Abortion Discussion, Part Trois

aloyisious · 06-05-2017 1:24pm

Simon Coveney on RTE radio 1 right now saying he was asked yesterday in an interview and told the interviewer that he was not happy with the assembly report, that he gave it straight answers, and that the Dail committee would be examining the report next week.

Absolam · 06-05-2017 1:26pm

volchitsa wrote: »

The right? Because there's only one?
Where is the right of a person defined in the constitution then?

As far as I know there's only one personal right that the Constitution affords the unborn.... and I think you know it too. Are you just attempting a little word play to wriggle out of specifics again?

The right to life of the unborn is listed as a personal right; that's a right belonging or pertaining to a person.

volchitsa wrote: »

It gives a right to life, which by the way is not the right of a person, who don't have that right at all. That's why the life support machine of a non pregnant woman could be switched off on the advice of her doctors, but the right to life of the fetus made them afraid to do so. If the baby had been born it would no longer have that right either.

It certainly does. Amongst which rights does it enumerate that right can you recall? Are there any of them in that category (Personal Rights, I think you'll find), other than the one you object to, which aren't the rights of a person? To pre-empt any pointless dissembling, I'm going to be straightforward and say that where those rights are assigned to citizens, I don't believe being a citizen excludes someone from being a person as well, just as being unborn doesn't exclude someone from being a person.
And whilst I agree a brain dead corpse probably doesn't have a right to a life which it had when alive, I don't think that in any way obviates the right to life of the unborn. That seems to be thrown in purely for misdirection, if you don't mind my saying so.

volchitsa wrote: »

This is just silly and irrelevant. You may have nothing else to do with your life. I do.

I did have a feeling once we were talking specifics rather than your 'logical' extrapolations you would find there were constraints on your time, and, given the specific consequences of killing people I put forward, I can see why you'd think it's silly and irrelevant to consider them, when they're so at odds with your own ideas about the automatic consequences of killing people.

aloyisious · 06-05-2017 2:00pm

looksee · 06-05-2017 2:14pm

https://atheist.ie/2017/04/hospital-assets-canon-law/ and here (including the response) the IT article is behind a paywall.

looksee · 06-05-2017 2:59pm

I would only highlight a link for the purpose of c/p ing it. Your second link does go to the full article, the first one does not.

aloyisious · 06-05-2017 3:04pm

looksee wrote: »

I would only highlight a link for the purpose of c/p ing it. Your second link does go to the full article, the first one does not.

Oh yeah, the Mr Justice Humphreys link..... Hopefully others will see it as it's also within the 2nd link.

looksee · 06-05-2017 3:05pm

The point about the ownership of the hospital(s) if an order of nuns ceased to exist had occurred to me too. I think the whole question of ownership is going to require complex legal negotiation in the near future, but in the meantime, why add another property to the portfolio of a failing institution?

Edit, sorry, posted in the wrong thread.

aloyisious · 06-05-2017 3:25pm

looksee wrote: »

The point about the ownership of the hospital(s) if an order of nuns ceased to exist had occurred to me too. I think the whole question of ownership is going to require complex legal negotiation in the near future, but in the meantime, why add another property to the portfolio of a failing institution?

I've replied in the "Sisters to get ownership of new NMH" thread. Re your's above, that'll take some years, even without deliberate obfuscation by any of the players.

One eyed Jack · 06-05-2017 3:32pm

volchitsa wrote: »

Posting something that doesn't prove what you say it does can be an honest mistake.

Reposting it after your mistake has been pointed out to you is usually dishonest.

To repeat what was said to you the first time, and which you didn't refute:
The death certificate was being considered on the basis that the baby had been "born" during the autopsy, i.e. birth is required. And in any case, no certificate was issued in the end - because being removed from the womb, dead, is not legally a birth.

So your article does not illustrate the conclusion you claim it does at all

What exactly is it you think I'm claiming? The reason I didn't refute your assertions the first time is because I thought you had understood I wasn't using that case to make a claim of personhood, but that I was pointing out that it could be argued, that the unborn is a person in that context, entitled to the legal status of personhood, and recognition of their existence in law as an individual legal entity separate from that of the mother.

I also thought we both agreed that it would have made an interesting case had the case moved forward if Mr. Enright had decided not to drop the case. You speculated then whether he had been 'encouraged' to drop the case, and because I wasn't willing to join you in speculating, I let it drop.

King Mob wrote: »

They are additional issues with your position.

Firstly: The right to life does not imply either citizenship or personhood. There is nothing that specifically does grant a fetus either citizenship or personhood. Similarly, personhood and citizenship are not interchangeable or imply each other.

Secondly: There is nothing else beyond your interpretation of this article that indicates that a fetus has citizenship, or (the actual point remember) personhood. If this part of the article did not exist, you would not even have this tenuous foundation.

Thirdly, as looksee said: Your argument is self contradictory. If fetuses were citizens/persons then there'd be no need for a specific mention, they would be included in the rights already extended to citizens and persons.
The specific mention is an admission that fetuses are an exceptional case.

I asked you to explain your position based on these issues.
So:
If the provision in article 40 didn't exist, what would show that a fetus is a person/citizen?

If a fetus is considered a person/citizen, then what purpose does the section of the article serve and why is it needed?

Your argument is left wanting for the fact that you're quite right in that the foetus as such doesn't have any legal recognition, but the unborn has quite specific legal recognition and definition -

“unborn”, in relation to a human life, is a reference to such a life during the period of time commencing after implantation in the womb of a woman and ending on the complete emergence of the life from the body of the woman;

“woman” means a female person of any age.

The reason for the distinction is an acknowledgment of of the status of human life before and after birth, and the right to life wouldn't be rescinded upon birth either. This is an important consideration in the context of the recommendations of the Citizens Assembly because in order to implement their recommendations, it would first be required that the right to life of the unborn be rescinded, while maintaining the right to life of born human life, and the only way to do that as we know, would be through a referendum. I don't think the Government will ever offer the people that option in a referendum, and would prefer to leave it to the Courts to interpret the law in this area, depending upon the context and circumstances of each case.

King Mob · 06-05-2017 3:53pm

One eyed Jack wrote: »

Your argument is left wanting for the fact that you're quite right in that the foetus as such doesn't have any legal recognition, but ...

You've ignored the point and dodged the questions.

No interest in nitpicking arguments if all of my points are to be ignored.

There is nothing in the law that grants personhood to a fetus or the unborn, contrary to claims made here.

One eyed Jack · 06-05-2017 4:07pm

King Mob wrote: »

You've ignored the point and dodged the questions.

No interest in nitpicking arguments if all of my points are to be ignored.

There is nothing in the law that grants personhood to a fetus or the unborn, contrary to claims made here.

I'm not ignoring your point, nor am I dodging the question. You're asking for certainties in law where I've pointed out that the law is open to interpretation in this area depending upon the circumstances and context of each case.

volchitsa · 06-05-2017 4:21pm

One eyed Jack wrote: »

I'm not ignoring your point, nor am I dodging the question. You're asking for certainties in law where I've pointed out that the law is open to interpretation in this area depending upon the circumstances and context of each case.

Look the claim being made, before you joined in, was that un our constitution the fetus is a person and as such entitled to protection under laws about self defence or defence from attack, as you or I would be.

I'm saying that while the fetus clearly does have some rights, it is not at all the case that it has those rights because "it's a person", nor that its rights are even the same as those of people or citizens.

I don't need to go any farther to determine what rights it may have nor why, because I didn't make the original claim.

I don't know what argument you thought you were joining in with, but it's not that the law is certain.

Nobody is denying that the law is unclear and open to interpretation, well, not the pro choice side of the discussion anyway - but that's not the point.

King Mob · 06-05-2017 4:27pm

One eyed Jack wrote: »

I'm not ignoring your point, nor am I dodging the question. You're asking for certainties in law where I've pointed out that the law is open to interpretation in this area depending upon the circumstances and context of each case.

No, I'm asking you clear direct questions of fact.

Can you point to anything else at all in the law that grants personhood to a fetus(/unborn or whatever nitpicking term you'd like)?

It's a yes or no question. You don't want to say "no", so you're avoiding the question.

The only part of the law you can point to requires your tenuous interpretation of it, so we are lead to the other point you ignore:

If a fetus(/unborn) is considered a person/citizen, then what purpose does the section of the article serve and why is it needed?
Why isn't it already covered in the rights already extended to other persons? Why does it need a specific, special exception if it's a person and clearly so?

Remember your claim was:

One eyed Jack wrote: »

The very first line recognises the unborn as a legal person?

1 All citizens shall, as human persons, be held equal before the law.

The unborn is a citizen of Ireland, and has legal recognition bestowed upon them on that basis in the context of Article 40. That right is as far as practicable defended and vindicated by our laws.

Do you still stand by this interpretation?

One eyed Jack · 06-05-2017 4:47pm

King Mob wrote: »

No, I'm asking you clear direct questions of fact.

Can you point to anything else at all in the law that grants personhood to a fetus(/unborn or whatever nitpicking term you'd like)?

It's a yes or no question. You don't want to say "no", so you're avoiding the question.

The only part of the law you can point to requires your tenuous interpretation of it, so we are lead to the other point you ignore:

If a fetus(/unborn) is considered a person/citizen, then what purpose does the section of the article serve and why is it needed?
Why isn't it already covered in the rights already extended to other persons? Why does it need a specific, special exception if it's a person and clearly so?

I've already explained to you that the foetus isn't specifically recognised in law! The unborn has a specific legal definition in Irish law, so it's not me nit-picking or using whatever term I like, it's you who is using terminology outside of the context of any legal interpretation. You must surely be aware that the foetus is a medical term that refers to the development of human life from the 8th week gestation to birth. The term 'unborn' refers to the development of human life from implantation to birth, in Irish law.

I don't need to say yes or no to your question because it simply doesn't arise. You're talking about me ignoring your questions, but you're purposely ignoring the law as it is currently written, in order to propose the question!

I've already answered why the specific term is used in relation to the unborn and why the distinction in law exists, but you appear to have chosen to ignore that too.

King Mob wrote: »

Remember your claim was:

Do you still stand by this interpretation?

Yes I do. If you'd care to present an argument to refute my interpretation, I'm all ears.

King Mob · 06-05-2017 5:01pm

One eyed Jack wrote: »

I've already explained to you that the foetus isn't specifically recognised in law! The unborn has a specific legal definition in Irish law, so it's not me nit-picking or using whatever term I like, it's you who is using terminology outside of the context of any legal interpretation. You must surely be aware that the foetus is a medical term that refers to the development of human life from the 8th week gestation to birth. The term 'unborn' refers to the development of human life from implantation to birth, in Irish law.

It's nitpicking because you know what I mean and the distinction has no baring on any of my points.

One eyed Jack wrote: »

I don't need to say yes or no to your question because it simply doesn't arise. You're talking about me ignoring your questions, but you're purposely ignoring the law as it is currently written, in order to propose the question!

No, I'm pointing how your interpretation of the article is the only basis for your claim.
Can you present any other parts of the law besides this to back up your assertion?

One eyed Jack wrote: »

I've already answered why the specific term is used in relation to the unborn and why the distinction in law exists, but you appear to have chosen to ignore that too.

No, you haven't at all. You made a random nonsense claim then went on a complete tangent about the citizen's assembly.

You also have not addressed the second part of the question at all.

One eyed Jack wrote: »

Yes I do. If you'd care to present an argument to refute my interpretation, I'm all ears.

A right to life does not equal citizenship nor does either of these things equate to personhood, which again is the point.

Why do you think that a right to life is the same thing as granting personhood and citizenship?
Especially since you are clearly wrong about the unborn getting citizenship?

One eyed Jack · 06-05-2017 5:11pm

King Mob wrote: »

It's nitpicking because you know what I mean and the distinction has no baring on any of my points.

It's not nit-picking, because it's an incredibly important definition, particularly if you're trying to argue that in spite of it's status as a separate legal entity with it's own legal identity and the inherent protections of the right to life, the unborn could not be considered a person in a legal context.

The rest of your post I won't address because I think I've made the point numerous times already. You simply refuse to acknowledge anything which doesn't support your own lack of an argument. I'd sooner an evenings navel-gazing tbh than continue to wait for an argument that it appears is never going to come.

aloyisious · 06-05-2017 5:15pm

A pertinent explanation of word-use when it comes to the one entity being discussed.... https://books.google.ie/books?id=wra_QV6oQtcC&pg=PA19&lpg=PA19&dq=Is+a+human+fetus+the+same+entity+that+is+called+the+unborn?&source=bl&ots=3lZXt9JvLg&sig=-cBk1IGYB97BqByfguI_DMSaz2E&hl=en&sa=X&ved=0ahUKEwixsevex9vTAhWmJMAKHTcEDYkQ6AEIPzAE

I know it's a US book, but In that regard, here as in the US, the fetus and the unborn are one and the same entity, just different titles for it used by differing sides. I reckon that the crafters of the 8th amendment here saw that to be a fact when they worded it for legal effect here and that seems to have met, even if unspoken, with the acceptance of our judiciary, otherwise the 8th would have been adjudged faulty.

IMO, the guarantee of a right to life of the unborn, as written into the constitution under the 8th amendment, would naturally cease to have effect once an unborn had left the woman's womb and become one of the birthed born. The 8th's guarantee is specific to the unborn in a woman's, or girl's, womb. The newborn would then have the same rights as any other born Irish citizen to life under the constitution. (Right to life... The Constitution specifically recognises and protects your right to life. Your right to life also means the right to have nature take its course and to die a natural death. That does not mean that you have the right to have your life terminated or death accelerated. Your right to die is simply the right to die a natural death and not to be kept alive by artificial means).

As for any possible alterations to the 8th by way of a referendum, there would still be a right to life guaranteed to the unborn, and NOT totally rescinded. Absolutely no change would be made to the present 8th amendment until the president signed the article after the people had chosen, via referendum, what changes should be made. The referendum articles wording will be chosen carefully by the politicians and the legal wordsmiths long before that. I don't see them agreeing to all the assembly report advice.

.........................................................................................................................................................................................

EDIT..... for what it's worth on the definition of personhood in law (legal wording) the 8th Amendment is included in this Wikipedia link: https://www.google.ie/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwjMjNDi19vTAhUGIcAKHXt4DYkQFgghMAA&url=https%3A%2F%2Fen.wikipedia.org%2Fwiki%2FPersonhood&usg=AFQjCNG7BxNG2Xmq0szVlTko5NnNeDgNDQ

The TWO LINE item is approx halfway down the article, using the sliding bar on the RIGHT as a guide. It's titled "International" and is above the WOMEN item. It seems to infer that personhood is included (though unspoken) in the 8th.

There is one other thing well worth keeping in mind when it comes to the issue of personhood. Judge Humphreys, in his high court ruling here last year, stated that the unborn has some of the same rights as born children do, even if the rights are NOT written down; sic: in legalese. That has had the Govt knickers in a twist since then as it's a legal ruling here that the unborn has unwritten rights, outside that included of the 8th, and equal in legal standing here. Personhood might be one of the unwritten unseen things the judge included in his ruling.

King Mob · 06-05-2017 5:21pm

One eyed Jack wrote: »

It's not nit-picking, because it's an incredibly important definition, particularly if you're trying to argue that in spite of it's status as a separate legal entity with it's own legal identity and the inherent protections of the right to life, the unborn could not be considered a person in a legal context.

Again, none of this waffle actually effects any of my points, it's you nitpicking.

One eyed Jack wrote: »

The rest of your post I won't address because I think I've made the point numerous times already. You simply refuse to acknowledge anything which doesn't support your own lack of an argument. I'd sooner an evenings navel-gazing tbh than continue to wait for an argument that it appears is never going to come.

The very first line recognises the unborn as a legal person?

1 All citizens shall, as human persons, be held equal before the law.

The unborn is a citizen of Ireland, and has legal recognition bestowed upon them on that basis in the context of Article 40. That right is as far as practicable defended and vindicated by our laws.

You only get citizenship when you are born (or through naturalisation), therefore unborn cannot be citizens of Ireland. Therefore your claim that unborn are persons because they are citizens fails on the outset.

So your claim is factually wrong using a cursory look at the law.

But again you are avoiding the main point...
A right to life does not equate to personhood.
The fact that the law must make an exception to extend this right to the unborn/fetuses is an indication that they are not already protected by the rights already granted to persons, because they are not persons.

MrPudding · 06-05-2017 5:30pm

Absolam wrote: »

Weeelll.... the Constitutional provision gives the unborn the right of a person. That's legal evidence, isn't it? You can't get much more legal.

As for explicit mentions... the Criminal Justice Act of 1990 explicitly mentions the murder of a Garda, and the murder of a prison officer, but not once in 80 mentions of murder does it ever refer to the murder of a person. I don't think you can argue murder is not the killing of a person though, despite the fact that it's not said explicitly.

There are obviously a number of consequences (whatever about them being automatic...) of killing a person, depending on the crime. A person who intentionally destroys unburm human life may be sentenced to a prison sentence of up to fourteen years. A person who engages in dangerous driving causing death may be sentenced to a prison sentence of up to five years. A person who commits infanticide may serve twelve years, a capital murderer forty. Consequences for killing a person evidently vary, yet you can't really extrapolate from this that someone who isn't imprisoned for capital murder didn't actually kill a person when they took their life whilst driving a car, can you?

Interesting argument, but I think it is wrong, your problem (with the comparison and examples) is with the mens rea. When someone kill a person with a car and are charged by death with dangerous driving, the sentence is smaller than for murder because the driver lacks the same culpability as a murderer. Yes, they did kill someone, but that was not the intention of their act. If, however, a person sets out with a car to kill someone, and does kill them (and this is known or suspected) then they will be charged with murder and not death by dangerous driving.

You are quite correct, there are differences in how a person might be sentenced for taking another persons life, but those differences are down the level of culpability and intention.

So, I am sure you can see where I am going here, and this is your other problem. Where one intentionally kills another person that is murder. You example of the intention destruction of an unborn human life, which you seem to be using to try to bolster your argument, actually shows the exact opposite. If an unborn foetus was considered in law to be a person, then why do the rules of homicide not apply? If a women procures an illegal abortion and kills/destroys the unborn foetus inside her, she has intentionally killed, according to you, a person. Now, if that is actually the case, and it was recognised in law, then why is she not charged with murder?

The very fact that there is a specific offence for the destruction (note, not killing) if an unborn human life (note, not unborn person), is an indication that whatever personhood you think a foetus has is not the same quality of personhood that us born persons enjoy.

MrP

One eyed Jack · 06-05-2017 6:10pm

King Mob wrote: »

You only get citizenship when you are born (or through naturalisation), therefore unborn cannot be citizens of Ireland. Therefore your claim that unborn are persons because they are citizens fails on the outset.

So your claim is factually wrong using a cursory look at the law..

Is the unborn held as equal before the law in Ireland in terms of the right to life as it is bestowed upon citizens in Irish law by virtue of the fact that they are human persons? I would say yes, it is.

The argument as to when we confer personhood is more of a social and philosophical argument than it is a legal one, The legal arguments as to personhood would be informed by a social and philosophical context.

King Mob wrote: »

But again you are avoiding the main point...
A right to life does not equate to personhood.
The fact that the law must make an exception to extend this right to the unborn/fetuses is an indication that they are not already protected by the rights already granted to persons, because they are not persons.

I would argue that it does, as how can you apply a legal right to a separate legal entity without acknowledging that legal rights are applied to persons on condition of their existence. It's why we acknowledge the difference for example between animal and human rights. It's not that the law is extending this right to the unborn, it's that the unborn has this right before they are born, and it can be interpreted in different ways and with different limitations depending upon the context in which one would like to argue within a legal framework. This is why the State acknowledges the right to life of the unborn, and with due regard to the 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.

Other legal rights, and limitations on those rights, which apply to born persons, are also dependent upon circumstances and context.

King Mob · 06-05-2017 6:28pm

One eyed Jack wrote: »

Is the unborn held as equal before the law in Ireland in terms of the right to life as it is bestowed upon citizens in Irish law by virtue of the fact that they are human persons? I would say yes, it is.

The argument as to when we confer personhood is more of a social and philosophical argument than it is a legal one, The legal arguments as to personhood would be informed by a social and philosophical context.

No, you are moving the goal posts now. And it's rather sad.
You claimed that the unborn are Irish citizens. This is factually incorrect and it's hilarious given how you gave out to me for not being careful with my use of unborn and fetus.

Your position is predicated on the idea that citizens are defined as persons.
However, legally, the unborn are not citizens.

So legally, your argument fails. Which is important since you are trying to argue that legally, the unborn/fetuses are persons.
If you are saying it's a philosophical argument because you've been proven wrong, you're moving the goalposts.

Do you stand by your claim that the unborn have citizenship?

One eyed Jack wrote: »

I would argue that it does, as how can you apply a legal right to a separate legal entity without acknowledging that legal rights are applied to persons on condition of their existence.

It's why we acknowledge the difference for example between animal and human rights.

It's not that the law is extending this right to the unborn, it's that the unborn has this right before they are born, and it can be interpreted in different ways and with different limitations depending upon the context in which one would like to argue within a legal framework.

You can argue and waffle all you like, but this is your tenuous interpretation only.

You admit that things that aren't persons can be given rights, so it does not follow and being given a right to life makes something a person.
It's also a fact that a person's rights are predicated on the condition of their existance, because again, you need to be born to be a citizen.

It also fails to answer my questions about why the unborn is not already covered by the rights given to persons.

If an unborn fetus is a person, why does it need a separate provision to insure it has a right to life?
Does the person's right to life not already cover when they are unborn?

One eyed Jack · 06-05-2017 7:02pm

King Mob wrote: »

No, you are moving the goal posts now. And it's rather sad.
You claimed that the unborn are Irish citizens. This is factually incorrect and it's hilarious given how you gave out to me for not being careful with my use of unborn and fetus.

Your position is predicated on the idea that citizens are defined as persons.
However, legally, the unborn are not citizens.

So legally, your argument fails. Which is important since you are trying to argue that legally, the unborn/fetuses are persons.
If you are saying it's a philosophical argument because you've been proven wrong, you're moving the goalposts.

Do you stand by your claim that the unborn have citizenship?

You can argue and waffle all you like, but this is your tenuous interpretation only.

I've argued that it would be dependent upon the circumstances and context of each case, and that interpretation is made by the Courts. You're looking for certainties where I can't give you any as there simply isn't a one-size-fits-all interpretation of the law, as was alluded to by the case aloysius presented earlier, and why the State is now appealing that case, and in the case I linked to earlier, it was recognised that three people were involved in the crash, and Gardaí amended their records to recognise this fact -

Another key aspect of the case was the fact that Mrs Enright’s widower Pat and her father David Walsh received a letter from gardaí saying they had amended their record of the crash.

This was to recognise that three people had died – Mrs Enright’s unborn daughter Mollie being the third – instead of two as had been previously stated.
Mr Walsh said after the inquest: ‘We have a very important piece of paper in our hands which recognises there was a third fatality. We set out to get that and we now have that.

‘And it’s now up to the powers that be to ensure that all these children are recognised.’

King Mob wrote: »

You admit that things that aren't persons can be given rights, so it does not follow and being given a right to life makes something a person.
It's also a fact that a person's rights are predicated on the condition of their existance, because again, you need to be born to be a citizen.

It follows that the right to life is conferred upon the unborn as it is human life as opposed to animal life, upon which we do not confer a right to life on the unborn. The right of citizenship could be argued to be inferred from the status of the unborn, because the Irish State has a duty to vindicate and defend the right to life of the unborn, and if the unborn is not a citizen of Ireland, then it could be argued the Irish State has no duty to vindicate and defend the right to life of the unborn.

King Mob wrote: »

It also fails to answer my questions about why the unborn is not already covered by the rights given to persons.

If an unborn fetus is a person, why does it need a separate provision to insure it has a right to life?
Does the person's right to life not already cover when they are unborn?

I would argue that a persons rights are not predicated on the idea that they are persons, but their rights are predicated on the fact that they are human. The context of their legal status comes under the sub-heading of personal rights which is under fundamental rights in the Irish constitution, so even in that context, if I needed to, I could argue the unborn are regarded as persons. That's an interpretation that would depend upon the Courts again though as to whether it would be accepted as a valid interpretation of the law.

King Mob · 06-05-2017 7:10pm

One eyed Jack wrote: »

I've argued that it would be dependent upon the circumstances and context of each case, and that interpretation is made by the Courts. You're looking for certainties where I can't give you any as there simply isn't a one-size-fits-all interpretation of the law,

Yea, i cant exactly compete when you're going the alternative facts route.

You claimed that the unborn have citizenship. This is false. You are now pretending that this is not the case.

I'm out.

One eyed Jack · 06-05-2017 7:21pm

King Mob wrote: »

Yea, i cant exactly compete when you're going the alternative facts route.

You claimed that the unborn have citizenship. This is false. You are now pretending that this is not the case.

I'm out.

It's not going the alternative facts route at all. I have every right to claim that the unborn is a citizen of the Irish State, and it would depend upon the circumstances of the case as to whether this would be considered a valid argument or not in the context of the Constitutional protection we afford to the unborn. If the interpretation were accepted by the Courts, then the legislation could be amended by Government without the need for a referendum. It's not alternative fact, it's alternative interpretation of the law.

aloyisious · 06-05-2017 10:37pm

One eyed Jack wrote: »

It's not going the alternative facts route at all. I have every right to claim that the unborn is a citizen of the Irish State, and it would depend upon the circumstances of the case as to whether this would be considered a valid argument or not in the context of the Constitutional protection we afford to the unborn. If the interpretation were accepted by the Courts, then the legislation could be amended by Government without the need for a referendum. It's not alternative fact, it's alternative interpretation of the law.

That'd be an interesting application to put to the high court, asking them to overturn the existing definition as to when one becomes an irish citizen (currently after one is born) to an alternative definition (to the unborn in the womb) because the claimant felt it could be done in the context of the constitutional protection already given the unborn.

As the claimant has included in the application the fact that the unborn has an existing constitutional protection of its life, the court (as is its practice to avoid wasting time with vexatious cases) would ask what benefit changing the long-standing practice of granting citizenship would be to the unborn.

If the high court accepted the argument, there would probably have to be a referendum as citizenship is embedded in the constitution. That's why the last time citizenship rules were changed, in 2004, it had to be done by referendum vote of the people.

That's just how I see things going in court and could well be wrong.

EDIT: It also, perversely as it were, might end with a nearly same-time referendum to do away with the 8th amendment as the newly won citizenship might trump it, on the grounds that the constitution couldn't contain two contrary sections on the protection of life, giving an extra protection of life to the unborn over the single one given to other citizens. The Govt would be off the 8th amendment hook and get two referendums out of the way on the one day, something it likes: double-win.

Absolam · 07-05-2017 2:32am

MrPudding wrote: »

Interesting argument, but I think it is wrong, your problem (with the comparison and examples) is with the mens rea. When someone kill a person with a car and are charged by death with dangerous driving, the sentence is smaller than for murder because the driver lacks the same culpability as a murderer. Yes, they did kill someone, but that was not the intention of their act. If, however, a person sets out with a car to kill someone, and does kill them (and this is known or suspected) then they will be charged with murder and not death by dangerous driving.

I certainly wouldn't dispute that mens rea is a significant component in many crimes, though I'd shy away from imagining that it's exclusively applicable to murder. For instance, absent mens rea the intentional destruction of unborn human life is simply the destruction of unborn human life; not a crime under the POLDPA.

MrPudding wrote: »

You are quite correct, there are differences in how a person might be sentenced for taking another persons life, but those differences are down the level of culpability and intention. So, I am sure you can see where I am going here, and this is your other problem. Where one intentionally kills another person that is murder. You example of the intention destruction of an unborn human life, which you seem to be using to try to bolster your argument, actually shows the exact opposite. If an unborn foetus was considered in law to be a person, then why do the rules of homicide not apply? If a women procures an illegal abortion and kills/destroys the unborn foetus inside her, she has intentionally killed, according to you, a person. Now, if that is actually the case, and it was recognised in law, then why is she not charged with murder?

It's not just intention or culpability that determines the crime though is it? Every form of unlawful killing has it's own particular circumstances that determine whether it's that crime, or another, which has been committed. Where one person intentionally kills another person that may be murder, but there's quite a bit more to it than simple intent. And as I pointed out earlier, the Criminal Justice Act does not mention the killing of a person at all... just like the POLDPA. In fact, if we take the examples I provided, we can see than the Criminal Justice Act 1990, the Infanticide Act 1949, and the Protection of Life During Pregancy Act 2013 all deal with the intentional (there's your mens rea) killing of other people, and none of them actually use the term kill a person. Evidently a person may intentionally kill an unborn person, an infant person, or a grown person, and be charged with different crimes without rising to murder; voluntary manslaughter, for instance, admits of intent (mens rea again) with exculpatory circumstances. So... someone might (intentionally) kill a person and be charged with an offence other than murder, because there are offences that better fit the act and circumstances.

MrPudding wrote: »

The very fact that there is a specific offence for the destruction (note, not killing) if an unborn human life (note, not unborn person), is an indication that whatever personhood you think a foetus has is not the same quality of personhood that us born persons enjoy.

Well, I wouldn't try to speak to quality of personhood; that's seems to be a new introduction and I've no idea how, or why, you'd measure it. Though it apears to me that argument claims an infant also does not have the same quality of personhood that other born persons enjoy, if it's mother can be convicted of infanticide rather than murder for intentionally causing it's death.
I'd be dubious about that.

aloyisious · 08-05-2017 2:07pm

Absolam wrote: »

I certainly wouldn't dispute that mens rea is a significant component in many crimes, though I'd shy away from imagining that it's exclusively applicable to murder. For instance, absent mens rea the intentional destruction of unborn human life is simply the destruction of unborn human life; not a crime under the POLDPA.
It's not just intention or culpability that determines the crime though is it? Every form of unlawful killing has it's own particular circumstances that determine whether it's that crime, or another, which has been committed. Where one person intentionally kills another person that may be murder, but there's quite a bit more to it than simple intent. And as I pointed out earlier, the Criminal Justice Act does not mention the killing of a person at all... just like the POLDPA. In fact, if we take the examples I provided, we can see than the Criminal Justice Act 1990, the Infanticide Act 1949, and the Protection of Life During Pregancy Act 2013 all deal with the intentional (there's your mens rea) killing of other people, and none of them actually use the term kill a person. Evidently a person may intentionally kill an unborn person, an infant person, or a grown person, and be charged with different crimes without rising to murder; voluntary manslaughter, for instance, admits of intent (mens rea again) with exculpatory circumstances. So... someone might (intentionally) kill a person and be charged with an offence other than murder, because there are offences that better fit the act and circumstances.
Well, I wouldn't try to speak to quality of personhood; that's seems to be a new introduction and I've no idea how, or why, you'd measure it. Though it apears to me that argument claims an infant also does not have the same quality of personhood that other born persons enjoy, if it's mother can be convicted of infanticide rather than murder for intentionally causing it's death.
I'd be dubious about that.

Maybe I'm picking up this parenthesized part of your's above on crime and sentence wrongly (Though it apears to me that argument claims an infant also does not have the same quality of personhood that other born persons enjoy, if it's mother can be convicted of infanticide rather than murder for intentionally causing it's death) it does seem to conflict with this other parenthesized part of yours (So... someone might (intentionally) kill a person and be charged with an offence other than murder, because there are offences that better fit the act and circumstances) whereby you recognize act and circumstances apply.

The same considerations apparent in your 2nd above and elsewhere in your full post were probably also in the minds of those who wrote and set the act into law, and also any DPP who used it instead of murder when deciding on an appropriate charge; let the punishment fit the crime etc....

BTW, I missed the part where some-one argued that an INFANT had less personhood than another person, causing you to include the infanticide act and an offence triable under it.

Re your thoughts on equality of personhood, it seems it's a centuries old debate with differing opinions (as usual with humans). This wikipedia link might be enlightening as it includes the ecclesiastical courts. The whole is titled Beginning of human personhood and it's respective (Christian) Para is titled Fetal personhood in law.....

https://www.google.ie/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&uact=8&ved=0ahUKEwi0_YnYpeDTAhXDCsAKHfMHA5IQFgg2MAE&url=https%3A%2F%2Fen.wikipedia.org%2Fwiki%2FBeginning_of_human_personhood&usg=AFQjCNHcEY4QAPPWD6jbBm6dGtW2tlHa_Q

recedite · 08-05-2017 10:32pm

aloyisious wrote: »

This wikipedia link might be enlightening as it includes the ecclesiastical courts. The whole is titled Beginning of human personhood and it's respective (Christian) Para is titled Fetal personhood in law.....

https://www.google.ie/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&uact=8&ved=0ahUKEwi0_YnYpeDTAhXDCsAKHfMHA5IQFgg2MAE&url=https%3A%2F%2Fen.wikipedia.org%2Fwiki%2FBeginning_of_human_personhood&usg=AFQjCNHcEY4QAPPWD6jbBm6dGtW2tlHa_Q

Looking at the historical views, the basic arguments have not really changed that much. One thing that has happened in modern times is that a greater value has been placed on infants and children than before, but a lesser value on the unborn.
IMO its due to the "permanence" that we assign to these entities (subconsciously and psychologically).

There was a time, long ago, when a visible pregnancy normally resulted in a birth, but there was a good chance that the infant would not make it to adulthood. The pregnancy was a sure thing, but the survival of the infant was not.
Nowadays a pregnancy can just disappear, but once a child is born, we consider them permanent members of society. So now the pregnancy is considered an ephemeral thing, but the ongoing survival of the newborn infant is taken for granted.
These new medical capabilities have influenced our views on the ethics surrounding abortion and child mortality. Not the other way round as we sometimes like to think.

aloyisious · 08-05-2017 11:43pm

recedite wrote: »

Looking at the historical views, the basic arguments have not really changed that much. One thing that has happened in modern times is that a greater value has been placed on infants and children than before, but a lesser value on the unborn.
IMO its due to the "permanence" that we assign to these entities (subconsciously and psychologically).

There was a time, long ago, when a visible pregnancy normally resulted in a birth, but there was a good chance that the infant would not make it to adulthood. The pregnancy was a sure thing, but the survival of the infant was not.
Nowadays a pregnancy can just disappear, but once a child is born, we consider them permanent members of society. So now the pregnancy is considered an ephemeral thing, but the ongoing survival of the newborn infant is taken for granted.
These new medical capabilities have influenced our views on the ethics surrounding abortion and child mortality. Not the other way round as we sometimes like to think.

True enough, knowledge should lead to enlightenment. The one thing I was curious about was ecclesiastical courts sentences: penance of ten years etc... using words without making connection, esp as we knew penal being very connected to Irish history. Penance being of varying kinds, finance etc....

Re personhood being related to the concept of the soul: I doubt if that would enter the thoughts of the average thinker about personhood, more likely that the thoughts (nowadays) would more probably be about personhood of the unborn/fetus being a legal construct for the physical entity.......
EDIT; possibly on the basis of which side one took in the debate on abortion, a concept that would be a boon to those opposed to abortion.

The link seems worth saving as a document worth taking time to browse and examine, just keeping in mind that it's a collection of material, concepts and thoughts from various ages, sources and peoples and reliable up to a point (of personal choice).

recedite · 08-05-2017 11:56pm

I think penal is a different and unrelated word to penance. Penal and penalties are a secular concept of punishment.
Penance and penitential acts are some kind of religious punishment/guilt trip.

It is noteworthy that historically the religious assigned a lesser penance to killing the unborn, compared to the born, which implies a lesser right to life of the unborn.

Abortion Discussion, Part Trois

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