Abortion Discussion, Part Trois

aloyisious

robindch wrote: »

So, "Catholic Answers" is a radio program which includes a segment called "Open Forum" where callers can ask questions of the host, Fr Paul Keller.

Last week, a guy who installs fire alarms for a living rang in to ask Keller whether it's right and proper to install a fire alarm at Planned Parenthood. The reply is predictable, though Keller waits until the second sentence before godwinning himself.

https://www.catholic.com/audio/cal/8323 (question is at 36:52)

Embarrassing if he'd have to go "OH, never thought about that" if a fire broke out and people lost their lives [and the lives of the unborn] because they weren't alerted to it due to lack of an alarm system.

Edit. The lack of a fire alarm system would probably mean the clinic would fail building standards for use and coincidentally lose it's licence.

recedite

aloyisious wrote: »

So how far do the Humphrey rulings have legal standing reach when it comes to anything we might put in the costitution in the future when it might conflict with his rulings on how other articles [and their sections] in the constitution HAVE pertinence to the rights of the unborn If his rulings have NOT been appealed to and overturned by our Supreme Court before the upcoming referendum? Are we being walked into a constitutional fight being manipulated by parties opposed to abortion, courtesy of Judge Humphrey's RULING AND DECLARATIONS on how constitutional articles provide human rights coverage for the unborn? Is it a cute hoor way of playing EU and UN declarations of childrens rights?

If all mention of the unborn in Article 40 was simply deleted/repealed, with nothing else added in, then that would mean the judge's interpretation that Article 42 (the child) covered a foetus would still stand, or at least the matter would be unresolved. But if some extra wording was added in to the Constitution specifying that normal rights did not extend to the unborn, or to the unborn prior to 12 weeks, then the judge's interpretation would no longer apply.

aloyisious wrote: »

Embarrassing if he'd have to go "OH, never thought about that" if a fire broke out and people lost their lives [and the lives of the unborn] because they weren't alerted to it due to lack of an alarm system.

Somebody else would install the system, and he'd have made his point. And possibly been fired by his firm.

aloyisious

Coincidentally in today's Irish Examiner..... Supreme Court to hear "leapfrogged" appeal by the state of Mr Justice Humphrey's ruling.

http://www.irishexaminer.com/breakingnews/ireland/supreme-court-to-hear-appeal-on-extent-of-rights-of-unborn-819663.html

Part of his ruling wording.... Mr Justice Humphrey interpreted the word unborn used in the constitution to refer to and mean an unborn child.

Mr Justice Humphreys held “unborn” means an “unborn child” with rights extending beyond the right to life under Article 40.3.3 (the 1981 anti-abortion amendment of the Constitution)

He held that the unborn child enjoys "significant" rights and legal position ar common law, by statute, and under the constitution,"going well beyond the right to life alone".

EDIT.. Before responding to mine above please note that I have edited and re-worded parts of the original to include parts of the I/E article of the judge's ruling of 2016.

Nick Park

aloyisious wrote: »

Coincidentally in today's Irish Examiner..... Supreme Court to hear "leapfrogged" appeal by the state of Mr Justice Humphrey's ruling.

http://www.irishexaminer.com/breakingnews/ireland/supreme-court-to-hear-appeal-on-extent-of-rights-of-unborn-819663.html

Part of his ruling wording.... Mr Justice Humphrey interpreted the word unborn used in the constitution to refer to and mean an unborn child.

Mr Justice Humphreys held “unborn” means an “unborn child” with rights extending beyond the right to life under Article 40.3.3 (the 1981 anti-abortion amendment of the Constitution)

He held that the unborn child enjoys "significant" rights and legal position ar common law, by statute, and under the constitution,"going well beyond the right to life alone".

EDIT.. Before responding to mine above please note that I have edited and re-worded parts of the original to include parts of the I/E article of the judge's ruling of 2016.

The judge's application of the 31st Amendment (following the Children's Referendum) to unborn children is interesting.

It's worth remembering that Barnardos, when promoting a Children's Referendum, specifically referred to such legislation as being consistent with the 8th Amendment since both are designed to help people who are unique and vulnerable - https://www.barnardos.ie/assets/files/information-pack/childrens_rights_nov_2008.pdf

aloyisious

With this hearing of the appeal next year the date will be important as it seem's common sense to have it done and dusted weeks before the expected referendum. However common sense doesn't apply when law is concerned here. I can see the cart being placed before the horse or the supposed date for the referendum will be [should be] put back until the case is decided. The pols may like kicking the can down the road but not the rage and slinging any delay will cause from both sides of the debate. I expect fury from the Pro-choice side to be genuine but that from the Anti-choice side to be fake, as the court case would play well for their side. A referendum delay definitely will as it'll delay the probable decision by other citizens which the anti-choice side do not want.

There's another factor which may play into the referendum date, the date of the visit by Pope Francis. No one would be so crass as to set an abortion referendum date close to his visit date,,,,, or would they?

recedite

aloyisious wrote: »

Coincidentally in today's Irish Examiner..... Supreme Court to hear "leapfrogged" appeal by the state of Mr Justice Humphrey's ruling.

They must be following this thread :pac:
They will want this resolved before the referendum. If it went to the appeals court first, and then got referred on to the SC, they woudn't be in time.
If Humprey's gets overturned, we can forget about it.
If not, something might have to go into the referendum to resolve the paradox whereby the unborn could end up legally as children, but without rights.

recedite

aloyisious wrote: »

There's another factor which may play into the referendum date, the date of the visit by Pope Francis.

I heard something about The Pope and Queen Elizabeth coming over on a trip, but I thought it was just a joke.

aloyisious

recedite wrote: »

They must be following this thread :pac:
They will want this resolved before the referendum. If it went to the appeals court first, and then got referred on to the SC, they woudn't be in time.
If Humprey's gets overturned, we can forget about it.
If not, something might have to go into the referendum to resolve the paradox whereby the unborn could end up legally as children, but without rights.

It [with agreement of the lawyers] is leapfrogging the appeals court, going directly to SC. As the SC has ruled in the past [a decade before Mr Justice Humphreys made his ruling] on what the legal definition of the "unborn" is here. I don't see the 7 judges referred-to in the I/E report liking the idea of a lower court judge overturning the prior SC rulig and he not even in the appeal court

Link; listing courts and judges in order of precedence... http://www.courts.ie/Courts.ie/Library3.nsf/PageCurrent/91D731A12A4B8A0F80257FBC004E191F

Judges of the Supreme Court [8 in total - 2 vacancies]

Judges of the Court of Appeal [12 in total]

Judge of the High Court [38 in total - 2 vacancies]
including The Hon. Mr. Justice Richard Humphreys.

The paradox seems to be entirely within [and of] Mt Justice Humphreys judgement and understanding. The SC, if it decides to stand by the prior SC ruling and says that higher court decision stands, will mean Judge Humphreys ruling is of nought and just needs them to say his judgement has been set aside. I'd imagine the Court Service will follow that up by providing that new SC judgemet in print so everyone can become aware, at their choice. of what's what.

aloyisious

recedite wrote: »

I heard something about The Pope and Queen Elizabeth coming over on a trip, but I thought it was just a joke.

Naw, they'de take their differences to a higher court.

recedite

aloyisious wrote: »

I don't see the 7 judges referred-to in the I/E report liking the idea of a lower court judge overturning the prior SC ruling and he not even in the appeal court

I don't remember the SC ever ruling on whether constitutional/legislative rights assigned to "a child" applied to an unborn child though?
That would be the question.

Odhinn

aloyisious wrote: »

.

There's another factor which may play into the referendum date, the date of the visit by Pope Francis. No one would be so crass as to set an abortion referendum date close to his visit date,,,,, or would they?

He's due 22nd August.

Referendum provisonally set for May/June.
https://www.irishtimes.com/news/politics/abortion-referendum-set-for-may-or-june-of-next-year-1.3232397

So no points for Catholic church. Complete waste of the Pope Card.

Nick Park

recedite wrote: »

I don't remember the SC ever ruling on whether constitutional/legislative rights assigned to "a child" applied to an unborn child though?
That would be the question.

Ireland is a signatory to international treaties which are of relevance here.

Justice Humphreys, in his judgement, referred to the preamble of the Convention on the Rights of the Child which includes the phrase “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”.

The Vienna Convention on the Law of Treaties states that the Preamble to a Treaty is part of the context within which interpretation of that Treaty should be conducted. On this basis, both the International Court of Justice and the European Court of Human Rights have ruled that Treaty preambles are key to interpreting ambiguity within the body of international treaties.

So it is not just a case of a High Court challenging a Supreme Court ruling. If Ireland is a signatory to an International Human Rights Treaty which, taken in good faith, refers to an unborn child as a 'child', then Ireland's subsequent insertion (through a Referendum in 2012) of the recognition of the Human Rights of a 'child' in our Constitution also comes into play.

Does the Supreme Court have the power to interpret the Irish Constitution in a way that is contrary to international treaties to which Ireland is a signatory?

aloyisious

Nick Park wrote: »

Ireland is a signatory to international treaties which are of relevance here.

Justice Humphreys, in his judgement, referred to the preamble of the Convention on the Rights of the Child which includes the phrase “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”.

The Vienna Convention on the Law of Treaties states that the Preamble to a Treaty is part of the context within which interpretation of that Treaty should be conducted. On this basis, both the International Court of Justice and the European Court of Human Rights have ruled that Treaty preambles are key to interpreting ambiguity within the body of international treaties.

So it is not just a case of a High Court challenging a Supreme Court ruling. If Ireland is a signatory to an International Human Rights Treaty which, taken in good faith, refers to an unborn child as a 'child', then Ireland's subsequent insertion (through a Referendum in 2012) of the recognition of the Human Rights of a 'child' in our Constitution also comes into play.

Does the Supreme Court have the power to interpret the Irish Constitution in a way that is contrary to international treaties to which Ireland is a signatory?

It's possible that the UN Convention on the Rights of the Child preamble wording bit fell through the "cracks" until Judge Humphreys mentioned it.

Confusingly the term Vienna Convention itself refers to two different treaty conventions, one [1969] solely for treaties between countries and the other [1986] between countries and international organisations. Ireland has accession to the 1969 one but [according to Wiki] has not ratified it. I don't know/can't find if Ireland has accessed or ratified the 1986 one. If Ireland has not ratified one or both VCLT's, then they may not have legal standing stnding here.

Either way that shouldn't affect the standing of the UN Convention of the Rights of the Child which Ireland has signed up to. The part of the preamble quoted by Justice Humphreys is just one paragraph and is further defined by Article 1 of the convention: Article 1 - definition of a child... For the purposes of the present convention a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier. Only the preamble uses the definition used by Justice Humphreys. So I'm not sure which has precedence in law here; the part of the preamble quoted by Justice Humphreys OR the actual article in the convention defining what the child is. I'd assume it would be article 1 itself.

Edit: as Nick has pointed out, the international court of justice AND the european court of human rights have both ruled that treaty preambles are key to interpreting ambiguity within the body of internationl treaties. The key word there itself is INTERPRETING.....

Link: http://www.childrensrights.ie/childrens-rights-ireland/un-convention-rights-child.

On opening the link, scroll down to and open; Full text UNHCR English.

NEXT, scroll down to: File UNHR English pdf and open it for the preamble and all the articles.

Nick Park

aloyisious wrote: »

The part of the preamble quoted by Justice Humphreys is just one paragraph and is further defined by Article 1 of the convention: Article 1 - definition of a child... For the purposes of the present convention a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier. Only the preamble uses the definition used by Justice Humphreys. So I'm not sure which has precedence in law here; the part of the preamble quoted by Justice Humphreys OR the actual article in the convention defining what the child is. I'd assume it would be article 1 itself.

It's not as if there is a conflict between the definition in Article 1 and the words of the Preamble. The key question, I suppose, is whether we class an unborn child as a human being. Under international law, since there is disagreement on this point, the Preamble becomes key to resolving that point.

Irish law (quite apart from the Eighth Amendment and our ratification of international human rights treaties) would appear to class an unborn child as a human being, since it mandates that stillborn babies who died before the point of birth must be allocated a PPS number. Unless someone wants to argue that PPS numbers are allocated to creatures who are not, in fact, human beings?

recedite

Nick Park wrote: »

stillborn babies who died before the point of birth must be allocated a PPS number.

Another one that "fell through the cracks"?
Given the number of cracks appearing, it seems obvious that a "simple" Repeal/deletion of the 8th would create a lot of unresolved questions.

If it was going to be changed, there would have to be some definite statement inserted instead, spelling out the application limits of human rights and child rights (if any) to the unborn in Ireland.

Loafing Oaf

recedite wrote: »

there would have to be some definite statement inserted instead, spelling out the application limits of human rights and child rights (if any) to the unborn in Ireland.

Would there? You'd better inform our TDs then, because they seem set on simple repeal.

Nick Park

recedite wrote: »

If it was going to be changed, there would have to be some definite statement inserted instead, spelling out the application limits of human rights and child rights (if any) to the unborn in Ireland.

I suspect that our laws (which have evolved over time) reflect the view expressed by Leo Varadkar recently that an unborn child should have some human rights, but not equal human rights with an adult. https://www.independent.ie/irish-news/politics/i-dont-agree-unborn-babies-should-have-no-rights-leo-varadkars-revealing-new-york-times-interview-36118419.html

Mr Varadkar (38) gave an insight into his views on abortion ahead of the referendum next year on whether to repeal the Eight Amendment, which gives equal rights to the mother and the foetus.
He said: "As a doctor, I would perform pregnancy scans and while I don’t accept the view that the unborn child, the fetus, if you prefer that term, should have equal rights to an adult woman, to the mother, I don’t share this view that the baby in the womb, the fetus, whatever term you want to use, should have no rights at all.


"And there are people who take the view that human rights only begin after you’re born and that a child in the womb with a beating heart, the ability to hear, the ability to feel pain, should have no rights whatsoever. I don’t agree with that."

This view, which is probably quite widespread and more popular than polar opposites on the abortion debate, is not without its problems. Is it possible to be partly a human being, but not fully? Or is someone either a human being or not? Should all human rights be extended to all? Or is there justification for Varadkar's position that some should receive some human rights, but not full human rights?

I would hope that debates could tease out some of these questions before a referendum, but probably not. We'll probably have the usual Punch and Judy show of die hard dogmatists snarling 'Repeal' and 'Pro-Life' at each other.

Loafing Oaf

Nick Park wrote: »

I suspect that our laws (which have evolved over time) reflect the view expressed by Leo Varadkar recently that an unborn child should have some human rights, but not equal human rights with an adult. (

I think we will soon learn that our Taoiseach's views have, ahem, evolved somewhat since he expressed those sentiments....

recedite

Nick Park wrote: »

Is it possible to be partly a human being, but not fully? Or is someone either a human being or not? Should all human rights be extended to all? Or is there justification for Varadkar's position that some should receive some human rights, but not full human rights?

Tricky questions, and I am glad that Varadkar is the one in charge for this.
I'll just point out that every human right is conditional on not trampling on other peoples rights. So there is never a completely "black and white" answer to questions of "rights" anyway. But that does not mean acceptable answers cannot be found.

seamus

Nick Park wrote: »

Irish law (quite apart from the Eighth Amendment and our ratification of international human rights treaties) would appear to class an unborn child as a human being, since it mandates that stillborn babies who died before the point of birth must be allocated a PPS number. Unless someone wants to argue that PPS numbers are allocated to creatures who are not, in fact, human beings?

Only after 24 weeks or 500g in weight.

Before that, there is no stillbirth, no PPS number, just a miscarriage. Irish law defines a very hard line between when a foetus is a person, and when it is not.

So I don't actually see any conflict here, not really. Later term abortions are virtually always because of FFAs and are carried out by inducing labour. The foetus is "born" just like any other, but being incompatible with life, medical intervention simply requires that they are kept comfortable until death. It is then issued with a birth cert, death cert and PPSN.

Tbh, this all echoes the SSM referendum where there were so many claims about how many complexities it would create in legislation that it would be unworkable. I don't see any major legislative issues tbh.

Loafing Oaf

seamus wrote: »

Tbh, this all echoes the SSM referendum where there were so many claims about how many complexities it would create in legislation that it would be unworkable. I don't see any major legislative issues tbh.

Heard the same sort of stuff re POLDPA, how it was definitely unconstitutional and there would be all these legal challenges to it...

recedite

Loafing Oaf wrote: »

Heard the same sort of stuff re POLDPA, how it was definitely unconstitutional and there would be all these legal challenges to it...

No, you have that the wrong way round.
POLDPA was brought in specifically to bring legislation into line with the Constitutional position.

seamus

recedite wrote: »

No, you have that the wrong way round.
POLDPA was brought in specifically to bring legislation into line with the Constitutional position.

It was, but nevertheless the Iona bobble heads still proposed a myriad of what-if scenarios to try and illustrate how much it could be used for illegally butchering innocent children.

Loafing Oaf

recedite wrote: »

No, you have that the wrong way round.
POLDPA was brought in specifically to bring legislation into line with the Constitutional position.

I know that, but lots of ill-informed keyboard warriors didn't. Check out some of the comments on this journal.ie article:
http://www.thejournal.ie/president-signs-protection-of-life-during-pregnancy-bill-into-law-1014930-Jul2013/

It is better that it happened this way; because there can now be a proper challenge brought through the High Court and then likely the Supreme Court against this unjust and profoundly unconstitutional abortion legislation, with proper and full evidence put before the courts, by members of the public (who can challenge the legislation section by section).

Zerbini Blewitt

Birth & death certs for a stillborn birth @ 24 weeks makes sense but PPS numbers don't.

PPS numbers are not mentioned in the Stillbirths Registration Act, 1994.

I'm not sure but I think that the PPSN anomaly happens because the Oireachteas decided to piggy back stillbirths on top of normal births in the Births, Deaths and Marriages Registration Act, 1972.

If this is the case, it just looks like an indifferent legislative short cut.

aloyisious

Zerbini Blewitt wrote: »

Birth & death certs for a stillborn birth @ 24 weeks makes sense but PPS numbers don't.

PPS numbers are not mentioned in the Stillbirths Registration Act, 1994.

I'm not sure but I think that the PPSN anomaly happens because the Oireachteas decided to piggy back stillbirths on top of normal births in the Births, Deaths and Marriages Registration Act, 1972.

If this is the case, it just looks like an indifferent legislative short cut.

Looks like what you said, possibly on the advice of public service.... speedy advancement of paperwork.

https://www.welfare.ie/en/Pages/Personal-Public-Service-Number-PPS-Number-Frequently-Asked.aspx

Q7. What am I supposed to use my PPS Number for?
A7. Your PPS Number. should only be used in transactions with Government Departments and Agencies. [Civil Registration Service – All Birth, Death, Marriage & Civil Partnership transactionses or persons or bodies that they have authorised to act on their behalf].

Q16. Is the PPS Number a National ID?

A16. No. The PPS Number is not a national identity number. It is designed to be used as a service enabler for the purposes of public service administration. The number forms an essential element of your Public Service Identity (PSI) which provides a speedy and efficient means of establishing identity for the purposes of access to and dealings with all public service bodies. The PSI comprises the PPS Number and a defined set of personal data. Your PSI is to be used exclusively in dealings with public bodies or with agents acting on behalf of public bodies.

aloyisious

recedite wrote: »

spelling out the application limits of human rights and child rights (if any) to the unborn in Ireland.

I think that that is what the SC should be able to rule on in the upcoming case of Justice Humphreys ruling.

aloyisious

Nick Park wrote: »

It's not as if there is a conflict between the definition in Article 1 and the words of the Preamble. The key question, I suppose, is whether we class an unborn child as a human being. Under international law, since there is disagreement on this point, the Preamble becomes key to resolving that point.

Irish law (quite apart from the Eighth Amendment and our ratification of international human rights treaties) would appear to class an unborn child as a human being, since it mandates that stillborn babies who died before the point of birth must be allocated a PPS number. Unless someone wants to argue that PPS numbers are allocated to creatures who are not, in fact, human beings?

Sometimes clauses within laws can be used by Govt Depts and Agencies to set up rules and regulations to "enable" them to process their work & occasionally legitimately extend the dept/agency remit which the persons bringing the original bill into law did not envisage or consider possible. The public servants probably didn't figure that their administrative rules would have an effect down the line beyond that they envisaged it to mean/be relevant to.

recedite

aloyisious wrote: »

I think that that is what the SC should be able to rule on in the upcoming case of Justice Humphreys ruling.

But bear in mind they will be working within the confines of the current constitution, ie with the 8th amendment in place.
They will have no opinion on what "should or would" be the situation if it was repealed.

aloyisious

recedite wrote: »

But bear in mind they will be working within the confines of the current constitution, ie with the 8th amendment in place.
They will have no opinion on what "should or would" be the situation if it was repealed.

That [sentence 1] will be if they hear the case before the fate of the 8th is decided on by us/people with voting rights on the eletoral register.

Yup on sentence 2. If the hearing is after the referendum on the 8th happens, their work may be shortened, possibly confined to how the other article in the constitution mentioned in justice Humphreys ruling interacts with the UN Childrens Rights Convention articles and preamble, eg; when does the unborn come to have the definition of a child in Irish law, giving due consideration to our UN treaty obligations. God alone knows what their decision will be or what happens next.

Whatever happens to the 8th Amendment as a result of the referendum clearly will depend on the wording of whatever the referendum commission, and presumbly the parties, decide we should vote on regardless of what is in the final report from the abortion committee [weird title] to the Oireachtas. My understanding on the status of the referendum commission is based on what the papers say; that it has yet to be set up.

I'm tempted to call it the abortion referendum but know that the Govt will want full value for the money spent will have some other thing for us to vote on as well.

Edit: There is always the chance that when the SC hears the case it comes out with a ruling backing up ALL of Justice Humphreys ruling AND decided that it was also necessary to make a ruling on the wording or constitutionality of an Article or act [it's bad in law] - when the UN treaty obligation is taken into consideration - which could put a stop to any referendum on abortion. That could be the ultimate of decisions arising from the SC.