Abortion Discussion, Part Trois

silverharp

silverharp wrote: »

I dont know if Humphreys is doing a bit of trolling but fk me


http://www.irishtimes.com/news/crime-and-law/courts/high-court/unborn-child-has-significant-legal-rights-judge-rules-1.2741697

smacl wrote: »

So is the unborn child an Irish citizen once it is conceived in Ireland, or does the child have to be born here? All seems rather dubious to say the least, but an interesting possible loophole for would be migrants.

Hotblack Desiato wrote: »

Every so often the High Court comes up with a ruling which can only be described as bizarre. It's the reason we have a Supreme Court.

Dragging the conversation back to this if possible.

The contrasting precedent of this case ('Baby O') (importantly prior to the 2012 cited constitutional change) should provide for some very interesting conclusions upon appeal imo.

Mr Justice Richard Humphreys said that article 42a of the Constitution, inserted as a result of the 2012 Children’s Referendum, provides the State must protect “all” children.

Because an “unborn” is “clearly a child”, article 42a means all children “both before and after birth”.

Article 42A wrote:

2.1° In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

What powers does this interpretation give to the state in the case of an irresponsibly pregnant (drinking / smoking) woman?

Are these powers then totally invalidated by same woman suggesting that she does not wish to continue the pregnancy and will be leaving the country to end it, given that we have granted that right explicitly?

Child benefit surely to be backdated to the coming into existence of the unborn. That poorly defined being. My atomic interpretation suggests that I can make multiple, if not infinite claims for such.

Will we need to have all females take pregnancy tests at time of arrival into the state to ensure that valid visas or visa waivers are completed and paid for? Could be lucrative I guess, but the queues will be annoying.

IVF clinics must be worried.

Does this 2009 precedent become obsolete now too? http://humanrights.ie/constitution-of-ireland/pre-implantation-embryos-and-the-irish-constitution/
--

Will this ruling force the SC to define some of the more ambiguous terms at appeal?

Or can they just disagree with the interpretation and sweep it under the rug?

Repeal the 31st?

Absolam

recedite wrote: »

Because if you did acknowledge that such a scenario could exist, it would undermine your argument here. And yet the legislation clearly legalises abortion even before such a scenario developed, because the mother's life would be put at risk.

I don't think it would; such a scenario would not oblige a doctor to prioritise one patient over the other, or affect their existing equal rights to life, in all likelihood (if investigated) the Doctor would be obliged to explain how their decision and actions had complied with their obligation to preserve the lives of both their patients. Nor have you shown that the legislation clearly (or even unclearly) legalises any of what you're presenting at all; you've not once specified where the legislation obliges a doctor to prioritise a patient, or even referred to anything specific in the legislation.

recedite wrote: »

Examples might be some sort of auto-immune response, similar to Rhesus+ or perhaps an abdominal ectopic pregnancy in the early stages. Its not for me or for the legislation to list every possible medical scenario. The point is, the legislation now authorises abortion where this risk to the mothers life exists. That was not the case when we only had the 8th combined with the 1861 Offences Against the Person Act.

The legislation specifically permits the destruction of unborn human life in the specific circumstances I set out earlier (the ones which require the Doctor to have regard to the need to preserve unborn human life as far as practicable). And in the X Case the SC ruled that with the 8th and the OAPA in place abortion was permissible in certain circumstances, regardless of the fact that the Government hadn't legislated for it. The difference the POLDPA made was to provide an accessible and effective procedure to enable women to establish whether they are qualified for a lawful termination of their pregnancy in accordance with Article 40.3.3, provide information on when terminating a pregnancy is lawful, still in accordance with Article 40.3.3, create procedures which apply to the lawful termination of pregnancy, and amend criminal law to provide an offense when such a termination is carried out unlawfully. Nothing about prioritising I'm afraid.

recedite wrote: »

The X-case did not create this new priority of the mother over the foetus either. It was a new departure in 2013. So effectively we have changed the constitution, not by referendum, but by changing the state's interpretation of the meaning of words such as "where practicable" so that it now means "unless the mothers life is at risk". Just like the Mad Hatter would.

The POLDPA didn't create a new priority of the mother over the foetus either There is no reason to imagine the words 'where practicable' do, or ever have, mean anything other than where able to be done or put into practice successfully given the circumstances. The risk to the mothers life is already specified in the legislation (i.e. It shall be lawful to carry out a medical procedure in respect of a pregnant woman in accordance with this section in the course of which, or as a result of which, an unborn human life is ended where two medical practitioners, having examined the pregnant woman, have jointly certified in good faith that there is a real and substantial risk of loss of the woman’s life from a physical illness, and in their reasonable opinion (being an opinion formed in good faith which has regard to the need to preserve unborn human life as far as practicable) that risk can only be averted by carrying out the medical procedure) so it's rather difficult to see why you imagine it would need to be referred to twice, using completed unrelated words, in the same sentence.

The Oireacthas, Attorney Generals Office and general populace remain only Mad Hatters in the only place Mad Hatters exist; a fantasy.

Absolam

Deleted User wrote: »

Dragging the conversation back to this if possible. The contrasting precedent of this case 'Baby O' (importantly prior to the 2012 cited constitutional change) should provide for some very interesting conclusions upon appeal imo.
What powers does this interpretation give to the state in the case of an irresponsibly pregnant (drinking / smoking) woman?
Are these powers then totally invalidated by same woman suggesting that she does not wish to continue the pregnancy and will be leaving the country to end it, given that we have granted that right explicitly?
Child benefit surely to be backdated to the coming into existence of the unborn. That poorly defined being. My atomic interpretation suggests that I can make multiple, if not infinite claims for such.
Will we need to have all females take pregnancy tests at time of arrival into the state to ensure that valid visas or visa waivers are completed and paid for? Could be lucrative I guess, but the queues will be annoying.
IVF clinics must be worried.
Does this 2009 precedent become obsolete now too?
--
Will this ruling force the SC to define some of the more ambiguous terms at appeal?
Or can they just disagree with the interpretation and sweep it under the rug?
Repeal the 31st?

As I said, I think more is being read into this than needs to be. Justice Humphreys didn't rule on any of the above, so none of it is actually affected by his ruling; no new powers have been created, no one is going to start giving away piles of cash, no one acquired the right to life that didn't have it before. His ruling will be part of jurisprudence, and his opinion may indicate similar thinking amongst the judiciary (and equally may not).

Personally, I think the enactment of 42a and opinions such as Justice Humphreys are simply indicative of a move away from any notion that rights should be withheld from children as being the objects of parental rights and duties, and instead can be taken up as autonomous rights holders; as societies in general become more affluent and the facility to reduce infant and child mortality increases along with the degree of education we can provide, and social supports grow more sophisticated and prevalent, there is less need to withhold participation from people who have increasing facility to cope with it.

Maybe in a few decades time we'll be discussing whether or not a five year old can make a truly informed and responsible decision in a referendum, and if they can why shouldn't they.

Absolam

Absolam wrote: »

As I said, I think more is being read into this than needs to be. Justice Humphreys didn't rule on any of the above, so none of it is actually affected by his ruling; no new powers have been created, no one is going to start giving away piles of cash, no one acquired the right to life that didn't have it before. His ruling will be part of jurisprudence, and his opinion may indicate similar thinking amongst the judiciary (and equally may not). .

He has asserted that the unborn is legally included in the phrase 'All Children'.

Therefore any legislation that uses that term should surely apply to the unborn.

Given that we have no legal definition of the unborn, this is a terribly interesting development.

Absolam wrote: »

Personally, I think the enactment of 42a and opinions such as Justice Humphreys are simply indicative of a move away from any notion that rights should be withheld from children as being the objects of parental rights and duties, and instead can be taken up as autonomous rights holders; as societies in general become more affluent and the facility to reduce infant and child mortality increases along with the degree of education we can provide, and social supports grow more sophisticated and prevalent, there is less need to withhold participation from people who have increasing facility to cope with it.

I agree, the more capable a being is the more rights we can afford them to the benefit of society.

Absolam wrote: »

Maybe in a few decades time we'll be discussing whether or not a five year old can make a truly informed and responsible decision in a referendum, and if they can why shouldn't they.

Absolam

Deleted User wrote: »

He has asserted that the unborn is legally included in the phrase 'All Children'. Therefore any legislation that uses that term should surely apply to the unborn. Given that we have no legal definition of the unborn, this is a terribly interesting development.

Well, to be fair he reportedly said Article 42a of the Constitution, provides the State must protect “all” children, and that because an “unborn” is “clearly a child”, article 42a means all children “both before and after birth”. It's not quite an assertion that any legislation using the term child must apply to the unborn, or even that it must apply to them before they are born. Your 'therefore' is probably more than a bit of a leap....

Deleted User wrote: »

I agree, the more capable a being is the more rights we can afford them to the benefit of society.

Well, I don't think I mentioned capability; I said the facility to cope with. I'd be pleased if you agreed that not withholding the right to life from human beings with the facility to cope with it is the right thing to do, but I suspect you don't

Absolam

Absolam wrote: »

Well, to be fair he reportedly said Article 42a of the Constitution, provides the State must protect “all” children, and that because an “unborn” is “clearly a child”, article 42a means all children “both before and after birth”. It's not quite an assertion that any legislation using the term child must apply to the unborn, or even that it must apply to them before they are born. Your 'therefore' is probably more than a bit of a leap....

One parent turns up at a Garda station today and shows the Garda flight tickets booked to Switzerland and a booking at Dignitas, a single ticket home in their name only and announces their intention. The Garda immediately ...........

A pregnant woman turns up at the same police station with a ticket to England,a booking at a Marie Stopes clinic and a return flight home and announces their intention. The Garda immediately ...........

Líon na bearnaí under the interpretation above.

Absolam

Deleted User wrote: »

One parent turns up at a Garda station today and shows the Garda flight tickets booked to Switzerland and a booking at Dignitas, a single ticket home in their name only and announces their intention. The Garda immediately ...........

A pregnant woman turns up at the same police station with a ticket to England,a booking at a Marie Stopes clinic and a return flight home and announces their intention. The Garda immediately ...........

Líon na bearnaí under the interpretation above.

You'll have to make your own arguments I'm afraid, sorry

Absolam

Absolam wrote: »

You'll have to make your own arguments I'm afraid, sorry

I would suggest that the Garda might have slightly different reactions, would you not agree?

Article 42 wrote:

2.1° In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

Which seems unfair to the unborn in the context of the above if indeed the above does apply to the unborn as the latest case has suggested.

Absolam

Deleted User wrote: »

I would suggest that the Garda might have slightly different reactions, would you not agree?
Which seems unfair to the unborn in the context of the above if indeed the above does apply to the unborn as the latest case has suggested.

It's hard to say since you haven't provided a plethora of information, though I suspect in both cases the Garda might be wondering why someone decided to turn up in their station and 'announce their intention'. Still, I'm not sure the case has suggested it; the Judge has reportedly said that Article 42a means all children “both before and after birth”. I don't think such a statement is sufficient to cause any reevaluation of the application of legislation; he certainly does not appear to have ordered any such thing to take place. Since he also reportedly said "the Minister for Justice must consider not just the right to life of the unborn but also the legal rights the child will acquire on birth" he would appear to be saying there are issues to be considered, rather that ordering that anything (other than the Minister’s undertaking not to deport the man should continue ) actually happen, as far as I can see. I doubt the AG, nor less the Gardai, will be spurred into any precipitous action by his opinion to be honest.

Article 42

Article 42 wrote:

2.1° In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

The judge said that this article applies to the unborn did he not?

Which surely suggests that the if the State would intervene in the case of the woman heading to Dignitas with her born child, then that same intervention must be available to (and indeed exercised by) the State in the case heading to Marie Stopes with her unborn.

recedite

Absolam wrote: »

The POLDPA didn't create a new priority of the mother over the foetus either There is no reason to imagine the words 'where practicable' do, or ever have, mean anything other than where able to be done or put into practice successfully given the circumstances. The risk to the mothers life is already specified in the legislation (i.e. It shall be lawful to carry out a medical procedure in respect of a pregnant woman in accordance with this section in the course of which, or as a result of which, an unborn human life is ended where two medical practitioners, having examined the pregnant woman, have jointly certified in good faith that there is a real and substantial risk of loss of the woman’s life from a physical illness, and in their reasonable opinion (being an opinion formed in good faith which has regard to the need to preserve unborn human life as far as practicable) that risk can only be averted by carrying out the medical procedure)

It seems clear enough from the wording that if it is practicable to save both lives, that should be done (as per the Y-case)
But if the the development of the foetus itself was posing a a threat to the mother (as per my example) then the abortion would go ahead. That effectively assigns a clear priority to the mother.

I'm surprised you keep denying this. A lot of women and their partners going into maternity hospitals would be quite angry to discover there was doubt in some peoples minds that the woman's life had priority over the foetus in the event of a conflict of interests, despite the 2013 legislation.

smacl

Deleted User wrote: »

The judge said that this article applies to the unborn did he not?

Which surely suggests that the if the State would intervene in the case of the woman heading to Dignitas with her born child, then that same intervention must be available to (and indeed exercised by) the State in the case heading to Marie Stopes with her unborn.

Yep, but then the government would have to dig their head out of the sand and face up to the fact that unrestricted abortion is both available to the people of this country and availed of on a regular basis, just not within the jurisdiction. The notion that the unborn enjoys the same rights as as a born child or adult is clearly rubbish in that it is only in exceptional cases that these rights are upheld. The only women that can't avail of abortion in Ireland are those either too sick or too poor to travel, so as usual the most vulnerable in our society get dumped on from a great height by dogmatic Catholic hard-liners who will never have to face the problem first hand. The hypocrisy of it is sickening.

aloyisious

These two concepts [as the writer has said] are for the future decades....

1. Personally, I think the enactment of 42a and opinions such as Justice Humphreys are simply indicative of a move away from any notion that rights should be withheld from children as being the objects of parental rights and duties, and instead can be taken up as autonomous rights holders; as societies in general become more affluent and the facility to reduce infant and child mortality increases along with the degree of education we can provide, and social supports grow more sophisticated and prevalent, there is less need to withhold participation from people who have increasing facility to cope with it.

2. Maybe in a few decades time we'll be discussing whether or not a five year old can make a truly informed and responsible decision in a referendum, and if they can why shouldn't they.

The first would mean the state would have to accept that parental rights, duties and obligations must be reduced within law and the offsprings rights increased. It would probably also mean the state's duty or obligation to interfere in the offsprings affairs must be reduced. Somehow I see a lot of Important Irish adults poo-pooing that idea.

The second sound's most enlightened given that citizens must be over 18 to vote and we've voted by referendum to keep the age of presidential candidate at 35 in the constitution.

Personally I think the concepts are excellent japes and commend the writer for authoring them.

Absolam

Deleted User wrote: »

The judge said that this article applies to the unborn did he not?
Which surely suggests that the if the State would intervene in the case of the woman heading to Dignitas with her born child, then that same intervention must be available to (and indeed exercised by) the State in the case heading to Marie Stopes with her unborn.

He certainly was reported as saying that Article 42a means all children “both before and after birth”; how he thinks Article 42a 1 could would or should be applied to a child prior to their being born seems to have gone unremarked though.
So, 'Surely suggests' seems like a bit of a stretch; at best the suggestion is that Justice Humphrey is of the opinion that the State may be held to obligations as yet unstated. That's not much of a basis for leaping to conclude the State is suddenly going to change how it behaves, or even would behave as you suggest absent the Judges statement. I think putting 'surely', 'suggests', 'if' and 'must' all together just gives you an extravagance of extrapolation over substance.

All in all, if we consider the facts what we have is a statement reportedly made by a High Court Judge and nothing else, at the moment.

Absolam

recedite wrote: »

But if the the development of the foetus itself was posing a a threat to the mother (as per my example) then the abortion would go ahead. That effectively assigns a clear priority to the mother.

How, exactly? If the mothers life is at risk, and the unborn cannot be saved, then the mothers life will be saved. If the mothers life is at risk, and the unborn can be saved, then both lives will be saved. I can't see any priority being assigned there, nor are you even attempting to show where there is a priority assigned in the legislation. You are however moving from " the legislation gives priority to the mother" to "that effectively assigns a clear priority to the mother".

recedite wrote: »

I'm surprised you keep denying this. A lot of women and their partners going into maternity hospitals would be quite angry to discover there was doubt in some peoples minds that the woman's life had priority over the foetus in the event of a conflict of interests, despite the 2013 legislation.

I don't know why you think I'm denying anything, but I'm surprised you're saying the legislation does something without ever even trying to show where exactly the legislation does it. You're presenting this priority notion without presenting any basis for it, and it's certainly at odds with what is specifically set out in the legislation, which I have presented. Certainly the idea that people would in your opinion would be angry to discover mothers aren't prioritised is no basis at all for saying that they are, or that the legislation says they are.

Absolam

aloyisious wrote: »

These two concepts [as the writer has said] are for the future decades....
The first would mean the state would have to accept that parental rights, duties and obligations must be reduced within law and the offsprings rights increased. It would probably also mean the state's duty or obligation to interfere in the offsprings affairs must be reduced. Somehow I see a lot of Important Irish adults poo-pooing that idea.
The second sound's most enlightened given that citizens must be over 18 to vote and we've voted by referendum to keep the age of presidential candidate at 35 in the constitution.
Personally I think the concepts are excellent japes and commend the writer for authoring them.

The first is actually the background to which Article 42a was proposed and enacted; it's how Aoife Nolan described it in 2007 in "The Battle(s) over Children's Rights in the Irish Constitution", so in fact, children did as a result of the Article cease (to a degree) to be the objects of parental rights and duties, becoming autonomous rights holders (again, to a degree). No doubt people poo poo'ed it at the time, but there's no reason to think we won't see further liberalisation in the future.
The second I think could more aptly (if not modestly) be described as visionary rather than enlightened, even if it's nothing new; there's already a campaign underway to lower the voting age to 16, both in Ireland and Europe, so it's really only an extrapolation from what is currently happening.

seamus

Absolam wrote: »

I can't see any priority being assigned there, nor are you even attempting to show where there is a priority assigned in the legislation. You are however moving from " the legislation gives priority to the mother" to "that effectively assigns a clear priority to the mother".

Because there are no circumstances under which the state will forcibly end the life of a mother to save her unborn child.
Therefore in any "one or the other" scenario, the state automatically chooses the life of mother, which is implicitly stating that the mother's right to life supersedes the unborn's.

Automatically - i.e. not after a debate or a court order.

Absolam

seamus wrote: »

Because there are no circumstances under which the state will forcibly end the life of a mother to save her unborn child.
Therefore in any "one or the other" scenario, the state automatically chooses the life of mother, which is implicitly stating that the mother's right to life supersedes the unborn's.
Automatically - i.e. not after a debate or a court order.

That doesn't support Recedites assertion that the legislation gives priority to the mother though. I don't know that the State will 'automatically' do anything at all without some legal basis, so I think that's a bit of a struggle to make the case for, but I'd be intrigued to see what evidence you'd support your idea with? If you can establish the premise, I'd love to discuss whether it does implicitly state something, though obviously a statement implicit in an action isn't a statement in legislation.

I wonder; are there circumstances under which forcibly ending the life of a mother would save her unborn child? I can't see how, if the child is capable of surviving outside the womb, there would ever be a need for a doctor to kill the mother (though I can see how a mother, or child, could die despite a doctors best efforts). And if it's not capable of surviving outside the womb, then how would killing the mother save the childs life? Perhaps there is some precedent we can see where the State took such an automatic action, without a debate or a court order?

I think, when we get to considering things that are done 'automatically' and without debate or court order we've moved, as I said, beyond the notion that this is in fact in legislation, but it's certainly an interesting proposition.

Absolam

Absolam wrote: »

He certainly was reported as saying that Article 42a means all children “both before and after birth”; how he thinks Article 42a 1 could would or should be applied to a child prior to their being born seems to have gone unremarked though.
So, 'Surely suggests' seems like a bit of a stretch; at best the suggestion is that Justice Humphrey is of the opinion that the State may be held to obligations as yet unstated. That's not much of a basis for leaping to conclude the State is suddenly going to change how it behaves, or even would behave as you suggest absent the Judges statement. I think putting 'surely', 'suggests', 'if' and 'must' all together just gives you an extravagance of extrapolation over substance.

All in all, if we consider the facts what we have is a statement reportedly made by a High Court Judge and nothing else, at the moment.

Yes, and some of us are pondering as to what the ramifications of such a statement might be. If you don't want to participate, that is fine.

The conditionals have been clear in all of my posts.

If what the Judge has said is indeed true, the State has been neglecting its duties and obligations for quite some time now.

I hesitate to draw a comparison to the persons involved, but the inability to engage the possibilities and ramifications of such a consideration is quite reminiscent of a video I posted quite recently.

Absolam

Deleted User wrote: »

If what the Judge has said is indeed true, the State has been neglecting its duties and obligations for quite some time now.

If the Judges opinion is found to be legally accurate, the State may well find it has some obligations it wasn't aware of previously, which would be interesting. Though what he has reportedly said doesn't really go any way towards setting out exactly what those obligations may be. Certainly, it hasn't given us any reason to think his opinion has given the State any new powers, or that ivf clinics are worried. Whether it may have any ramifications is interesting to ponder, but maybe not a basis for presenting infinite claims at the Dept of Social Protection.

Absolam

Absolam wrote: »

If the Judges opinion is found to be legally accurate, the State may well find it has some obligations it wasn't aware of previously, which would be interesting. Though what he has reportedly said doesn't really go any way towards setting out exactly what those obligations may be. Certainly, it hasn't given us any reason to think his opinion has given the State any new powers, or that ivf clinics are worried. Whether it may have any ramifications is interesting to ponder, but maybe not a basis for presenting infinite claims at the Dept of Social Protection.

That wasn't so hard was it?

It appears we have agreement!

smacl

seamus wrote: »

Because there are no circumstances under which the state will forcibly end the life of a mother to save her unborn child.
Therefore in any "one or the other" scenario, the state automatically chooses the life of mother, which is implicitly stating that the mother's right to life supersedes the unborn's.

But there's a difference between forcibly ending the mothers life, and not interceding in a timely fashion to save it because to do so might put the unborn at risk. This was shown by the Savita case and illustrates what a shambles we are currently in.

seamus

smacl wrote: »

But there's a difference between forcibly ending the mothers life, and not interceding in a timely fashion to save it because to do so might put the unborn at risk. This was shown by the Savita case and illustrates what a shambles we are currently in.

Oh I agree and it's what the most recent legislation was designed to address. By all accounts it does that job albeit in a clunky way and is often too bureaucratic or poorly understood to be applied in a timely manner.

The POLDPA makes it lawful to "end an unborn human life" where there is a risk to the life of the mother.

There is no mirrored provision in law anywhere that makes it legal to end a human life where there is a risk to the life of the unborn.*

Therefore the POLDPA implicitly puts the right to life of the mother above that of the unborn.

*Absolam is correct in that the number of scenarios in which forcibly killing the mother to save the unborn would be miniscule, but nevertheless it's not an option that's ever considered - the mother's right to life is considered superior by natural law - so there are basically no examples of it happening.

recedite

Absolam wrote: »

How, exactly? If the mothers life is at risk, and the unborn cannot be saved, then the mothers life will be saved. If the mothers life is at risk, and the unborn can be saved, then both lives will be saved. I can't see any priority being assigned there..

You keep changing back to your preferred scenario, as above. In my hypothetical scenario, the unborn can be saved. But allowing the pregnancy to continue puts the mothers life at risk. The PLDP Act allows abortion in that scenario, but the 8th amendment does not.

smacl wrote: »

But there's a difference between forcibly ending the mothers life, and not interceding in a timely fashion to save it because to do so might put the unborn at risk. This was shown by the Savita case and illustrates what a shambles we are currently in.

The Savita case is not actually a good example because the foetus could not be saved anyway. Therefore abortion was allowed, as per Absolams argument above. Even though the hospital chose not to make that option available to her. In the end there was a finding of negligence and a cash award was made to the husband.

volchitsa

recedite wrote: »

You keep changing back to your preferred scenario, as above. In my hypothetical scenario, the unborn can be saved. But allowing the pregnancy to continue puts the mothers life at risk. The PLDP Act allows abortion in that scenario, but the 8th amendment does not.

Surely the 8th takes priority though? (This may be the point you're making, apologies if so, I'm only dipping in at the moment) but if POLDPA allows terminations where the 8th does not, then it's the POLDPA which is unconstitutional and has to go. I think.

recedite wrote: »

The Savita case is not actually a good example because the foetus could not be saved anyway. Therefore abortion was allowed, as per Absolams argument above. Even though the hospital chose not to make that option available to her. In the end there was a finding of negligence and a cash award was made to the husband.

Which article in the law allows doctors to take this into account when deciding whether or not to end a pregnancy please?

(As for the cash award, the hospital chose not to go to court, so there was no finding of negligence that I'm aware of.)

alaimacerc

recedite wrote: »

You keep changing back to your preferred scenario, as above. In my hypothetical scenario, the unborn can be saved. But allowing the pregnancy to continue puts the mothers life at risk. The PLDP Act allows abortion in that scenario, but the 8th amendment does not.

The 8th does, and since '92 has done, at least in theory. X Case judgement.

Absolam

seamus wrote: »

There is no mirrored provision in law anywhere that makes it legal to end a human life where there is a risk to the life of the unborn.*
Therefore the POLDPA implicitly puts the right to life of the mother above that of the unborn.

*Absolam is correct in that the number of scenarios in which forcibly killing the mother to save the unborn would be miniscule, but nevertheless it's not an option that's ever considered - the mother's right to life is considered superior by natural law - so there are basically no examples of it happening.

Mmm... I don't think the POLDPA was ever intended to address a theoretical situation where forcibly killing the mother to save the unborn would occur, so the fact that it doesn't address it can't really reasonably be construed as implying a perspective on it, any more than the Road Traffic Act not mentioning it implies a perspective.

Now, I haven't come across the notion that a mother's right to life is considered superior to her child's in natural law (though at first glance it might seem a handy suggestion if pressed for evidence of the State actually acting as you've said it does), but I suppose it's possible some philosopher may well have suggested it at some point. I very much doubt the State would accept it as a legal basis for anything other than establishing positive law (which it clearly has not done), never mind act 'automatically' on it. In fact, so far such natural law as has been acceptable to the SC has been of a decidedly Christian flavour, which may not bode well for even the possibility of a future finding of such a right. I think, therefore, the idea that in any "one or the other" scenario, the state automatically chooses the life of mother, which is implicitly stating that the mother's right to life supersedes the unborn's, is a bit of a dead duck so far.

Absolam

recedite wrote: »

You keep changing back to your preferred scenario, as above. In my hypothetical scenario, the unborn can be saved. But allowing the pregnancy to continue puts the mothers life at risk. The PLDP Act allows abortion in that scenario, but the 8th amendment does not.

I haven't actually changed the scenario; I did point out earlier that your original hypothetical appears to have no basis in reality, and offered more realisitic possibilities. In this particular version you're presenting if the life of the unborn can be preserved as you say, it must be, the mother and infant can be separated averting the real and substantial risk to the mother and saving them both. If, contrary to your hypothetical, there is a real and substantial risk to the life of the mother, and the child cannot be saved, then it is permissible to save the life of the mother since, as I've said before, the child will die either way. But rather than just going over the same ground, we could just cut to the quick; you could simply show where the text of the POLDPA gives priority to the life of the mother over the child, if you can. It would appear to be the only way to make your point.

alaimacerc

Absolam wrote: »

I haven't actually changed the scenario; I did point out earlier that your original hypothetical appears to have no basis in reality, and offered more realisitic possibilities.

Ah, you didn't "change" the scenario, you merely "corrected" it. Apologies, not all of us as so fluent in Newspeak.

In this particular version you're presenting if the life of the unborn can be preserved as you say, it must be, the mother and infant can be separated averting the real and substantial risk to the mother and saving them both.

Is "infant" the latest word we're attempting to astroturf into the antenatal realm? That aside, you're still not addressing rece's actual case as posited, nor are you actually pointing out any actual problem with it.

But rather than just going over the same ground, we could just cut to the quick;

Idioms, mix and match...

alaimacerc

Absolam wrote: »

Mmm... I don't think the POLDPA was ever intended to address a theoretical situation where forcibly killing the mother to save the unborn would occur, so the fact that it doesn't address it can't really reasonably be construed as implying a perspective on it, any more than the Road Traffic Act not mentioning it implies a perspective.

You make this sound like happenstance; in reality, it doesn't address this because there's absolutely no constitutional basis on which it could do so.

Now, I haven't come across the notion that a mother's right to life is considered superior to her child's in natural law (though at first glance it might seem a handy suggestion if pressed for evidence of the State actually acting as you've said it does), but I suppose it's possible some philosopher may well have suggested it at some point. I very much doubt the State would accept it as a legal basis for anything other than establishing positive law (which it clearly has not done), never mind act 'automatically' on it.

I don't know about "natural law", but there's certainly "common law", and there's most certainly also "actual public opinion once you've sand-blasted the veneer of hand-wringing and compatibilist blather off of it".