ANSWERING THE ARGUMENTS OF PRO-REPEAL

ANSWERING THE ARGUMENTS OF THE PRO-REPEAL CAMPAIGN

I attended a debate recently on retaining or repealing the 8th Amendment. At this debate certain arguments for repeal were put forward by both the panel and the audience. In this article I want to look at those positions, take them out of the context of the abortion debate, apply exactly the same arguments to our other laws and see how valid they really are.

1. An unborn baby is in the woman's body and therefore she should have complete autonomy over what happens in her own body.

Q. If this is true, why then can I not walk into any surgeon and demand that he severs my healthy leg or arm because I do not want it anymore? It is my body. I am making an informed decision. I know that I will have to live with my decision. Why can I not ask for that as part of my own healthcare?

A. We do not have complete bodily autonomy anywhere else in law. Even our constitutional right to bodily integrity is restricted by the law especially when it comes to making decisions that are medically unsound and unnecessary. Where we might cause serious harm to our own bodies or someone else’s, the law rightly steps in to deny us that ‘choice’.
Why do we willingly accept that the law should regulate the severing of healthy limbs but not the terminating of a healthy life?

There is also the point to be made here that when a woman is pregnant, there is now another distinct life with rights that cannot be extinguished just because they are inconvenient. Abortion crosses over into a place where there are two people with rights and one person cannot and should not be allowed to act upon those rights at the expense of the other person.

2. Abortions happen anyway and women are in danger because the law forces them to procure 'backstreet abortions' instead of safe, legal abortions.

Q. The law prohibits many activities e.g. drug use, and those activities happen anyway. Is the law to blame when someone contracts a disease from a dirty needle because it forced them to procure needles wherever they can instead of providing safe, legal alternative?

A. Laws that regulate behaviour that society deems unacceptable will never be able to completely eradicate that behaviour but just because that behaviour continues in a small group of people does not mean that the behaviour should be legalised. Where would that end? Why bother having laws at all? Because they are necessary for the protection of the people and the punishment of wrong behaviour.

3. The 8th Amendment forces women to remain pregnant against their will. The following question was put: "How far would you go to force me to remain pregnant against my will?" Women should be allowed to decide whether or not to remain pregnant.

Q. Does the law actually 'force' women to stay pregnant or does it prohibit them from taking the life of the unborn?

A. Pregnancy is not forced upon a woman (outside of the situation where she becomes pregnant because of rape, but that is a rare occurrence and is not the reason for 98% of abortions), it is a state of being which will usually continue naturally apart from any external interference. Prohibitory laws are there to protect society from behaviour that we collectively deem unacceptable or harmful. Their focus is the regulation of unacceptable or harmful behaviour. They recognise the value placed on life and seek to prevent an individual from doing something that is harmful or unacceptable. 

If you transfer this reasoning to mental health concerns, where we have laws that allow for the involuntary detention of people who may be at risk of harming themselves by suicide, they are prevented from doing so by this law and therefore ‘forced’ to remain alive. Should we be discussing how these people are ‘forced’ to remain in a state of being that they do not want? Should we turn around and allow mentally ill people to harm themselves or others? Of course not! The law recognises the value of that person’s life and is preventing harmful behaviour. As such, the law does not force a suicidal person to remain alive any more than it ‘forces’ a woman to remain pregnant.  The Irish people decided that the unborn life is important and warrants protection. That's what the 8th Amendment achieved. It does not force women to remain pregnant, it simply does not give them permission to take the life of the unborn child. 

As a side note, the law goes further in this area. It makes no attempt to restrict the person from travelling to another country to obtain a procedure which is illegal in Ireland. Many say that Ireland is exporting its problems, however I believe that the law should not attempt to stop women abroad to have an abortion but it should stop at saying that as a nation, Ireland condones and will provide such a procedure.

4. Legalising abortion allows women who want one to have that choice. No one is forcing you to have an abortion. If you do not agree with it, do not have an abortion, but those who want to do it should be allowed.

Q. Should we legalise other illegal behaviours for those who want to do it, and just tell those that do not agree with it not to do it? Is that the standard by which we decide whether something should be allowed?

A. If we apply that standard to other behaviours we would not be so quick to allow it. Take murder or child abuse as an example. Making these crimes legal would allow for those who want to do it and, those who do not want to commit murder or child abuse have the choice not to. It does not force those who do not agree with it to do it, it just allows the choice for those who want to. Is this justice? Is this how we decide how behaviours should be regulated? The problem with this argument is that it assumes that behaviours are not, of themselves, wrong. It argues that if I believe that something is not wrong, then it should not be wrong. But where else does this happen? I might believe that murder should not be illegal, but should I commit murder I will find out swiftly that what I believe is not important. The law should and will be applied regardless. 

5. Women should decide what to do with their own bodies and pregnancies. Men should not have a say.

Q. Should we allow a certain group within society determine what is legal or moral purely because of their gender? Do any other groups get this treatment in the legal system?

A. Allowing only one section of society to decide what is legal or right can hardly be described as a step forward in society. Remember not that long ago when a whole section of the citizenry was excluded from having a say in the law? Remember the women’s suffrage movement that put an end to that? Surely women cannot be serious when they claim that men should not get to have an opinion in the matter of abortion. 

On a side note, the Constitution of Ireland does not even suggest the idea that some of the eligible citizens should be refused the option to vote in a referendum, and if it did, it would be time to tear it up and start again. Our Constitution rightly lays down the democratic solution to changing the Constitution; a referendum of all of the people of Ireland…and that includes men. 

6. Women should be trusted to make decisions about what affects their bodies. Trust women is the cry!

Q.  Why are women more trustworthy on this issue? In what other arena of law do we accept the suggestion that one section of society is more trustworthy in deciding law that affects them?

A. Is it not the case, which has been argued by the repeal campaign, that the women involved in making the decision to have an abortion are distressed, fearful, ashamed, suicidal? If there is a time limit e.g. 12 weeks imposed upon anyone in that kind of emotional distress, is that not counter-productive and would it not lead to decisions being made under great pressure that, if given more time, the woman might find a way through without terminating the pregnancy? 

Also, are we going to trust men to vote on issues affecting men? Are we going to trust children to vote on issues that affect them? This line of reasoning doesn’t work and would be rightly denounced as sexist if men were using it. Trusting women has nothing to do with changing the Constitution and is just a sound bite for a campaign that refuses to say what it is they actually want – abortion on demand.

7. Ireland's history of caring for and burying babies is deplorable. We should not go back to a time when women who were pregnant were hidden away and gave birth in shame. Women should have access to care and support if in a crisis/unwanted pregnancy.

Q. Is Ireland’s shameful history of its treatment of pregnant women and their babies a sound reason for legalising abortion? 

A. If our history and treatment of women and their babies (born or unborn) is so disgraceful, how can it possibly be more compassionate to end the lives of these babies instead of allowing them to be born into a society that places value on their lives? Babies found in unmarked graves and cisterns revolted our national conscience and decency, but babies torn apart and incinerated before they were even fully formed is something that should be legal? It is absolutely true that women should have better access to care and support systems while pregnant. Proper access to contraception needs to be implemented. Adoption laws need to be more accessible and less burdensome for those who have made the decision to allow someone else to raise their child. Ireland needs to look at what it is doing for these women in crisis but abortion is a cruel solution and certainly not a more compassionate solution than those of our past. The end result of legal abortion is equal to or even worse than what happened in mother and baby homes in the past – dead babies and broken mothers for sure, but no national outcry for the injustice of their deaths.

8. We are a mature, modern and progressive society that should allow for abortion on demand because it is a fact of life that women get pregnant when they do not want to.

Q. What is the measure of a truly mature and progressive society? Is legalising abortion representative of a society that is progressive?

A. In this debate, the subliminal message from the repeal campaign is that we are a modern, progressive society that has left behind the dark days of the past and is now much more enlightened. As such we are able to have a law that allows for abortion because we are more mature than our 1983 counterparts. But are we really? In all other areas of law, there has been a shift towards inclusivity and equality that has marked us as a progressive society. As such we have discarded laws that discriminate against skin colour, religion, gender, sexual orientation, marital status, disability and much more. In Ireland in particular, we have implemented the European Convention on Human Rights, signed and ratified the Convention on the Rights of People with Disabilities, held a Children’s Referendum making it clear that our children are cherished members of our society and should have a voice in things that affect their lives. We are a progressive society with equality, justice, compassion and parity of esteem at the forefront in our laws. Abortion, which allows one section of society to trample on the basic human rights of another vulnerable section of society, which encourages the killing of disabled babies and babies that are the ‘wrong’ gender, babies that have no voice as yet, is NOT progressive. It is a massive step back in time to attitudes and ideologies that we claim to have left behind. The mark of a progressive society is how it treats its weakest, most vulnerable members and Ireland is proving itself on that front, including the 8^th Amendment, which protects the right to life of the unborn child. “An efficient and effective constitution allows government to function to protect the lives and liberties of citizens without violating the rights of some to provide gains to others.”

9. Abortion was not legal in 1983. There was no need to insert the 8th Amendment at all. “The 8th Amendment was inserted to curtail female sexuality.”

Q. Was there really no need to add the 8^th Amendment in 1983? Why was it added?

A. Firstly, the 8^th Amendment was voted on in a referendum of the people, the majority of whom voted in favour of it. That included women. Women voted for this amendment too and no matter how the repeal campaign try to cloud that fact, it still remains a fact. Women decided to insert an amendment giving constitutional protection to their unborn children. Now the repeal campaign continually try to get us to believe that these women were under the spell of the Catholic church, under the thumb of their husbands, under the oppression of the anti-women, pro-life groups and had not the opportunity nor the intelligence to vote otherwise. I find this attitude quite insulting to those women who voted to protect the life of the unborn in 1983. As with all referenda, this 1983 vote was by secret ballot. No matter who was oppressing women, had they wanted to vote against the 8^th Amendment, they could have done so and nobody would have known. The repeal campaign insinuates that women who vote against abortion are repressed, ignorant, controlled and old fashioned. The underlying message is that women who are young, modern, intelligent and progressive want to legalise abortion and any woman who disagrees is a relic of a bygone era and therefore obsolete.

If one reads the debates in Dáil Éireann in the run up to the 1983 referendum, it is clear that there was a desire to expressly add the right to life of the unborn into the Irish Constitution to make sure that this right to life had the same benefit of constitutionality that our other rights enjoy. It was in the shadow of the American court judgements that the unborn child had no rights enshrined in the Constitution of USA that the Irish citizens fought to have this right explicitly noted in the Irish Constitution.

The anti-amendment group at that time argued that there was no need to expressly declare the right to life of the unborn, that it existed already along with the other unenumerated rights. This we now know is not the case. The Supreme Court has decided that the only protection the unborn child has is found in the 8^th Amendment. How forward thinking were the people in 1983 that they foresaw the eventual lobby for legalising abortion and strengthened the right to life of the unborn in the constitution? Not quite the ignorant, relics that the repeal campaign would make out that they were.

As for curtailing women’s sexuality…should we even take this charge seriously at all? Or is it the usual rhetoric of the militant feminists who want to blame every perceived slight against women on the deeply ingrained misogyny of the Irish psyche. The law has provided in every way for the sexual independence of women who can choose to engage in whatever sexuality they wish. What the law has not provided is a way to intentionally destroy a human life in the name of sexual liberty.

 Written by Brónagh Hayes

Law Student BA (Hons) Law, LLB