Abortion Discussion

MrPudding

volchitsa wrote: »

It looks very much like the court chose the answer they wanted and worked back from there to find the justification!

Many academics would tell you is exactly how they work.

aloyisious wrote: »

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.

Not sure where you are getting the idea the court suggested the 8th had no relevance. Most of the judgement was taken up with an analysis of the law relating to the 8th and the meanings of the related words and how they fitted with the evidence in the present case.

I seriously don't understand how anyone could read that judgement and come to the conclusion the 8th was not relevant. It's like I am reading a different judgement.

MrP

recedite

MrPudding wrote: »

I seriously don't understand how anyone could read that judgement and come to the conclusion the 8th was not relevant. It's like I am reading a different judgement. MrP

Well it is relevant in the general sense, because the subject is abortion;

"The State acknowledges the right to life of the unborn..."

but that was already in older legislation, so is not specific to the amendment. The part of the 8th that allowed the abortion in the x -case, (because there was deemed to be a substantial risk to the mothers life) is this;

... and with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right

But as the mother was clinically dead, that was not relevant and could not be relied upon as a reason for allowing an abortion.
Hence other reasons were given, invoking the futility of causing further suffering while trying to stave off an inevitible death. But these principles that were actually relied upon in the judgement are not specific to the unborn, they apply (and are more often applied) to the born.

volchitsa

recedite wrote: »

"The State acknowledges the right to life of the unborn..."

but that was already in older legislation, so is not specific to the amendment.

I don't think it was, you know. There was no protection of the unborn as such, there was a ban on abortion in the offences against the person act. Not quite the same thing.

recedite

Good point, I suppose switching off the machine would not have been abortion under the 1861 act.
On the other hand, I don't think many would want to go back to an outright ban on abortion which does not take account of the mothers life, as per the 1861 act.

volchitsa

recedite wrote: »

Good point, I suppose switching off the machine would not have been abortion under the 1861 act.
On the other hand, I don't think many would want to go back to an outright ban on abortion which does not take account of the mothers life, as per the 1861 act.

I'd be interested in any evidence that things were worse for pregnant women before the amendment, because my understanding is that this was not the case.

I wasn't old enough to have any personal experience of the pre 1983 situation, but I've heard that in fact because the ban was on illegal abortion, it was usual to terminate pregnancies where the mother's health was at serious risk, and that the amendment led to this being stopped.

Frito

MrPudding wrote: »

I seriously don't understand how anyone could read that judgement and come to the conclusion the 8th was not relevant. It's like I am reading a different judgement.

MrP

I agree, I think the first few paras in the judgement from p18 concern the presentations of the various counsels who were arguing whether 40.3.3 was relevant, but specifically it was the court's view that whilst the common understanding of the context of article 40.3.3 relates to the procurement of miscarriage, it could also be interpreted to acknowledge the right to life of the unborn (p21, para 4)

alaimacerc

Absolam wrote: »

[...] as the State would be making the same decision in loco parentis (for want of a more accurate term).

Not a very accurate term at all, as (as I pointed out in one of the posts covered by your "tangential snark" omnibus reply), we're quickly into a range of decisions not all of which the parent-to-be is legally empowered to make.

The HC judgement helpfully supplies "parens patriae". Medical law cases may be invariably bad for morale, but they're characteristically good for Latin revision.

alaimacerc

recedite wrote: »

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.

That seems to me a lot like the "not a treatment for suicidality" canard. If such a case were to go to such unfortunate extremes, a psychiatrist isn't going to be saying "patient is suicidal, let's try an abortion, that's likely to be slightly less traumatic across the statistical mean of FFA cases". They would be assessing that particular person's state of mind, in those particular circumstances.

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.

You seem to here be implying that anyone who doesn't share your framing of the issue must be experiencing profound cognitive dissonance or compartmentalisation. (I admit it's a powerful temptation, and one I'm struggling not to succumb to myself right now.) Let's set aside the sweeping generalisations therein, the gap between each of them, and consideration of the effect of social pressure and convention in such circumstances. Look at it like this: which is the "extraordinary intervention" in a case like this, being legally constrained to continue a "futile, impractical and ineffective" pregnancy, or choosing to end it? (I mean, to be clear, from the point of view of the person experiencing it, as against the legal or medical situation.)

That would especially true of cases where delivery after the normal viability threshold would result in more-or-less immediate death -- but I confess I'm not sure what the legal situation in such cases,

So this tells me that they see the foetus as an unborn person, as per the current legal position in Ireland.

As per a breezy and popular, but rather fast and loose, statement of the current legal position in Ireland.

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.

That would be wildly popular with the non-"pro life" advocates of full foetal (embryonic, zygotic...) personhood, and make literally everyone else have conniptions. So, referendum result, 2 in favour, 2,188,415 against.

recedite wrote: »

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.

Don't think that's quite how the State would prefer to put it. In either regard.

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.

A moral obligation and fodder for medical negligence, but (other than in some Civil Law countries with "duty to rescue" laws), not a criminal matter. An unlikely scenario as a "treatment plan" for anyone planning to continue their career in medicine, most certainly, but not quite in the same category as acts of commission -- even as acts of "committed omission", like switching off life support machinery.

alaimacerc

Frito wrote: »

I agree, I think the first few paras in the judgement from p18 concern the presentations of the various counsels who were arguing whether 40.3.3 was relevant, but specifically it was the court's view that whilst the common understanding of the context of article 40.3.3 relates to the procurement of miscarriage, it could also be interpreted to acknowledge the right to life of the unborn (p21, para 4)

Indeed. Counsel for NP is making the "original intent" argument, which as I commented shortly before the judgement would be a recipe for a real legal dog's dinner. Ignore what the 8th amendment actually says in its text, what it means is simply "no abortion". (See your local high-handed medic and/or hair-splitting bishop for what's an "abortion" and what's a "medical intervention".) The court appears to reject this, though in remarkably understated terms. Perhaps we might best say, that the claim "the 8th amendment is irrelevant" is found to be irrelevant. This is the only place the Offences Against the Person Act is mentioned -- unsurprisingly perhaps, as the relevant section has been repealed (and replaced) by the Protection of Life During Pregnancy Act (itself not mentioned at all).

Brian Shanahan wrote: »

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:

Though had the court accepted counsel for NP's argument above, presumably one has to somehow divine the intent of the electorate and what they thought they were accomplishing, according to whichever language they felt they best understood it in!

recedite

alaimacerc wrote: »

That would be wildly popular with the non-"pro life" advocates of full foetal (embryonic, zygotic...) personhood, and make literally everyone else have conniptions. So, referendum result, 2 in favour, 2,188,415 against.

Your comment was I think in response to my suggestion that some sort of general assisted suicide/euthanasia law, if restricted to cases where futile suffering is the only other alternative, would allow active intervention in cases of FFA. So you are correct to point out that the extreme pro-life lobby would (by definition) oppose such a law.
But bear in mind that the extreme pro-life lobby is not the majority. That group advocated voting against the 8th amendment, and were defeated. Hence we now have a situation where abortion is permitted if the mothers life is at substantial risk.

It goes back to the point I made earlier; its a mistake to think that extreme pro-life or extreme pro-choice have ever prevailed in abortion referendums. Moderate pro-life have always prevailed against both.

alaimacerc wrote: »

Look at it like this: which is the "extraordinary intervention" in a case like this, being legally constrained to continue a "futile, impractical and ineffective" pregnancy, or choosing to end it? (I mean, to be clear, from the point of view of the person experiencing it, as against the legal or medical situation.)

Only the latter of those two is an "intervention" whether from the point of view of the patient or of the doctors. Being "legally constrained" not to break the law is not an intervention. We are all legally constrained, all of the time, otherwise we would be living in an anarchy situation.

recedite

volchitsa wrote: »

I'd be interested in any evidence that things were worse for pregnant women before the amendment, because my understanding is that this was not the case.

Well suicidal tendencies in the mother were never accepted as a reason for an abortion, so that obviously liberalises the abortion regime for situations such as the x-case.
In certain cases of physical risk, such as ectopic pregnancies, abortions were carried out, on the grounds that it was better to save one patient than lose two. Generally those kind of tricky situations were left to the medical profession to work out. RCC took a pragmatic approach and retrospectively gave the nod of approval by saying they were not abortions, they were terminations because there was no specific intent to kill the foetus (which is only mental gymnastics IMO).

Imagine a hypothetical situation in which the 8th amendment never happened, and this recent case of the brain dead mother occurred.
The 1861 act would still apply. Being an Act banning active abortion, and that being classed as an "offence against the person" it upholds the principle of personhood for the unborn.
Then combine that with the Constitution, which confers various rights on the person, including most importantly of all the right to life. It does not differentiate between rights for the unborn person and the born, therefore all rights must apply equally.

In that hypothetical situation, we are back to exactly the same arguments that we just saw in the High Court; the machine can only be switched off if its deemed to be in the best interests of the patient, whether born or unborn.

So in that sense the 8th amendment is both entirely irrelevant, and also at the same time central to the arguments.

BTW I also find it interesting that the High Court brought in UK case law, quoting Lord so-in-so in his (excellent) comments about the right to die in dignity. Not surprising though, because we both share the same historical basis for most laws including the 1861 act, but it shows that there isn't all that much actual legislation in the area, in either jurisdiction, because historically these things have largely been left to the medical profession to sort out among themselves.

Absolam

alaimacerc wrote: »

Not a very accurate term at all, as (as I pointed out in one of the posts covered by your "tangential snark" omnibus reply), we're quickly into a range of decisions not all of which the parent-to-be is legally empowered to make.

If tangential snark is the sum of your rebuttal, I'll consider the points well made so. I'm more than happy to accept the HCs greater command of Latin.

ProfessorPlum

recedite wrote: »

Well suicidal tendencies in the mother were never accepted as a reason for an abortion, so that obviously liberalises the abortion regime for situations such as the x-case.
In certain cases of physical risk, such as ectopic pregnancies, abortions were carried out, on the grounds that it was better to save one patient than lose two. Generally those kind of tricky situations were left to the medical profession to work out. RCC took a pragmatic approach and retrospectively gave the nod of approval by saying they were not abortions, they were terminations because there was no specific intent to kill the foetus (which is only mental gymnastics IMO).

Imagine a hypothetical situation in which the 8th amendment never happened, and this recent case of the brain dead mother occurred.
The 1861 act would still apply. Being an Act banning active abortion, and that being classed as an "offence against the person" it upholds the principle of personhood for the unborn.
Then combine that with the Constitution, which confers various rights on the person, including most importantly of all the right to life. It does not differentiate between rights for the unborn person and the born, therefore all rights must apply equally.

In that hypothetical situation, we are back to exactly the same arguments that we just saw in the High Court; the machine can only be switched off if its deemed to be in the best interests of the patient, whether born or unborn.

So in that sense the 8th amendment is both entirely irrelevant, and also at the same time central to the arguments.

BTW I also find it interesting that the High Court brought in UK case law, quoting Lord so-in-so in his (excellent) comments about the right to die in dignity. Not surprising though, because we both share the same historical basis for most laws including the 1861 act, but it shows that there isn't all that much actual legislation in the area, in either jurisdiction, because historically these things have largely been left to the medical profession to sort out among themselves.

The 1861 Act refers to 'procuring a miscarriage'. Withdrawing life support can not be considered procuring a miscarriage, in the same way that if a pregnant woman was killed outright, resulting in the death of her unborn baby, we wouldn't refer to a miscarriage or abortion. Or indeed, if we did not start life support on a brain dead pregnant woman, we couldn't be considered guilty of procuring a miscarriage.
The 1983 Amendment call on us to vindicate and uphold the right to life of the unborn as far as practicable. IMO, that asks us to go further than the situation with the 1961 act, and actively defend the foetal right to life. The 1961 act prevents us from actively ending the foetal life.


I found this interesting article while browsing earlier. Just reading the title. Wow.
Shouldn't really be shocked by the garbage that this crowd can produce, but somehow, I still am.

http://www.lifenews.com/2014/12/26/court-allows-hospital-to-kill-brain-dead-pregnant-moms-18-week-unborn-baby/

volchitsa

recedite wrote: »

The 1861 act would still apply. Being an Act banning active abortion, and that being classed as an "offence against the person" it upholds the principle of personhood for the unborn.
Then combine that with the Constitution, which confers various rights on the person, including most importantly of all the right to life. It does not differentiate between rights for the unborn person and the born, therefore all rights must apply equally.

In that hypothetical situation, we are back to exactly the same arguments that we just saw in the High Court; the machine can only be switched off if its deemed to be in the best interests of the patient, whether born or unborn.

So in that sense the 8th amendment is both entirely irrelevant, and also at the same time central to the arguments.

BTW I also find it interesting that the High Court brought in UK case law, quoting Lord so-in-so in his (excellent) comments about the right to die in dignity. Not surprising though, because we both share the same historical basis for most laws including the 1861 act, but it shows that there isn't all that much actual legislation in the area, in either jurisdiction, because historically these things have largely been left to the medical profession to sort out among themselves.

No there are several mistakes there. For one thing the Offences against the person Act concerned ILLEGAL abortions legal ones were always possible. In fact the Act still exists in the UK and as you know doesn't prevent abortions there.

Also, the person concerned was only ever the woman. It conferred no sort of personhood on the fetus. None.

MrPudding

volchitsa wrote: »

No there are several mistakes there. For one thing the Offences against the person Act concerned ILLEGAL abortions legal ones were always possible. In fact the Act still exists in the UK and as you know doesn't prevent abortions there.

Also, the person concerned was only ever the woman. It conferred no sort of personhood on the fetus. None.

But the relevant sections of the offences against the person act are repealed by the abortion act, so simply aren't law. They don't prevent abortion because legislation allowing abortion removed them from the statute book.

MrP

recedite

ProfessorPlum wrote: »

The 1861 Act refers to 'procuring a miscarriage'. Withdrawing life support can not be considered procuring a miscarriage...

You didn't quite get my point. I said the 1861 "offences against the person" act, while specifically protecting the unborn against an active abortion intervention, also upheld the "personhood" of the unborn.
Maybe you think that the unborn did not enjoy the protection of general constitutional personal rights before the 8th amendment, but that would be an incorrect view.

volchitsa wrote: »

No there are several mistakes there. For one thing the Offences against the person Act concerned ILLEGAL abortions legal ones were always possible. In fact the Act still exists in the UK and as you know doesn't prevent abortions there..

The 1861 act was repealed in the UK in 1967, the new wording allowed for abortion where the health of the mother was at risk. As we know, "health" allowed for a very loose interpretation, which is why the word "life" was used instead for the 8th amendment here in 1983.

recedite

A summary of this tragic case as I see it;
Doctors tried to save both the mother and the foetus, but were unable to save either. Doctors then wanted to switch off life support but were prevented by hospital administration "for legal reasons".

For whatever reasons, hospital admin referred the matter to the High Court, which ruled that if the doctors said there was no realistic prospect for life, the machine should be switched off.

Very little has been learned and no new legal principle has been established.
Some people are blaming the 8th amendment, but the result would have been the same, with or without the 8th amendment.

The family suffered unnecessarily. Questions need to be asked of the hospital policymakers, just as they needed to be asked in the Savita case; why did they decide to do what they did?

drkpower

recedite wrote: »

A summary of this tragic case as I see it;
Doctors tried to save both the mother and the foetus, but were unable to save either. Doctors then wanted to switch off life support but were prevented by hospital administration "for legal reasons".

For whatever reasons, hospital admin referred the matter to the High Court, which ruled that if the doctors said there was no realistic prospect for life, the machine should be switched off.

Very little has been learned and no new legal principle has been established.
Some people are blaming the 8th amendment, but the result would have been the same, with or without the 8th amendment.

The family suffered unnecessarily. Questions need to be asked of the hospital policymakers, just as they needed to be asked in the Savita case; why did they decide to do what they did?

There are a few relevant potential legal ramifications

1. The court accepted that the 8th amendment was relevant to non-abortion related threats to the foetus (rejecting the argument that the 8th only related to abortion); that has implications for many other scenarios, maternal refusal of Caesarean section being one.

2. The judgment implicitly opened up the prospect that if the foetus had a reasonable prospect of survival, a dead or dying body would be somatic ally maintained for weeks. The extent of what degree of possibility if foetal survival would warrant such intervention wasn't clarified by the court. As Michael McDowell pointed out, this makes the likelihood of future trips to the high court in similar cases far more likely.

3. Fatal foetal abnormality: the logic of the judgment suggests that terminations are now permissible in cases of FFA where there is minimal chance of the foetus being born alive (although even that analysis is questionable, as a future court might rule that a positive step (terminating a FFA pregnancy) is not the same thing as (in this case) an omission (ie. allowing the foetus to die).

So, yes, the case has had a significant impact.

Finally, While you are right that this case would have ended the same way in the absence of the 8th, the important point is that the matter probably wouldn't have ended up in court were it not for the 8th ( as life support would simply have been turned off). There is an argument that the hospital/doctors/their lawyers could have turned off life support without court order, but that is being quite harsh. Because of the wording of the 8th, the lack of legislative or ethical guidelines, it is very difficult for doctors or lawyers to confidently state where it's boundaries lie.

Also, just as an FYI, the hospital did not bring the matter to court. The family did as the hospital were not prepared to turn of life support.

recedite

drkpower wrote: »

1. The court accepted that the 8th amendment was relevant..

It was relevant to the discussion, but irrelevant to the outcome. As we discussed ourselves here a few pages back.

drkpower wrote: »

2. The judgment implicitly opened up the prospect that if the foetus had a reasonable prospect of survival, a dead or dying body would be somatically maintained for weeks.

So, no change there.

drkpower wrote: »

The extent of what degree of possibility if foetal survival would warrant such intervention wasn't clarified by the court. As Michael McDowell pointed out, this makes the likelihood of future trips to the high court in similar cases far more likely.

The court said that it was a medical decision, as to whether trying to prolong life in individual cases was futile or not. Regardless of what McDowell says, it would be pointless going to court unless one side has expert medical opinion that is willing to contradict the hospital doctors. So no change there.

drkpower wrote: »

3. Fatal foetal abnormality: the logic of the judgment suggests that terminations are now permissible in cases of FFA where there is minimal chance of the foetus being born alive (although even that analysis is questionable, as a future court might rule that a positive step (terminating a FFA pregnancy) is not the same thing as (in this case) an omission (ie. allowing the foetus to die).

They actually pointed out that no positive steps could be taken to end a life prematurely, whether born or unborn (except in the case of a foetus, and only then to save the mothers life). So that's not questionable, and no change there.

drkpower wrote: »

Also, just as an FYI, the hospital did not bring the matter to court. The family did as the hospital were not prepared to turn of life support.

Fair point. The hospital needs to say why they were not prepared to turn it off. If the reason is that initially they thought the foetus had a reasonable chance of survival, but then things worsened, it means they acted appropriately to the medico-legal situation, and they should just say that.
If that is what happened, then taking the matter to court may have caused the life support to be kept on longer than if the hospital had been left to make the decision unhindered by a pending court case.

PopePalpatine

recedite wrote: »

A summary of this tragic case as I see it;
Doctors tried to save both the mother and the foetus, but were unable to save either. Doctors then wanted to switch off life support but were prevented by hospital administration "for legal reasons".

Do we actually know if the woman suffered a complication during pregnancy, which resulted in her becoming brain-dead?

MrPudding

PopePalpatine wrote: »

Do we actually know if the woman suffered a complication during pregnancy, which resulted in her becoming brain-dead?

I don't think there is any suggestion of that. She had a cyst, I believe in the vicinity of one of the ventricles. Initially this was putting pressure on her brain, causing the pain she initially experienced. There is a question, perhaps that this may have been stopped had she received a CT scan when she initially presented. She later fell, causing serious head trauma and this in conjunction wight he cyst ultimately caused brain death. Her brain had not received any blood since the beging of December.

MrP

MrPudding

recedite wrote: »

It was relevant to the discussion, but irrelevant to the outcome. As we discussed ourselves here a few pages back.

In order to find a person guilty of murder it must be shown, beyond reasonable doubt that they committed an act that resulted in the death of a person, and that they carried out that act with the intention of causing death or really serious harm. If the intent can't be shown, there is no murder. So if someone is charged with murder there will be an analysis of the accused intent, similar to how the 8th was discussed in this case. If it is found there was no intent, and therefore no murder, would you say the analysis of intent was relevant to the discussion, but not relevant to the outcome, because that is kind of what you seem to be doing in relation to the 8th.

MrP

Cantremember

There is a great deal of waffle being done here. The 8th amendment was the reason that the medical team had doubts about how they should proceed. The judgement noted the need to vindicate the rights of the unborn.

The realities of human life and its brutality, advances in medical science and intervention all mean the whole area is one where goal posts shift. The 8th serves no purpose except to tether us to a religiously grounded and backward view of humanity. We have to work out what is best for people ourselves; we have to keep a common sense view of things and not listen to people who claim to have special knowledge from the alleged deity about what we ought to do. And we need to put lawyers firmly in their place.

alaimacerc

Cantremember wrote: »

There is a great deal of waffle being done here.

Welcome to a day's work in this thread!

The 8th amendment was the reason that the medical team had doubts about how they should proceed. The judgement noted the need to vindicate the rights of the unborn.

Indeed. The pro-life/pro-8th/pro "sensible silent-majority golden-mean-fallacious Irish fudge" seem very slow to let this one go, I think mainly because they don't want to admit it's not Perfect In Every Way, and flawed even as a "reproductive ethics -- let's Sewel Motion that to the Vatican as usual" measure. And because they've bought into counsel for NP's argument (dismissed by the HC), asserted this is the case, and decided if they're going to back down from their claims to this effect, they'd best do it gradually, to a series of emplaced defensive positions. Or perhaps just because they're a bit slow.

alaimacerc

recedite wrote: »

You didn't quite get my point. I said the 1861 "offences against the person" act, while specifically protecting the unborn against an active abortion intervention, also upheld the "personhood" of the unborn.

We get your point; you seem not to be getting that this point has been addressed. And indeed, refuted. For example:

volchitsa wrote: »

No there are several mistakes there. For one thing the Offences against the person Act concerned ILLEGAL abortions legal ones were always possible. In fact the Act still exists in the UK and as you know doesn't prevent abortions there.

Also, the person concerned was only ever the woman. It conferred no sort of personhood on the fetus. None.

Seems pretty straightforward to me. If you have some counterargument, I'd be interested to see it, but I'm pretty sure that no-one credibly sees "title of the act establishes personhood of all noun phrases mentioned therein" as a viable line of argument.

Maybe you think that the unborn did not enjoy the protection of general constitutional personal rights before the 8th amendment, but that would be an incorrect view.

It would be a "correct view", or more to be point, "correct facts", to say that the unborn did not have "general constitutional personal rights" before the 8th, and that they didn't have it afterwards, either. If you have a case where an embryo was found to have a right to privacy or a right to own property, I'd be delighted to see it.

The 1861 act was repealed in the UK in 1967 [...]

Not correct. The Offences Against the Person Act remains in force in the UK. Section 58 remains in force. You can verify this on the version-tracking page of the UK Government's website. None of the revisions of its text pertain to this phantasm that the Act ever established foetal personhood.

What's more, this article has (as I pointed out earlier) been repealed in Ireland, which now just has the 8th amendment (ascribing to The Unborn the single right to life) and the Protection of Life During Pregnancy Act 2013. The latter doesn't have the word "person" associated with its wording even in this incidental sense anywhere, using the word "person" 31 times in reference to what the holdouts in this thread would call "born persons", and "unborn human life" to what they continue to assert to be "unborn persons" Merely a slipshod drafting error, I'm sure.

Thus by your reasoning, the UK has foetal personhood, whereas Ireland does not. This might give you reason to question your logic even on purely internal grounds.

[...]the new wording allowed for abortion where the health of the mother was at risk. As we know, "health" allowed for a very loose interpretation, which is why the word "life" was used instead for the 8th amendment here in 1983.

Yes, because of the danger of "very loose" interpretation, Ireland opted for a "go to England or go blind" attitude to the question of maternal health. We don't particularly need refreshers on this aspect.

alaimacerc

Absolam wrote: »

If tangential snark is the sum of your rebuttal, I'll consider the points well made so.

No, "tangential snark" was my description, and one you don't seem to trouble to materially challenge, much less anything beyond that. Lack of "points", hence lack of need for "rebuttal".

Before you attempt "if that's the sum..." jibes, you might want to consider responses that actually address some of what I said.

alaimacerc

recedite wrote: »

The court said that it was a medical decision, as to whether trying to prolong life in individual cases was futile or not. Regardless of what McDowell says, it would be pointless going to court unless one side has expert medical opinion that is willing to contradict the hospital doctors. So no change there.

No, what the court delivered was a legal decision taking into account various medical facts. It's a false generalisation to say this establishes some clearcut set of cases where the decision would simply be a medical one -- as you have several times sought to imply was somehow "obviously" the case all along here, despite copious evidence this is not the case. In particular, any time foetal prospects for life are in any way better -- and more to the point given the patchiness of the clinical evidence, any time there's uncertainty as to whether the prospects are better -- you have the prospects of such cases. McDowell may feel it's a problem of the HC that it "signally failed to locate responsibility for such decisions firmly among clinicians". But that's to presuppose it was somehow "firmly located" there in the first place, which hardly seems likely given both the nature of the HC ruling and his own complaints about it. If it was the case before, surely it was the case now.

It's a bit like the old joke about the maths lecturer who writes "Obviously it follows from Lemma 3 that...", and is asked by a student if that's really "obvious". He thinks about it for ten minutes, and then says "Yes, it is."

Absolam

alaimacerc wrote: »

No, "tangential snark" was my description, and one you don't seem to trouble to materially challenge, much less anything beyond that. Lack of "points", hence lack of need for "rebuttal".
Before you attempt "if that's the sum..." jibes, you might want to consider responses that actually address some of what I said.

Hmm. That actually does sound like a tangential snark. Excellent work!

recedite

alaimacerc wrote: »

No, what the court delivered was a legal decision taking into account various medical facts. It's a false generalisation to say this establishes some clearcut set of cases where the decision would simply be a medical one -- as you have several times sought to imply was somehow "obviously" the case all along here, despite copious evidence this is not the case. In particular, any time foetal prospects for life are in any way better -- and more to the point given the patchiness of the clinical evidence, any time there's uncertainty as to whether the prospects are better -- you have the prospects of such cases.

My point is that the "uncertainty" as you put it, is a medical uncertainty, not a legal uncertainty. It is not a new type of uncertainty, it is dealt with all the time by doctors. Babies born with FFA are allowed to die. Elderly people in hospices are allowed to die. At some point doctors decide that further attempts to prolong life are futile.

In support of my view I quote from the judgement itself, they pose this very question first in general terms as it would apply to both born and unborn;

The question then becomes one of how far the Court should go in terms of trying to vindicate that right in the particular circumstances which arise here. Some very considerable guidance in that regard can be derived from some well-known wardship cases. In In re a Ward of Court (witholding medical treatment) (N0. 2) [1996] 2 I.R. 79, the High Court held that the right to life ranked first in the hierarchy of personal rights, though it might nevertheless be subject to certain qualifications. Thus although the State has an interest in preserving life, this interest is not absolute in the sense that life must be preserved and prolonged at all costs no matter what the circumstances. In the course of her judgment in this case in the Supreme Court Denham J. stated (at p. 58):-
“In respecting a person’s death, we are also respecting their life – giving to it sanctity. That concept of sanctity is an inclusive view which recognises that in our society persons, whether members of a religion or not, all under the Constitution are protected by respect for human life. A view that life must be preserved at all costs does not sanctify life. A person, and/or her family, who have a view as to the intrinsic sanctity of the life in question are, in fact, encompassed in the constitutional mandate to protect life for the common good; what is being protected (and not denied or ignored or overruled) is the sanctity of the person’s life. To care for the dying, to love and cherish them, and to free them from suffering rather than to simply postpone death, is to have fundamental respect for the sanctity of life and its end.”

Then they pose the same question more specifically to this case;

..the question which must be addressed is whether even if such measures are continued there is a realistic prospect that the child will be born alive. In Maternal Brain Death, Pregnancy and the Foetus: The Medico-Legal Implications (2001 Medico Legal Journal) the authors Asim Sheikh and Denis Cusack put the matter as follows:-
“If maternal death occurs and all the reasonable, responsible and carefully considered evidence clearly suggests that the foetus cannot be maintained, then on the rationale of Bland and Re A there no longer exists a best interest to protect and the futile continuation of further treatment should no longer be permitted.”

So if a specific case is brought before the court, they are obliged to make a judgement. They cannot tell lawyers to stop taking cases to court. But they can lay out the rationale behind the decisions, so that it becomes more and more "obvious", to more and more people, that a similar case will prima fascie have the same result, even to the point where taking the case is spurious.
You quoted McDowell's view....

alaimacerc wrote: »

McDowell may feel it's a problem of the HC that it "signally failed to locate responsibility for such decisions firmly among clinicians". But that's to presuppose it was somehow "firmly located" there in the first place, which hardly seems likely given both the nature of the HC ruling and his own complaints about it. If it was the case before, surely it was the case now.
It's a bit like the old joke about the maths lecturer who writes "Obviously it follows from Lemma 3 that...", and is asked by a student if that's really "obvious". He thinks about it for ten minutes, and then says "Yes, it is."

Yes, it is a bit like that old joke, the more you think about it the more obvious it becomes. But McDowell runs a legal practice, and if nobody wanted to take cases to court, he would have no business. So perhaps that is the businessman in him talking.

The lawyer in him says this;

"This matter is quintessentially one for professional medical clinicians ... it really was not one appropriate to judicial determination at all." Mr McDowell said that even if the circumstances had been less drastic, "no single judge, or group of judges at High Court or Supreme Court level, is in any better position than clinicians to make a medical and ethical decision on what should happen".

sourced from indo
IMO McDowell is correct in saying that, and the High Court are also correct to throw such decisions in future back to the medical profession, which they did by their extensive quoting from medical journals and medical experts, and writing those into the judgement.
So while costs were awarded to the plaintiff this time (it would have been cruel not to) in the unlikely event that other similar cases started to come before the courts regularly, the legal costs themselves would become the deterrent.

Cantremember

recedite wrote: »

My point is that the "uncertainty" as you put it, is a medical uncertainty, not a legal uncertainty. It is not a new type of uncertainty, it is dealt with all the time by doctors. Babies born with FFA are allowed to die. Elderly people in hospices are allowed to die. At some point doctors decide that further attempts to prolong life are futile.

In support of my view I quote from the judgement itself, they pose this very question first in general terms as it would apply to both born and unborn;Then they pose the same question more specifically to this case;
So if a specific case is brought before the court, they are obliged to make a judgement. They cannot tell lawyers to stop taking cases to court. But they can lay out the rationale behind the decisions, so that it becomes more and more "obvious", to more and more people, that a similar case will prima fascie have the same result, even to the point where taking the case is spurious.
You quoted McDowell's view....

Yes, it is a bit like that old joke, the more you think about it the more obvious it becomes. But McDowell runs a legal practice, and if nobody wanted to take cases to court, he would have no business. So perhaps that is the businessman in him talking.

The lawyer in him says this; sourced from indo
IMO McDowell is correct in saying that, and the High Court are also correct to throw such decisions in future back to the medical profession, which they did by their extensive quoting from medical journals and medical experts, and writing those into the judgement.
So while costs were awarded to the plaintiff this time (it would have been cruel not to) in the unlikely event that other similar cases started to come before the courts regularly, the legal costs themselves would become the deterrent.

The medical uncertainty was grounded in a legal uncertainty. The judgement in this case was based on the lack of prospects of survival of the foetus. In a future similar case if the medical opinion is not all "going the one way" guess where it will end up. The 8th will continue to exercise an influence on medical thinking.