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Abortion Discussion
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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.
Apparently "via media" opinion is not especially unhappy with the courts doing exactly that. And doing it on the hoof, whether in the least coherently or not. Slightly more deniable than actually trying to bake the exceptionalist thinking into legislation, after all.0 -
Just read there will be no appeal. This case may have implications for cases of fatal foetal abnormalities.
This is what I was wondering. Correct me if Im wrong but I think you cant get an abortion for a FFA unless there is not heartbeat and it is already dead. If there is a heartbeat then nature has to take its course.
Not sure on the above with the legislation now.
But in the case where the child is not likely to survive then the 8th no longer applies. Does this mean that abortions will be possible in the case of FFA? (if they arent already)0 -
shruikan2553 wrote: »This is what I was wondering. Correct me if Im wrong but I think you cant get an abortion for a FFA unless there is not heartbeat and it is already dead. If there is a heartbeat then nature has to take its course.
Not sure on the above with the legislation now.
But in the case where the child is not likely to survive then the 8th no longer applies. Does this mean that abortions will be possible in the case of FFA? (if they arent already)
Hopefully it will be challenged and legal terminations for FFA will be allowed. It does read as though it could be interpreted that way.0 -
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?
Implicit in the concept of a "right" is the idea of being able to choose how to exercise it. Otherwise, it's simply a duty being placed on others, by another name. A person would exercise their "right to life" (insofar as they have one -- good luck getting any actual purchase with that) in the context of being able to refuse "futile" (or indeed, any undesired) treatment. Or in the case of a minor or person already incapacitated, their guardian or next of kin making that judgement for them.
Irish abortion law and "right to life" constitutional provision has as its premise granting a right to an entity that's by definition not able to exercise any such volition, and where the express presumption is that their (future, at the time they actually become a legal person) next of a kin and guardians are the very ones to be least trusted. Thus one is necessarily going to see anomalies between this "right" and those that may (or may not) be enjoyed by natural legal persons.0 -
I would put money on such a case coming before the courts in Ireland before this time next year, especially if there is a couple who do not have the means or ability to travel to terminate because of a fatal abnormality.shruikan2553 wrote: »This is what I was wondering. Correct me if Im wrong but I think you cant get an abortion for a FFA unless there is not heartbeat and it is already dead. If there is a heartbeat then nature has to take its course.
Not sure on the above with the legislation now.
But in the case where the child is not likely to survive then the 8th no longer applies. Does this mean that abortions will be possible in the case of FFA? (if they arent already)0 -
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I agree with both aspects of this; the 8th is irrelevant in FFA cases and aborting them would not necessarily be illegal. There could sometimes be some physiological benefit to the mother in letting them run their course, but in most cases that would be because the hospital is run by a religious order, or unduly influenced by RCC.shruikan2553 wrote: »But in the case where the child is not likely to survive then the 8th no longer applies. Does this mean that abortions will be possible in the case of FFA? (if they arent already)
In the same way, abortion was not illegal at the time of the Savita case, because the precedent had been set in the 1992 "X case" allowing it where the mother's life was at substantial risk. What procedures an individual hospital decides to permit is another matter though. That is decided by their own ethics committee and their legal team.0 -
I would put money on such a case coming before the courts in Ireland before this time next year, especially if there is a couple who do not have the means or ability to travel to terminate because of a fatal abnormality.
That's where the real inequity is (in FFA cases), much as one has sympathy those those able to do so, but feeling mistreated by Ireland's attitude in the process. But there's an obvious selection bias here: if one lacks the means to travel, one may equally be disadvantaged when it comes to access to the upper echelons of the legal system. To put that very mildly. Of course, if the state wants to volunteer to beat up on itself by undertaking to represent both sides, as it did in the NP case, that would help things along. Sound likely, though?0 -
Correct, except that I would use the word "describe" instead of "conflate".alaimacerc wrote: ».. 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 challenge you to go on a visit to any hospice or geriatric ward and then tell me whether the same medical decision-making process regarding the point at which a life should or should not be supported is constantly present.alaimacerc wrote: »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.0 -
Lingua Franca wrote: »
That is a very distressing read, it is quite disgraceful that that poor women was "kept alive" in that horrendous condition just because doctors were fearful of potential legal consequences. It is rather embarrassing and shameful that such a situation can arise in our apparently modern society.0 -
I agree with both aspects of this; the 8th is irrelevant in FFA cases and aborting them would not necessarily be illegal.
And by "irrelevant" I assume you mean "plainly crucial". But you're simply choosing to skip ahead to the "hindsight" part where the SC (or the ECHR, perhaps) makes a ruling extensively discussing the 8th's implications. Potentially such a ruling would indeed decide that in cases that in some particular case -- and "similar" cases according to some uncertain criteria -- the "futile" effort to preserve life does not prevail over the "distress" caused, and so on. So "not necessarily" is more apt, but not necessarily not, either. All depending on how it's ruled. According to the amendment.
Note, however, that unlike this case, it hasn't been judged yet -- so at least you're less certain to be wrong than Absolam was in their similar statement, earlier. Also note that the "extreme pro-life" side sees the two very differently. One can readily exemplify this in the form of Cora Sherlock, for starters. This is unsurprising, though, when you consider how the Conservative Catholic element regards the importance of "natural" life and death.0 -
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alaimacerc wrote: »That's where the real inequity is (in FFA cases), much as one has sympathy those those able to do so, but feeling mistreated by Ireland's attitude in the process. But there's an obvious selection bias here: if one lacks the means to travel, one may equally be disadvantaged when it comes to access to the upper echelons of the legal system. To put that very mildly. Of course, if the state wants to volunteer to beat up on itself by undertaking to represent both sides, as it did in the NP case, that would help things along. Sound likely, though?
It could be taken on as an exceptional public interest case especially as UK hospitals have stated that they limit the number of Irish patients traveling to avail of what can be complex treatment for fatal abnormality termination. Imagine when such a woman cannot be treated abroad because of financial, medical or capacity reasons where the foetus is not viable. There could potentially be a constitutional case.taken on such grounds.0 -
That is a very distressing read, it is quite disgraceful that that poor women was "kept alive" in that horrendous condition just because doctors were fearful of potential legal consequences. It is rather embarrassing and shameful that such a situation can arise in our apparently modern society.
It is an appalling case. I have to admit I thought of the woman being like a "sleeping beauty" situation. I had no idea there was a woman who was essentially decomposing yet being kept "alive". Horrendous. I also have to admit I shed a few tears at the thought of her children seeing her like that. I would not want my husband and children to have to see me decomposing before their eyes because of religious nonsense forced into the constitution thirty years ago.0 -
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Brian Shanahan wrote: »Or a wife with three kids whose husband just lost his job and the condom broke.
"Why don't you give it up for adoption??"
"Married couples can't offer their children for adoption in Ireland."
"...."0 -
Brian Shanahan wrote: »Or a wife with three kids whose husband just lost his job and the condom broke.
But why would you be using a condom anyway? Sure don't you want to fill Ireland with little poverty-stricken catholics just like the church wants?0 -
I've always felt specificity was preferable to brevity. I've noticed your own preference for the latter rarely extends to your own posts though.alaimacerc wrote: »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".
That's certainly trite, but I can't see why you imagine it's true?alaimacerc wrote: »Implicit in the concept of a "right" is the idea of being able to choose how to exercise it.
Is there a right conferred by the State that doesn't involve a duty being placed on others?alaimacerc wrote: »Otherwise, it's simply a duty being placed on others, by another name.
. Given that the right is indisputably conferred, this seems to fly in the face of your assertion that implicit in the concept is the idea of being able to choose how to exercise it?alaimacerc wrote: »Irish abortion law and "right to life" constitutional provision has as its premise granting a right to an entity that's by definition not able to exercise any such volition0 -
Or if not quite decomposing as such, then it certainly sounds like a case of surefire septic shock happening by inches.It is an appalling case. I have to admit I thought of the woman being like a "sleeping beauty" situation. I had no idea there was a woman who was essentially decomposing yet being kept "alive". Horrendous. I also have to admit I shed a few tears at the thought of her children seeing her like that. I would not want my husband and children to have to see me decomposing before their eyes because of religious nonsense forced into the constitution thirty years ago.
One can't help but wonder how narrowly the decision was intended -- and in future, may be construed -- as to the particular medical parameters. I imagine in practice it'll be left to the next populist judicial exercise in quasi-legislation according to prevailing sentiment as and when it arises. (The alternative is some part of the political, administrative, or legal establishment getting out in front and taking foresighted action in a way that they're prepared to stand over, and doesn't simply rely on multiple layers of hypocrisy for necessary operational lubrication. As I noted just upthread, I don't think that's a likely, imminent prospect.)
Had the circumstances between somewhat less medically gory, or the pregnancy somewhat further advanced, it seems very plausible that said establishment and/or "public conscience" might simply have ah-sured at the "death with dignity" issue, and given it the old right-to-life try. Certainly the "desired" 32-week delivery window sounds as if it has a whole lot of flex in it, given how firmly we're told that "potentially viable" is much lower, when it suits the opposite line of reasoning.0 -
That poor girl was being used as an incubator.
I really am shocked by this whole thing.0 -
That poor girl was being used as an incubator.
I really am shocked by this whole thing.
But it's unavoidable when the fetus is accorded the same moral value as the woman. No-one would dream of turning off life support on a person who isn't already dead, even if they're dying. So it makes no sense, under our current law, to do so to a fetus until it dies "naturally".0 -
The judgement did make reference to a 1996 SC case where life sustaining treatment was withdrawn in order to allow a 'natural' death, at which time the SC found:But it's unavoidable when the fetus is accorded the same moral value as the woman. No-one would dream of turning off life support on a person who isn't already dead, even if they're dying. So it makes no sense, under our current law, to do so to a fetus until it dies "naturally".
“As the process of dying is part, and an ultimate, inevitable consequence, of life, the right to life necessarily implies the right to have nature take its course and to die a natural death and, unless the individual concerned so wishes, not to have life artificially maintained by the provision of nourishment by abnormal artificial means, which have no curative effect and which is intended merely to prolong life. This right, as so defined, does not include the right to have life terminated or death accelerated and is confined to the natural process of dying.”
As the person involved was a Ward of Court, the State was found to be entitled to make the decision to withdraw treatment in her best interests, which is similar to the current judgement where withdrawing the somatic support allows the unborn child to die a 'natural death' (and Kearns also used the phrase "in the best interest of the unborn child") in the judgement.
I think the reference to a previous case where life support was withdrawn from a born person and the use of similar language shows that the High Court wanted to demonstrate a parity with and consistency in similar judgements with regards to the right to life for both born and unborn.
Whilst it would be heartening to think the case paves the way to allowing abortion in the case of FFA I have my doubts. Both cases allow the withdrawal of care to 'allow nature to take it's course', but neither endorses the taking of deliberate medical action (such as an abortion) to prematurely end a life which is in the process of ending naturally; in fact the 1996 judgement specifically opposes it:
“No person has the right to terminate or to have terminated his or her life, or to accelerate or have accelerated his or her death.”0 -
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The judgement did make reference to a 1996 SC case where life sustaining treatment was withdrawn in order to allow a 'natural' death, at which time the SC found:
“As the process of dying is part, and an ultimate, inevitable consequence, of life, the right to life necessarily implies the right to have nature take its course and to die a natural death and, unless the individual concerned so wishes, not to have life artificially maintained by the provision of nourishment by abnormal artificial means, which have no curative effect and which is intended merely to prolong life. This right, as so defined, does not include the right to have life terminated or death accelerated and is confined to the natural process of dying.”
As the person involved was a Ward of Court, the State was found to be entitled to make the decision to withdraw treatment in her best interests, which is similar to the current judgement where withdrawing the somatic support allows the unborn child to die a 'natural death' (and Kearns also used the phrase "in the best interest of the unborn child") in the judgement.
I think the reference to a previous case where life support was withdrawn from a born person and the use of similar language shows that the High Court wanted to demonstrate a parity with and consistency in similar judgements with regards to the right to life for both born and unborn.
Whilst it would be heartening to think the case paves the way to allowing abortion in the case of FFA I have my doubts. Both cases allow the withdrawal of care to 'allow nature to take it's course', but neither endorses the taking of deliberate medical action (such as an abortion) to prematurely end a life which is in the process of ending naturally; in fact the 1996 judgement specifically opposes it:
“No person has the right to terminate or to have terminated his or her life, or to accelerate or have accelerated his or her death.”
Ok, that's an interesting point then - it seems to open a strange vista where the 8month fetus of a dead woman could legally be left to die with her, with no attempt made to remove it (obviously one assumes this would be rare, but there have been so many lawful results of this 8th amendment that one hardly dares to reject any imaginary scenario now) while a fetus with FFA must be left to come to natural birth and thence to natural death! however painful.
Would you agree?0 -
Good point. If the FFA was such that it required some special medical treatment to keep the pregnancy going, then that could be withdrawn. But AFAIK in most cases the pregnancy can run its course naturally without any medical intervention, so that would not generally apply.Whilst it would be heartening to think the case paves the way to allowing abortion in the case of FFA I have my doubts. Both cases allow the withdrawal of care to 'allow nature to take it's course', but neither endorses the taking of deliberate medical action (such as an abortion) to prematurely end a life which is in the process of ending naturally; in fact the 1996 judgement specifically opposes it:
“No person has the right to terminate or to have terminated his or her life, or to accelerate or have accelerated his or her death.”
The other grounds for abortion would be the suicide risk, as per the x-case, now requiring the testimony of 3 doctors as per recent legislation.
Against the suicide risk is the fact that FFA is always going to be traumatic either way, whether it ends in an abortion or a stillborn baby. So it would have to be argued that the suicide risk to the mother would be eliminated by aborting, which could be difficult.
In most of the cases of FFA that I have read about, where the parents have travelled to the UK for an abortion, they seem to have a somewhat conflicted attitude to the whole process. They often say they are not pro-abortion, and getting the remains of the dead baby back to Ireland for a burial is often a concern. So this tells me that they see the foetus as an unborn person, as per the current legal position in Ireland. On the other hand, they have made the (understandable) decision to euthanase the foetus early, because they cannot bear the waiting, and it cannot live anyway. They resent the fact that this State did not facilitate them.
So I think there are two possible routes to change, both of which would involve changes to the Constitution.
One would be amending the 8th amendment to allow a specific exception for FFA, such that the right to life of the unborn in that specific situation is not protected.
The other would be some amendment that legalised assisted suicide and/or euthanasia in certain unspecified hopeless situations. That would authorise a deliberate medical action to take life (as opposed to just the withdrawal of life sustaining medical interventions). Then that law would apply equally to the born and the unborn.
Whether politicians will support either of these moves, any time soon, is another matter though.0 -
Not if the foetus was healthy, and could be saved. I get your point that by withdrawing medical intervention, nature would take its course and the foetus would die. And that would not be classed as an intervention designed to take life.Ok, that's an interesting point then - it seems to open a strange vista where the 8month fetus of a dead woman could legally be left to die with her, with no attempt made to remove it
However it would be a neglect of the duty to protect viable life. The state sees the unborn in much the same way as the born, except that they have a slightly less right to life than the mother.
So for example, if you were found lying at the side of the road with serious injuries having been hit by a car, there is an obligation to give you life saving treatment rather than letting nature take its course. The 8 month old foetus in your example is accorded the same right to receive medical treatment.0 -
I don't think so? The State is still required to protect and vindicate the right to life of the unborn as far as is practicable, and in the case of a foetus at 8 months in a dead woman, unless the foetus is unviable, it would be readily practicable to deliver the child? Also, in the case of FFA were the foetus to die or be about to die in utero, the current ruling would seem to allow the medical team the discretion to abort/deliver it before it came to term. They simply wouldn't be obligated to take artificial measures to ensure life continues until the natural birth.Ok, that's an interesting point then - it seems to open a strange vista where the 8month fetus of a dead woman could legally be left to die with her, with no attempt made to remove it (obviously one assumes this would be rare, but there have been so many lawful results of this 8th amendment that one hardly dares to reject any imaginary scenario now) while a fetus with FFA must be left to come to natural birth and thence to natural death! however painful. Would you agree?0 -
It seem's to me that the judgement proper begin's on Para 2 of page 18 of the printed-out judgement report. The ruling makes it clear that while Amendment 8 was mentioned in the hearings, it has no relevance to the case due the accidental circumstances that brought about the medical condition of the woman and the unborn. The court also took into account the reported feelings of the woman towards her unborn child (prior to the accident making her incapable of making any decisions) as being indicative of a desire for the baby to be born. It found no evidence that the woman had any feelings or reported desire for an abortion of the unborn in her womb.0
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aloyisious wrote: »The court also took into account the reported feelings of the woman towards her unborn child (prior to the accident making her incapable of making any decisions) as being indicative of a desire for the baby to be born. It found no evidence that the woman had any feelings or reported desire for an abortion of the unborn in her womb.
What possible relevance could that have had in Irish law? If she had wanted an abortion, would that have been a point against keeping the life support on?
It looks very much like the court chose the answer they wanted and worked back from there to find the justification!0 -
I don't think that comes into the findings though, does it? It appears under "evidence heard" where it says that "counsel for N.P. the plaintiff argued that..."aloyisious wrote: »The court also took into account the reported feelings of the woman towards her unborn child (prior to the accident making her incapable of making any decisions) as being indicative of a desire for the baby to be born. It found no evidence that the woman had any feelings or reported desire for an abortion of the unborn in her womb.
Various people argued various points while giving evidence, but that does not mean those arguments were accepted by the court in its findings. There was even a point made by someone that the Irish language version of the 8th amendment takes precedence over the English version, which I don't think could stand up unless it could be proven that most voters in the referendum were Gaelgeoirs, and were voting based on the Irish language wording.0 -
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I don't think that comes into the findings though, does it? It appears under "evidence heard" where it says that "counsel for N.P. the plaintiff argued that..."
Various people argued various points while giving evidence, but that does not mean those arguments were accepted by the court in its findings. There was even a point made by someone that the Irish language version of the 8th amendment takes precedence over the English version, which I don't think could stand up unless it could be proven that most voters in the referendum were Gaelgeoirs, and were voting based on the Irish language wording.
Actually, the Irish language version of legislation always has primacy over the English language version, as Irish is the first official language of the State, and English only the second, according to the Constitution. Strange (these days) but true.....
As to the opinions expressed in evidence heard, I agree that they wouldn't have had legal relevance, but would probably have been considered as speaking to the motivations of the testimony offered, most particularly (I'm guessing) whether the mother would have been likely to take extreme measures to preserve the life of her child, as the State would be making the same decision in loco parentis (for want of a more accurate term).0 -
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There was even a point made by someone that the Irish language version of the 8th amendment takes precedence over the English version, which I don't think could stand up unless it could be proven that most voters in the referendum were Gaelgeoirs, and were voting based on the Irish language wording.
Actually you're wrong on this, the precedence of the Irish over the English version when interpreting the constitution is itself a constitutionally protected act:In case of conflict between the texts of a law enrolled under this section in both the official languages, the text in the national language shall prevail.Article 7 wrote:The Irish language as the national language is the first official language.
Relevant constitutional articles gotten from here.0
This discussion has been closed.
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