life of the mother which can only be avoided by way of a termination.

Public figures like the Archbishop of Dublin have expressed concerns about the possibility of terminating viable (say, for argument's sake, 39 week old) babies who, in a matter of days, might otherwise be delivered as live babies.

With regard to the Constitution, do posters agree that, although such an eventuality would be extremely unlikely to arise, there is not only a 'loophole' in the law permitting late stage pregnancies, but that this 'loophole' cannot be corrected except by way of a Constitutional amendment. It seems there cannot, in law, be a cut-off point.

I use the word loophole in inverted commas because although I take the position that a late stage abortion (at viability) is morally repulsive, I appreciate that not everybody would share that position.

Anyway, do people agree that this issue arises, in theory, as a consequence of Irish constitutional law?

LowKeyReturn

I couldn't fault your interpretation of the law as it stands - and thanks for the corrections. That said I still find your proposition odd. That aside as this is a different question - it a foetus is viable surely it would simply be delivered by c-section.

Late term abortion is not clearly defined but some but it at after 16 weeks, some at 20. I can't imagine a late term abortion (IDX, D&X partial birth what ever you want to call it) would take place near viability.

Dandelion6

Cody Pomeray wrote: »

Anyway, do people agree that this issue arises, in theory, as a consequence of Irish constitutional law?

In theory, yes. The Supreme Court's interpretation of 40.3.3 had no limitation as to stage of the pregnancy, and the Oireachtas cannot impose one and thereby exclude certain women from the reach of the X decision.

In practice, probably not. It's extremely unlikely any situation would arise, in a late-term (post-viability) pregnancy, where the only way the threat to the woman's life could be averted was through abortion rather than through early delivery.

That said, if there was such a situation and the choice really was between the life of the woman and the life of a late-term foetus, I don't see why the woman's life shouldn't still be given priority.

hullaballoo

I'm disinclined to allow an abortion debate to take place here. However, there are obvious legal issues that are relevant to the forum.

The compromise, therefore, is that whilst discussion of the legal aspects will be allowed, any commentary on the morality issues will be deleted and the user banned.

schemingbohemia

This is just a smoke screen. The legal position is that no time limit is in place but in all real-world scenarios no late/third trimester terminations would take place, a simple c-section would happen.

GerardKeating

Cody Pomeray wrote: »

The X Case establishes the constitutional position that a termination is permissible when there is a substantial risk to the life of the mother which can only be avoided by way of a termination.

I would argue that no such loop hole exists, since abortion is not the only option, a c-section would also be an option, which would close any theoricital loop-hole.

Cody Pomeray

Dandelion6 wrote: »

That said, if there was such a situation and the choice really was between the life of the woman and the life of a late-term foetus, I don't see why the woman's life shouldn't still be given priority.

Because in the case of the (hypothetical) 39 week old foetus, there is an avoidable alternative. Unavoidability was one of the tests put down by Finaly CJ in the delivery of his Supreme Court judgement on X. ("I, therefore, conclude that the proper test to be applied is that if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible")

The problem is that there does not seem to way of compelling the mother to deliver the foetus as a live child instead of as a dead foetus.

The medical and social care team may influence and prevail upon the mother to deliver and adopt the newborn, but if she is bound to detroy her own life as a consequence of delivering a live baby at all, then the options are difficult. It is not for the medical team to be faced with such a constitutional crisis. Can they forcibly compel this woman to deliver a live baby at 39 weeks, 35 weeks, 30 weeks? After all, my 39 week hypothesis is only illustrative. I would have a difficulty with any foetus (usually >24 weeks), who is viable as a single entitiy, being aborted. I believe a lot of people would, but unfortunately, we cannot get into the ethics issue on this thread.

I believe there is a serious lack of clarity in relation to viable pregnancies which needs to be addressed, and which can only be addressed by a Constitutional Referendum.

Cody Pomeray

GerardKeating wrote: »

I would argue that no such loop hole exists, since abortion is not the only option, a c-section would also be an option, which would close any theoricital loop-hole.

I think there is a strong argument that the loophole does not exist, unfortunately it is hard to come down on either side. Ultimately, I would say the loophole does exist, but not with certainty.

What we can all probably agree on is that the situation for viable foetuses is perilously unclear.

ResearchWill

schemingbohemia wrote: »

This is just a smoke screen. The legal position is that no time limit is in place but in all real-world scenarios no late/third trimester terminations would take place, a simple c-section would happen.

I totally agree, the x case was faced with a mother and child neither of whom could survive. If a foetus is viable outside the womb then either induction or c section and both can survive. The only way an abortion would be allowed under X is if it was the only viable option to save the mothers life.

Cody Pomeray

ResearchWill wrote: »

I totally agree, the x case was faced with a mother and child neither of whom could survive. If a foetus is viable outside the womb then either induction or c section and both can survive. The only way an abortion would be allowed under X is if it was the only viable option to save the mothers life.

Do you believe it is legally permissible to induce a mother without her consent, and to remove her baby without her consent? I don't believe so.

It is not necessarily the pregnancy itself, it being an unremarkable state of being in itself, which inspires a woman's suicidal thought. Rather it is the prospect of the consequences of pregnancy - i.e., motherhood - which motivates her self destruction. After all, X was unwilling to adopt her baby, yet could not face the prospect of having the child.

ResearchWill

Cody Pomeray wrote: »

Do you believe it is legally permissible to induce a mother without her consent, and to remove her baby without her consent? I don't believe so.

It is not necessarily the pregnancy itself, it being an unremarkable state of being in itself, which inspires a woman's suicidal thought. Rather it is the prospect of the consequences of pregnancy - i.e., motherhood - which motivates her self destruction. After all, X was unwilling to adopt her baby, yet could not face the prospect of having the child.

The SC may well decide in such a situation )that is a viable fetous that can at that time survive outside the womb) to allow a delivery unless it can be show such delivery is a risk to the life of the mother.

My reading of the X case leads me to the above view. If there is anything in the X case you believe says otherwise please point it out.

seb65

I'm not sure why people keep bringing up a c-section as if its a panacea for late-term, yet necessary to save the life of the mother, abortions. A c-section is a seriously invasive procedure. A woman's ab muscles are sliced through and opened up. A woman suffering during late-term, a life-threatening illness would, I imagine, be quite ill and it is perhaps unlikely that doctor's would think it best to expose her to surgery and possible infection.

While I don't think any woman would carry a baby to viability and then threaten suicide in order to get a termination, there is the possibility that this could happen under the new legislation. If such an abortion was certified by the required physician, an abortion would have to be performed. In that situation, a c-section could be medically possible. However, first, it is unlikely that a "suicidal" woman would consent to a c-sction/induced delivery at that time; and second, can you imagine the unnecessary suffering such a premature baby would undergo? It could have serious health effects for the rest of its life. For these reasons, the proposed legislation appears controversial.

Last, I think that for cases of viability and a threat to life of the pregnant woman due to a physical health aliment (i.e. car accident, viral infection) it may be a matter of doctor's saving the life of the mother as a priority - not aborting the fetus, but not endangering the mother's life any further to save it. For most women who are late-term and suffer a physical illness, I doubt they would be seeking an abortion, but rather, early delivery as a necessity.

Dandelion6

Cody Pomeray wrote: »

Because in the case of the (hypothetical) 39 week old foetus, there is an avoidable alternative.

Except that I specifically referred to those (hypothetical) cases where there wasn't an alternative: either the woman dies or the foetus does. I won't say any more about those hypothetical cases since we're not allowed to here, but the point is they are so unlikely to arise that the legal "loophole" you refer to really isn't an issue at all: in probably 100% of situations where a late term pregnancy threatens a woman's life, there will be an alternative (induced vaginal birth or c-section) and therefore X won't apply. I really don't see where you think the problem is.

drkpower

Cody Pomeray wrote: »

Because in the case of the (hypothetical) 39 week old foetus, there is an avoidable alternative. Unavoidability was one of the tests put down by Finaly CJ in the delivery of his Supreme Court judgement on X. ("I, therefore, conclude that the proper test to be applied is that if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible")

The problem is that there does not seem to way of compelling the mother to deliver the foetus as a live child instead of as a dead foetus.

The medical and social care team may influence and prevail upon the mother to deliver and adopt the newborn, but if she is bound to detroy her own life as a consequence of delivering a live baby at all, then the options are difficult. It is not for the medical team to be faced with such a constitutional crisis. Can they forcibly compel this woman to deliver a live baby at 39 weeks, 35 weeks, 30 weeks? After all, my 39 week hypothesis is only illustrative. I would have a difficulty with any foetus (usually >24 weeks), who is viable as a single entitiy, being aborted. I believe a lot of people would, but unfortunately, we cannot get into the ethics issue on this thread.

I believe there is a serious lack of clarity in relation to viable pregnancies which needs to be addressed, and which can only be addressed by a Constitutional Referendum.

The SC speak about 'termination of the pregnancy'; I haven't read the case in full in a while but nowhere in there - nor in A. 40.3.3 - is there a suggestion that termination of the pregnancy necessarily means termination of the foetus, particularly where the foetus is fully viable and can be delivered in a viable state. So, I don't think the loophole you have identified exists. The only right the SC identified in X was the right to terminate a pregnancy, not to terminate the foetus (of course, at earlier stages of pregnancy, one necessarily follows the other, but the same cannot be said for later stages of pregnancy).

The second linked point you raise relates to a situation where the mother refuses to permit a Caesarean section to deliver the viable foetus (on the grounds that the foetus living will represent a threat to her life by way of suicide risk). Well, the first point is that even if that refusal is permitted, the foetus will deliver eventually; she cannot stop it. The second point is if that refusal poses a serious risk to the life to the unborn, there is a very strong argument that a court would order a forcible Caesarean section. Back in march of this year, the high court was faced with a case where a woman was refusing a caesarean (not for suicidality reasons, mind you) which posed an imminent threat to the foetal life. Thankfully, she ultimately consented but before she did, judge hesitant seemed to indicate that he was disposed towards granting the order. Now the circumstances are different to the hypothetical you have raised, but it shows that the concept of a forcible caesarean in the context of an imminent threat to foetal life is very much a possibility.

seb65

drkpower wrote: »

The second point is if that refusal poses a serious risk to the life to the unborn, there is a very strong argument that a court would order a forcible Caesarean section. Back in march of this year, the high court was faced with a case where a woman was refusing a caesarean (not for suicidality reasons, mind you) which posed an imminent threat to the foetal life. Thankfully, she ultimately consented but before she did, judge hesitant seemed to indicate that he was disposed towards granting the order. Now the circumstances are different to the hypothetical you have raised, but it shows that the concept of a forcible caesarean in the context of an imminent threat to foetal life is very much a possibility.

A forcible caesarean at the first point of viability will have lifelong implications for the unborn child. The court would have to consider this in its judgment. Not to mention the trauma suffered by a suicidal woman who is forced to undergo a caesarean section. Such a situation may lead to a suicidal pregnant woman being locked up by the courts until she delivers to prevent harm to herself and the fetus. A potential legal minefield in many respects.