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Abortion Discussion
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The unborn is the only patient here, as the mother has already been declared dead. Realistically, the unborn's situation is "not compatible with life" unfortunately. Only 17 weeks, and inside a putrefying body.Peregrinus wrote: »Actually the law on this is fairly well established. Life support is regularly withdrawn in cases like this; nobody heads off to the High Court either to find out whether this is permissible or to challenge it because they disagree with the decision. There's only an issue in this case because the patient is pregnant.
So rather than let it sicken and die slowly, the life support should be turned off. IMO the recent abortion legislation is irrelevant, because it only deals with a situation in which there are conflicting rights to life between the unborn and the mother.
This unborn should be seen as a terminally ill patient in its own right, being artificially kept alive in a stressful, unnatural and probably damaging environment, just for an extra week or two of life. There should be no legal impediment to switching off, any more than there would be for an adult in an equivalent situation.
Anyway there would be zero chance that the DPP would prosecute anyone in this case. I know people like to cover their ass, but the hospital is going OTT with the whole legal thing.0 -
The unborn is the only patient here, as the mother has already been declared dead. Realistically, the unborn's situation is "not compatible with life" unfortunately. Only 17 weeks, and inside a putrefying body.
So rather than let it sicken and die slowly, the life support should be turned off. IMO the recent abortion legislation is irrelevant, because it only deals with a situation in which there are conflicting rights to life between the unborn and the mother.
This unborn should be seen as a terminally ill patient in its own right, being artificially kept alive in a stressful, unnatural and probably damaging environment, just for an extra week or two of life. There should be no legal impediment to switching off, any more than there would be for an adult in an equivalent situation.
But if that is the ruling, then termination for FFA is available immediately. Do you mean no-one noticed that this was possible with our constitution until now?
What if Iona or some of the pro-life people took them to court though? Why should they risk their asses, as you put it, just doing their job properly? Most people only risk jail when they do their job badly!Anyway there would be zero chance that the DPP would prosecute anyone in this case. I know people like to cover their ass, but the hospital is going OTT with the whole legal thing.0 -
The reason it's before the High Court now is because the foetus has a right to life; it doesn't actually have a fatal abnormality so it is not definitely going to die if it receives the required medical attention, which includes keeping it's dead mother (sort of) animate. I suspect the High Court will have a hard time overruling the explicit requirement to protect the unborns right to life even in the face of the probability of its' death regardless of any action taken, so this will likely end up in the Supreme Court one way or another.But if that is the ruling, then termination for FFA is available immediately. Do you mean no-one noticed that this was possible with our constitution until now?
They would have to have something to take them to court for. But the reason this is before the High Court now, with HSE appointed counsel all round, is to ensure that the medical decisions made are legally sanctioned.What if Iona or some of the pro-life people took them to court though? Why should they risk their asses, as you put it, just doing their job properly? Most people only risk jail when they do their job badly!
On the face of it, the legal right of the unborn seems paramount, but if there is medical testimony that it actually cannot live, it's hard to see why it shouldn't be treated just as an adult would be in the same circumstances. Does the Amendment in this situation effectively confer a greater right to life on the unborn than the born has?0 -
The reason it's before the High Court now is because the foetus has a right to life; it doesn't actually have a fatal abnormality so it is not definitely going to die if it receives the required medical attention, which includes keeping it's dead mother (sort of) animate. I suspect the High Court will have a hard time overruling the explicit requirement to protect the unborns right to life even in the face of the probability of its' death regardless of any action taken, so this will likely end up in the Supreme Court one way or another.
They would have to have something to take them to court for. But the reason this is before the High Court now, with HSE appointed counsel all round, is to ensure that the medical decisions made are legally sanctioned.
On the face of it, the legal right of the unborn seems paramount, but if there is medical testimony that it actually cannot live, it's hard to see why it shouldn't be treated just as an adult would be in the same circumstances. Does the Amendment in this situation effectively confer a greater right to life on the unborn than the born has?
You ve said exactly the same as I have (why?) except for one point : where does the law say that the unborn inside a dead woman on life support may be treated differently to one inside a living one? So even where the unborn is incompatible with life, it cannot be destroyed but must - like the born - be allowed to die its own death.
So I can't see how the fact that the environment in which it lives is likely to kill it allows the court to take active steps to hasten that death. Like switching off life support for example.0 -
Well, I was pointing out that there is no ruling that will allow for termination in the case of FFA immediately; nor is the High Court in a position to make one.You ve said exactly the same as I have (why?) except for one point : where does the law say that the unborn inside a dead woman on life support may be treated differently to one inside a living one? So even where the unborn is incompatible with life, it cannot be destroyed but must - like the born - be allowed to die its own death.
The law (as far as I can tell) makes no distinction between living foetuses inside a living or dead mother, which means that unlike a born person, it seems a guardian is not in a position to choose to remove life support.
Nor do I, which is why I think it will end in the Supreme Court. If it does (before the foetus dies), it will be interesting to see if there are medical opinions that believe the foetus can be gestated to the point where delivery is viable; so far it seems no one has said that it can't be, only that it probably won't be.So I can't see how the fact that the environment in which it lives is likely to kill it allows the court to take active steps to hasten that death. Like switching off life support for example.0 -
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Well, I was pointing out that there is no ruling that will allow for termination in the case of FFA immediately; nor is the High Court in a position to make one.
The law (as far as I can tell) makes no distinction between living foetuses inside a living or dead mother, which means that unlike a born person, it seems a guardian is not in a position to choose to remove life support.
Nor do I, which is why I think it will end in the Supreme Court. If it does (before the foetus dies), it will be interesting to see if there are medical opinions that believe the foetus can be gestated to the point where delivery is viable; so far it seems no one has said that it can't be, only that it probably won't be.
You've got this but wrong (in bold) - the problem isn't one of guardians, it is quite simply that the fetus is not the one who is dead.
So according to the constitution, since it is no longer a threat to the deceased woman, it is difficult to see what proviso would allow its life to be ended merely because we are certain it will die soon.
If the court find some clever reinterpretation around the death of the woman removing the right to life of the fetus for example, they will have chosen the cowardly way out, ie one that gets them out of the fix for this time only. The real problem is the 8th amendment, a poorly drafted clause, for which exactly this sort of problem was predicted even before it was passed. Binchy and the rest denied it, but they were wrong then and they're wrong now, pretending it's not about the 8th. It's entirely about the 8th.0 -
What if Iona or some of the pro-life people took them to court though? Why should they risk their asses, as you put it, just doing their job properly? Most people only risk jail when they do their job badly!
Re this, it's probable that the DPP would take over any case put up by Iona for the public good and then offer a Nolle Prosequi on the day in court, just to scupper what would be a vexatious case.
The 8th amendment was made to define in law the circumstances under which abortion would be circumscribed in the republic, re respect for both the mother and the unborn. If there is no argument to be made for one as against the other, as in this case (as recognized by the claim of the counsel for the unborn in this case that the 8th amendment offers no protection to the woman as she is dead) then the 8th amendment and it's content should be seen as irrelevant to the case, as the amendment is about both the woman and the unborn.0 -
aloyisious wrote: »The 8th amendment was made to define in law the circumstances under which abortion would be circumscribed in the republic, re respect for both the mother and the unborn. If there is no argument to be made for one as against the other, as in this case (as recognized by the claim of the counsel for the unborn in this case that the 8th amendment offers no protection to the woman as she is dead) then the 8th amendment and it's content should be seen as irrelevant to the case, as the amendment is about both the woman and the unborn.
It's not unlikely the court will rule on these lines, and clearly there's a broad range of opinion that would prefer this (for not entirely consistent reasons). But to say "8th amendment is about abortion, this isn't an abortion case, so no problems there" is very broad strokes indeed. 8th amendment's text doesn't even mention abortion, or anything unambiguously equivalent. We're perilously close to "original intent" territory here, which for me is always very murky. And let's not forget that said "intent" includes expressly rejecting a weaker wording that did explicitly mention abortion. For a court to make a silk purse out of this particular sow's ear is pretty much to expect judicial rule by decree according to after the fact populist expectations.0 -
So according to the constitution, since it is no longer a threat to the deceased woman, it is difficult to see what proviso would allow its life to be ended merely because we are certain it will die soon.
If the court find some clever reinterpretation around the death of the woman removing the right to life of the fetus for example, they will have chosen the cowardly way out, ie one that gets them out of the fix for this time only.
I think we're all expecting "reinterpretation", though the (strictly proverbial) jury is very much out on the "clever" part.
I wouldn't be surprised if what we get is essentially some logic-torturing in and around the areas of negative vs positive rights, what the constitution says as to what it'll definitively "respect", vs only possibly "defend and vindicate", and the whole general expectation of culturally Catholic expectations of "natural" life and death -- doubtless triple-filtered through enough tortuous legalese to give some sort of deniability.
However, if the case appears to turn on medical arguments as to how many further weeks of life the foetus has prospect of, or the probability of actual viability to birth, it's difficult to see how that doesn't have knock-on implications for cases of fatal foetal abnormality.0 -
I think you just took it up wrong. I'm not saying the problem is one of guardians, I'm saying it is peculiar that in the case of a born person in these circumstances, another person could be empowered to decide to turn their life support of, but that in the case of an unborn person this does not seem to be the case.You've got this but wrong (in bold) - the problem isn't one of guardians, it is quite simply that the fetus is not the one who is dead.
I think the tricky part is likely to come down to whether anyone whose opinion is expert thinks the foetusis certain to die soon; so far the experts have only said it is very probable that it will not survive.So according to the constitution, since it is no longer a threat to the deceased woman, it is difficult to see what proviso would allow its life to be ended merely because we are certain it will die soon.
I don't think the court is likely to be in a position to do that, and I suspect the decision will not be based around the 8th either; it will be based around the viability of the life under discussion. It was put to me today that the equivalence proposed with a born person so far is unequal; if a born person were on life support and unlikely to recover, but still had a chance of a full recovery, however small, then a family member/guardian/whatever would not be offered the option of terminating life support at all, the medical team would be obliged to continue their best efforts on behalf of the patient. That was the opinion of a barrister rather than a doctor, so it would be interesting to hear a doctors views on it.If the court find some clever reinterpretation around the death of the woman removing the right to life of the fetus for example, they will have chosen the cowardly way out, ie one that gets them out of the fix for this time only. The real problem is the 8th amendment, a poorly drafted clause, for which exactly this sort of problem was predicted even before it was passed. Binchy and the rest denied it, but they were wrong then and they're wrong now, pretending it's not about the 8th. It's entirely about the 8th.0 -
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I think you just took it up wrong. I'm not saying the problem is one of guardians, I'm saying it is peculiar that in the case of a born person in these circumstances, another person could be empowered to decide to turn their life support of, but that in the case of an unborn person this does not seem to be the case.
I think the tricky part is likely to come down to whether anyone whose opinion is expert thinks the foetusis certain to die soon; so far the experts have only said it is very probable that it will not survive.
I don't think the court is likely to be in a position to do that, and I suspect the decision will not be based around the 8th either; it will be based around the viability of the life under discussion. It was put to me today that the equivalence proposed with a born person so far is unequal; if a born person were on life support and unlikely to recover, but still had a chance of a full recovery, however small, then a family member/guardian/whatever would not be offered the option of terminating life support at all, the medical team would be obliged to continue their best efforts on behalf of the patient. That was the opinion of a barrister rather than a doctor, so it would be interesting to hear a doctors views on it.
Well maybe it's my fault for being too brief for you to follow : this was what I was saying when I said that the problem was that the fetus was not dead, and therefore the issue of who should be empowered to decide to turn off life support was irrelevant.
And if course it was a barrister - that is the problem caused by the 8th amendment : what should be medical decisions are secondary to an artificial legal constraint was added for purely ideological reasons.0 -
+1alaimacerc wrote: »I think we're all expecting "reinterpretation", though the (strictly proverbial) jury is very much out on the "clever" part.
I wouldn't be surprised if what we get is essentially some logic-torturing in and around the areas of negative vs positive rights, what the constitution says as to what it'll definitively "respect", vs only possibly "defend and vindicate", and the whole general expectation of culturally Catholic expectations of "natural" life and death -- doubtless triple-filtered through enough tortuous legalese to give some sort of deniability.
However, if the case appears to turn on medical arguments as to how many further weeks of life the foetus has prospect of, or the probability of actual viability to birth, it's difficult to see how that doesn't have knock-on implications for cases of fatal foetal abnormality.
That is exactly what I'm afraid of - a fudge that will "solve" the problem for this family while covering up the real source of the disaster, which will discredit the constitution and the courts, but more importantly lead to another disaster sooner or later, when a different set of circumstances occurs. As they inevitably will : no law can predict and micromanage all medical cases.0 -
+1
That is exactly what I'm afraid of - a fudge that will "solve" the problem for this family while covering up the real source of the disaster, which will discredit the constitution and the courts, but more importantly lead to another disaster sooner or later, when a different set of circumstances occurs. As they inevitably will : no law can predict and micromanage all medical cases.
And no doubt those like Binchy, Casey and others will maintain that, like the X case, this doesn't affect the eighth amendment and it still protects Irish women and foeti and doesn't need any further tinkering with whatsoever. I recall people like Peter Mathews claim during the PofLDP Bill that the X case circumstances were unique to the case and shouldn't be legislated on in any wider sense.
I think this will be appealed to the SC and soon we will see a devastated couple or woman taking a case on the grounds of FFA and the Government will keep the head down and hope it all goes away or some other body like Europe or the UN can be blamed for why it eventually has to stop pretending we don't have abortion in Ireland.
Meanwhile there are two born children who's mother is rotting away in a hospital and who's father has no say in what happens to her.0 -
Appealed to the SC by who? If the high court says the machines stay on there is likely to be an appeal to the SC, but do most not think that is unlikely? If I goes the way it seems most likely to there is no one to appeal. From what has been reported even counsel for the foetus seems to accept it is hopeless. That said, apparently the SC is on standby...And no doubt those like Binchy, Casey and others will maintain that, like the X case, this doesn't affect the eighth amendment and it still protects Irish women and foeti and doesn't need any further tinkering with whatsoever. I recall people like Peter Mathews claim during the PofLDP Bill that the X case circumstances were unique to the case and shouldn't be legislated on in any wider sense.
I think this will be appealed to the SC and soon we will see a devastated couple or woman taking a case on the grounds of FFA and the Government will keep the head down and hope it all goes away or some other body like Europe or the UN can be blamed for why it eventually has to stop pretending we don't have abortion in Ireland.
Meanwhile there are two born children who's mother is rotting away in a hospital and who's father has no say in what happens to her.
EDIT: They can switch it off... No mention about leave to appeal.
MrP0 -
Appealed to the SC by who? If the high court says the machines stay on there is likely to be an appeal to the SC, but do most not think that is unlikely? If I goes the way it seems most likely to there is no one to appeal. From what has been reported even counsel for the foetus seems to accept it is hopeless. That said, apparently the SC is on standby...
MrP
Council for the foetus I would think and possibly the state for the purposes of legal.clarity.0 -
"THE HIGH COURT has ruled that the life support for a clinically dead pregnant woman can be withdrawn – at the discretion of her medical team.
The judgement was handed down by Justice Nicholas Kearns at noon today.
The court had been asked by the HSE to issue a declaration that discontinuing treatment for the woman would be lawful.
Justice Kearns said that the court “is satisfied, in the circumstances of this case, that in the best interest of the unborn child, it should authorise at the discretion of the medical team the withdrawal of ongoing somatic support being provided… in this tragic and unfortunate case”.
“It will accordingly make a declaration and order to that effect.”0 -
Just read there will be no appeal. This case may have implications for cases of fatal foetal abnormalities.0
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A fairly carefully worded judgement, with appropriate reference to the requirements of 40.3.3. and 40.3.1, without giving overly undue consideration to a limited application of the 8th. Kearns said "in the circumstances of this case, that in the best interest of the unborn child" which leaves plenty of scope for different judgements in other cases. It seems to be as good a judgement as could be rendered in the circumstances, though leaving the withdrawal of care at the discretion of the medical team is an interesting choice; it would seem to indicate that a direction of the Court ought not to be required in future cases, as in this instance they placed the decision firmly in the medical team's (not the family's) hands.0
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Have you got a copy of the judgement?A fairly carefully worded judgement, and with no reference to the 8th. Kearns said "in the circumstances of this case, that in the best interest of the unborn child" which leaves plenty of scope for different judgements in other cases. It seems to be as good a judgement as could be rendered in the circumstances, though leaving the withdrawal of care at the discretion of the medical team is an interesting choice; it would seem to indicate that a direction of the Court ought not to be required in future cases, as in this instance they placed the decision firmly in the medical team's (not the family's) hands.
MrP0 -
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Of course, much of the commentary doesn't bother with the "filtering" part. In for example this article (warning: rank systematic failure to apply categorical imperative, from the beginning and throughout) we get the dual threat of Vinny Twomey and Cora Sherlock engaging in a spectacular amount of handwaving as to the mere legal niceties involved in getting to the "correct" Catholic answer. Thus we get: "prudential decision", "extraordinary are not obligatory" (obviously detention, criminal sanctions and force-feeding are "ordinary" means in the context of pregnancy, then), and criticism of "simplistic" (!) thinking. Not about the 8th Because Reasons.alaimacerc wrote: »I wouldn't be surprised if what we get is essentially some logic-torturing in and around the areas of negative vs positive rights, what the constitution says as to what it'll definitively "respect", vs only possibly "defend and vindicate", and the whole general expectation of culturally Catholic expectations of "natural" life and death -- doubtless triple-filtered through enough tortuous legalese to give some sort of deniability.
There seems to have been significant physicianly sucking of teeth and tutting here, but it seems to amount to very little in the way of clinically significant evidence. It's been established that a high degree of foetal death and a higher-still risk of handicap at birth aren't sufficient under the present law, and no greater evidential bar has been met here.However, if the case appears to turn on medical arguments as to how many further weeks of life the foetus has prospect of, or the probability of actual viability to birth, it's difficult to see how that doesn't have knock-on implications for cases of fatal foetal abnormality.0 -
This claim doesn't survive a skim through the IT article at a hand-gallop, much less any reading of the judgement itself.A fairly carefully worded judgement, and with no reference to the 8th.
(At most) one of the above sentences can be correct. If a different judgement has "plenty of scope", then necessarily different circumstances will require that such judgements indeed be made.Kearns said "in the circumstances of this case, that in the best interest of the unborn child" which leaves plenty of scope for different judgements in other cases. It seems to be as good a judgement as could be rendered in the circumstances, though leaving the withdrawal of care at the discretion of the medical team is an interesting choice; it would seem to indicate that a direction of the Court ought not to be required in future cases, as in this instance they placed the decision firmly in the medical team's (not the family's) hands.
Curiously enough, there's lots of rhetorical and legalistic fodder for the "pro-life" in this materially "pro-death" judgement. That it unselfconsciously uses the language "unborn child" is itself telling -- let's not bother sticking to either medical language, then, or indeed to the terminology of the constitution. And it construes the foetus as having, if not other "rights", then other "interests", not anywhere set out directly. And these "interests" (in tandem with other, equally sketchily drawn considerations) can have the net effect of overriding its prescribed right, essentially giving them equivalent status as such -- in however nebulously narrow a manner.0 -
I take it you haven't actually read it then...? The entire judgement is about the 8th.
MrP
Actually having read the full text, no reference to the 8th is entirely inaccurate, though the entire judgement is about the 8th isn't all that accurate either
I'd amend to say "with appropriate reference to the requirements of 40.3.3. and 40.3.1, without giving overly undue consideration to a limited application of the 8th."0 -
"with appropriate reference to [...] without giving overly undue consideration"
This sort of abuse of language in finessing any actual meaning of, well, words is admittedly somewhat apt in the context of the judgement. It's essentially a much longer, high pay grade exercise in the same sort of thing.
A shorter equivalent would be "cherrypicking".0 -
I think in hindsight now, the judgement has confirmed that view, because it placed the decision in the hands of the medical team. The medical team gave evidence that the situation re the toxic environment meant that the unborn was not going to survive. So this put the foetus in an equivalent situation to a terminally ill person in a hospice. When a doctor (emphatically not the family) makes a decision to replace glucose and antibiotics in a terminally ill and distressed patient's drip with electrolytes and painkillers, the patient dies within a few days. The doctor does not need court approval for that.But if that is the ruling, then termination for FFA is available immediately. Do you mean no-one noticed that this was possible with our constitution until now?
Also we should realise that this judgement is now actually a part of Irish law, being case-law (or common law, or precedent).
So in any future similar cases this will be considered to be the established law. I would be very surprised if there was any serious attempt to revise either constitution or legislation as a result, because all three, constitutional, common law and legislation sit comfortably together without any conflict.
And I think if they had turned off the machine last week, and all the same arguments were made in court some time after the event, the final judgement would be the same. But as the DPP would not have prosecuted, then we would not now have the same clarification (in having an actual judgement) that we have now. We would only have the precedent to say "the machine was switched off, the unborn was treated with equivalence to the born, and nobody was prosecuted". So I suppose the sacrifice of the family has achieved something for the country in giving greater legal certainty to a particular situation. IMO the hospital should have gone ahead though, and not forced the family to make that sacrifice.
The hospital legal department obviously wanted 100% ass-covering certainty in what they thought might be (but in the end was deemed not to be) a new situation before giving any go-ahead to the doctors.0 -
I think you're clearly correct about the latter. It's one thing to have our present "You can can an abortion so long as you don't want one" regime with regards to maternal life. But it's a bit much to say you can have consideration taken of "tragic and unfortunate" circumstances and "futile, impractical or ineffective" measures... so long as you're dead. Please don't ask for such if you have the bad taste to remain alive, as a refusal will often offend.I think this will be appealed to the SC and soon we will see a devastated couple or woman taking a case on the grounds of FFA and the Government will keep the head down and hope it all goes away or some other body like Europe or the UN can be blamed for why it eventually has to stop pretending we don't have abortion in Ireland.0 -
alaimacerc wrote: »I think you're clearly correct about the latter. It's one thing to have our present "You can can an abortion so long as you don't want one" regime with regards to maternal life. But it's a bit much to say you can have consideration taken of "tragic and unfortunate" circumstances and "futile, impractical or ineffective" measures... so long as you're dead. Please don't ask for such if you have the bad taste to remain alive, as a refusal will often offend.
Yes it's like good aids/bad aids. Good abortion is a poor woman who's baby has no skull. Bad abortion is a slut who didn't bother getting her latest conquest to wear a condom.0 -
Quite some mangling of both causality and tenses here. In the grand tradition of a lot of court-steps rhetoric, you're essentially conflating a particular outcome with its supposed retrospective inevitability, and bootstrapping that into an appeal to the case's unnecessity.I think in hindsight now, the judgement has confirmed that view, because it placed the decision in the hands of the medical team.
I think "comfortably" is a stretch well beyond the plausible. It simply jams them together, leaving an abrupt disjunction between some unspecified point at which the "right to life of the unborn" must be vindicated, and where it need not be. And I stress unspecified: I challenge anyone to produce any useful characterisation of what a "similar" case would actually be, in any objective terms.So in any future similar cases this will be considered to be the established law. I would be very surprised if there was any serious attempt to revise either constitution or legislation as a result, because all three, constitutional, common law and legislation sit comfortably together without any conflict.0 -
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Yes it's like good aids/bad aids. Good abortion is a poor woman who's baby has no skull. Bad abortion is a slut who didn't bother getting her latest conquest to wear a condom.
Good, but not good enough, at present. "Go to England with our sympathy and tacit understanding" vs "Go to England if you must, but be discreet about it." (Our tacit understanding in these other cases being entirely at the strategic level.)
Story's on the BBC One teatime news right now, as it happens.0
This discussion has been closed.
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