Today a conference is being held in Athlone entitled ‘Abortion, Disability and the Law’ which is being jointly hosted by the Anscombe Bioethics Centre and the Consultative Group on Bioethics of the Irish Catholic Bishops’ Conference. Please see addresses below by:
- Bishop Kevin Doran, Bishop of Elphin and Chair of the Bishops’ Consultative Group on Bioethics
- Professor Gerry Whyte, Professor of Law at Trinity College, Dublin
- Dr Helen Watt, Senior Research Fellow at the Anscombe Bioethics Centre
Address by Bishop Kevin Doran – ‘Welcoming Children with Disability’
None of Us Has Arrived:
As I look around the room here, I see people of all ages. I see women and men; tall people and others who are not so tall. We each have our unique gifts and strengths. We also have what the psychologists sometimes politely call our “areas for growth”. We are all on a journey; none of us has arrived.
We read in the Book of Genesis that “God made man in his own image; male and female he made them”. Have you ever wondered what that means? It has nothing to do with our appearance, or any of our physical attributes. There are no two of us the same. When we say that we are made in the image and likeness of God, it is another way of saying that we share in the goodness and beauty and truth of God. God’s love is part of our DNA; we are created for relationship with God who, in partnership with our parents, has willed us into existence and wants to share his life with us.
A New Way of Looking at Disability
Back in the jubilee year 2000, the Archdiocese of Dublin published a little booklet called “it’s my church too”. It was an invitation to parish communities, at the dawn of a new millennium, to imagine how people with disability, who had often been hidden away in the past, could be facilitated in participating more fully in the life of the Church. We installed loop systems, ramps, accessible entrances. People with hearing impairment not only had interpreters at the International Eucharistic Congress, but a number of them presented workshops in the main Congress programme. We began to talk about people with disability, rather than about disabled people. The focus now is on the person, not on the disability. And people with disability, like the rest of us, are all different. Just like the rest of us, have their gifts and their strengths and their personal “areas for growth”. They, too, are made in the image of God and called into relationship with him.
While it is possible to approach the inclusion of people with disability from the perspective of faith, I think we need to say quite clearly that this is not just a nice religious idea. It is a basic operative principle of our civil society and has the force of law.
In 2003, Ireland hosted the Special Olympics, World Games. People with intellectual disability from all over the world were welcomed in every corner of Ireland, not primarily because of what the might achieve, but because of who they were.
In 2005, the Oireachtas passed the Disability Act, which defines disability, in relation to a person, as “a substantial restriction in the capacity of the person to carry on a profession, business or occupation in the State or to participate in social or cultural life in the State by reason of an enduring physical, sensory, mental health or intellectual impairment”. The Act makes provision for people with disability to have access to buildings and services, including education and transport, and to be facilitated in gaining employment.
The point is that, in the matter of how we respond to people with disability, there is no huge gap between faith and reason. As Pope John Paul II was inclined to remind us, both faith and reason seek the same truth. They simply approach it from different directions. Just as reason leads us to recognise the continuity of every human life from fertilisation to natural death, so faith allows us to see each person as having his or her origins in the intention of a loving God and his or her fulfilment in eternal life. While Christian morality is inspired by the Gospel, it is always in keeping with reason. Morality, in its essence, is practical reason.
Welcoming Children With Disability
In his letter of encouragement “Amoris Latitia” (The Joy of Love), Pope Francis tells us that “The gift of a new child, entrusted by the Lord to a father and a mother, begins with acceptance, continues with lifelong protection and has as its final goal the joy of eternal life” ( AL, 166). In the midst of all the short term objectives and long-term goals which we have for our children, Pope Francis identifies the “final goal”, which gives meaning to all the others and by which we are in a very real sense defined.
Elsewhere in the same letter, the Pope speaks about how the Church “with special gratitude…. supports families who accept, raise and surround with affection children with various disabilities” (AL 82). There is a recognition here that welcoming a child with disability involves significant challenges for parents, which they should not be expected to carry alone. “These challenges include the understandable apprehension which accompanies a diagnosis of disability either before or after birth. There may be added challenges around communication, mobility, or even physical survival. There is the concern to protect the child from exposure to any kind of negative social reaction, while at the same time launching him or her, to whatever degree is possible, into the wider world. And then there is the anxiety about what will happen to him or her “when we are gone”.
The answer to many of these questions is a supportive community and so, when Francis speaks of the Church “supporting” parents with gratitude, he is not just talking about smiling at them as we pass by. Alongside a tangible decline in our sense of community, there has been an increasing dependence on “society”, which is really a poor substitute. (Cf Karol Wojtyla).
Unborn Babies with Disability
Unborn babies with disability, like adults with disability, are first and foremost people. If the inclusion of people with disability is a characteristic of a civilised society, why would we accept discrimination against unborn people with disability, simply because of their disability. Their disability certainly limits their capacity to act, but it doesn’t define them. On the other hand, the manner in which they are welcomed and cared for often enhances their capacity in ways that people might never have imagined, not least their capacity to be a focus of love in the family and in the community.
We need to consider, for a moment, the possible purposes of pre-natal diagnosis. It may be possible to identify a medical condition which can already be treated in the womb, or to prepare in advance for some treatment that will be required as soon as a baby is born. It is arguable that, in some cases, it may help a couple to be prepared in advance for the birth of a child with some genetic malformation or with special needs. Increasingly, however, pre-natal diagnosis is thought of and used as a means of screening out babies who, in the eyes of adults, should not be brought to birth. The New Charter for Healthcare Workers, published by the Vatican in 2017, has the following to say:
The purposes for which prenatal diagnosis may be requested and performed must always be for the benefit of the child and of the mother…. Prenatal diagnosis “is gravely opposed to the moral law when it is done with the thought of possibly inducing an abortion depending upon the results: a diagnosis which shows the existence of a malformation or a hereditary illness must not be the equivalent of a death sentence. (Pontifical Council for Pastoral Assistance to Healthcare Workers, New Charter for Healthcare Workers 2017, 35)
Healthcare Professionals As Agents of Healing
I find that people are sometimes surprised when I say that the Church is not against death. The reality, however, is that death is part of the human condition. It is an essential element of the Church’s mission to help people to prepare for death, in the hope of the Resurrection. The first references to this, our “ultimate end” are already to be found in the Rite of Baptism. So, we are not against death. But we do see each human life as a gift from God, which is not ours to dispose of.
I think it may be helpful to explore the difference between accepting death and causing death, with particular reference to healthcare. Healthcare professionals, of necessity, have to be able to accept death. Part of the relationship of trust that they have with their patients is that they tell the truth but, even when the truth is that they can offer no hope of healing, they continue to support life through ordinary means, until death comes. This applies whether patients are young or old, or even unborn.
Conscience is the process of making judgements based on truth, with a view to doing what is good. In healthcare, the truth concerned includes the facts of science and economics, but crucially, it must also include the truth about the human person and the meaning of his or her existence. Fidelity to the judgement of a well-formed conscience is crucial, not only for the well-being of the patient, but also for the integrity of the healthcare professional.
With the consent of the patient (or the parents, in the case of a child) healthcare professionals are given a unique access to the human body, for the express purpose of preventing and healing illness. They provide care for those who cannot be healed. There is nothing in the nature of healthcare that would suggest that the role of a healthcare professional ever includes intentionally bringing about the death of the patient, either by some action or by failing to act. Both Pope John Paul II and Pope Francis have spoken specifically about the responsibility of healthcare professionals in the light of this unique relationship of trust.
A unique responsibility belongs to health-care personnel….Their profession calls for them to be guardians and servants of human life. In today’s cultural and social context, in which science and the practice of medicine risk losing sight of their inherent ethical dimension, health-care professionals can be strongly tempted at times to become manipulators of life, or even agents of death. In the face of this temptation their responsibility today is greatly increased. Its deepest inspiration and strongest support lie in the intrinsic and undeniable ethical dimension of the health-care profession, something already recognized by the ancient and still relevant Hippocratic Oath, which requires every doctor to commit himself to absolute respect for human life and its sacredness. (Pope John Paul II, Evangelium Vitae, 89)
And
Dear friends and physicians, you are called to care for life in its initial stage; remind everyone, by word and deed, that this is sacred — at each phase and at every age — that it is always valuable. And not as a matter of faith — no, no — but of reason, as a matter of science! There is no human life more sacred than another, just as there is no human life qualitatively more significant than another. The credibility of a healthcare system is not measured solely by efficiency, but above all by the attention and love given to the person, whose life is always sacred and inviolable. (Pope Francis, Address to International Federation Of Catholic Medical Associations, 20 Sept 2013)
In many jurisdictions where abortion is already legally permitted, Healthcare professionals who refuse to take a human life for reasons of conscience are regarded as troublesome and unreliable employees and not good candidates for promotion. By contrast, the New Charter for Healthcare Workers states that:
“Besides being a sign of professional integrity, a healthcare worker’s earnestly motivated conscientious objection has the noble significance of a social denunciation of a legal injustice that is being perpetrated against innocent and defenceless lives”. (New Charter, 60)
The manner in which conscientious objection is interpreted in the so-called “Protection of Life in Pregnancy Act” gives rise to real concern. Doctors and nurses are allowed under the Act to opt out of providing or participating in abortion, provided they refer the patient to someone else who will perform the procedure. In other words, they are still required to participate in what they believe to be fundamentally immoral. Healthcare administrators have no recourse to conscientious objection.
The difficulty here is that, in our liberal democracy, people who provide services are regarded as “delivery people” with no personal investment in what they deliver. The “customer is always right”. It is, of course, very necessary that “healthcare delivery” should be efficient and effective, but it is a cause of concern when society focusses to such an extent on delivery that the essential meaning of healthcare and the essential role of the healthcare professional as “healer” and “advocate for life” is lost sight of. In such a scenario there is no room for the personal conscience of the healthcare professional.
ENDS
Address by Professor Gerry Whyte – Repeal or replace? The legal implications of amending Article 40.3.3
In this paper, I propose to examine the various options in relation to constitutional change to abortion policy currently being considered by the Joint Committee on the Eighth Amendment, though focusing primarily on the proposal that the provision introduced in 1983 simply be deleted from the Constitution. (Though it seems to me that such a move would also require minor consequential amendments to the provisions on the freedoms to travel and to obtain and disseminate information introduced in 1992 if only to avoid the retention of a puzzling provision in the Constitution.)
Repeal the Eighth
Just over a year ago, I argued that, just as one cannot step into the same river twice, a simple repeal of the Eighth Amendment will not take us back to the constitutional position on abortion that obtained in 1983 prior to the enactment of Art.40.3.3. In particular, the act of repeal will not give the Oireachtas a free hand to legislate in relation to abortion as the Constitution will remain an important factor shaping abortion policy in a very liberal direction. I want to explain this argument and also to take account of subsequent reaction to it.
To begin to do so, we need to ask, what was the constitutional situation on 6 October 1983, the day before the Eighth Amendment came into effect? While the Constitution contained no explicit provision in relation to abortion, it was clear that it had potential to shape the development of national policy on this question. On the one hand, the courts had identified a right of marital privacy that, according to supporters of Art.40.3.3, might at some point be interpreted by the courts to encompass the right of a woman to terminate her pregnancy. On the other hand, in a number of cases, some members of the judiciary had made non-binding statements to the effect that the Constitution implicitly protected the right to life of the unborn. Had Art.40.3.3 not been enacted in 1983, the courts might have shaped abortion policy by ruling definitively, in an appropriate case, as to how these competing rights were to be balanced (and, indeed, the possibility that the courts might liberalise the law on abortion was arguably a key factor leading to the enactment of Art.40.3.3). An alternative possibility, at least in theory, was that the Oireachtas might have legislated on this issue. In particular, the Oireachtas could have decided that a balance had to be struck between the mother’s unquestioned constitutional rights to bodily integrity, privacy and autonomy and the constitutional right to life of the foetus. Had that happened, the likelihood is that such legislation would have been upheld by the courts unless it was “so contrary to reason and fairness as to constitute an unjust attack on some individual’s constitutional rights”. (This is the formula subsequently adopted by the Supreme Court in Tuohy v Courtney (1994) for determining when the courts could intervene to set aside legislation that seeks to balance competing constitutional rights.)
The decision of the People to enact the Eighth Amendment significantly changed the constitutional situation. Now any legislation had to comply with the principle that the right to life of the foetus was equal to that of the mother. By implication, a pregnant woman could not rely on her other constitutional rights, such as the rights to bodily integrity, privacy and autonomy, in support of a claim to be permitted to terminate her pregnancy. As the Supreme Court majority held in Attorney General v X, a pregnancy could only be terminated under Irish law where this was necessary to avert a real and substantial risk to the life of the mother.
Supporters of the current campaign to repeal the Eighth Amendment argue that the simple deletion of the Amendment from the Constitution will essentially take us back to the constitutional position that obtained on 6 October 1983, to a situation in which proportionate limitations on the constitutional rights of the mother to have an abortion may be justified by an objectively justified interest in preserving foetal life. While I accept that this correctly describes the situation that obtained prior to the enactment of the Eighth Amendment and while I accept that the text of the Constitution following any deletion of the Eighth Amendment would, of course, be the same as it was before that Amendment was enacted, a closer examination of the situation reveals a new element present following the deletion of the Eighth Amendment that was not present in 1983. This is the explicit decision of the People to remove constitutional protection from the unborn. In my opinion, that factor has to be taken into account by both the Oireachtas and the courts in evaluating what might constitute an objectively justified interest in limiting the constitutional rights of the mother. In particular, I contend that it means that the Oireachtas would not have the same freedom of manoeuvre post any deletion of the Eighth Amendment as it had in 1983.
Simply abolishing equivalence of right to life of mother and unborn?
In the first place, in my opinion, a decision to delete the Eighth Amendment removes all constitutional protection from the right to life of the unborn and it is not the case that it merely removes the existing constitutional equivalence between the right to life of the unborn and that of the mother, leaving some residual constitutional protection for the right to life of the unborn. The Eighth Amendment has two elements. First, it acknowledges the right to life of the unborn and, second, it provides that the State has to have regard to the equal right to life of the mother in its laws defending and vindicating the right to life of the unborn. Deletion of the Eighth removes both elements; in particular, it withdraws constitutional protection from the right to life of the unborn. A more limited objective of removing the equivalence between the right to life of the mother and that of the unborn could be achieved by simply repealing or replacing the word “equal” in the existing text.
Continued existence of right to life of unborn?
Moreover it should be noted that Art.40.3.3 provides the sole constitutional protection for the right to life of the unborn and, in my opinion, it is not possible to argue, post deletion of the Eighth Amendment, that the right to life of the unborn still enjoyed some residual constitutional protection by virtue of other provisions of the Constitution. In Roche v Roche [2010] 2 IR 321, dealing with the constitutional status of IVF embryos, Hardiman J in the Supreme Court took the view that Art.40.3.1 guaranteeing, inter alia, the right to life of each citizen, did not apply to a fertilized in vitro embryo and his reasoning on this point also appears to cover the situation of an implanted embryo. More recently, Humphreys J in I.R.M. v Minister for Justice and Equality [2016] IEHC 478, (29 July 2016) expressed the view that the unborn enjoys constitutional rights protected by Art.42A. However this decision dealt with what possible constitutional rights of an unborn child the Minister had to take account of when deciding whether or not to deport its father and did not concern the actual right to life of the unborn. (Other High Court decisions deny that the unborn enjoys any constitutional rights other than the right to life.)
The only way it would seem possible to impose some limits on the right to abortion would be to read the decision of the People to remove constitutional protection for the unborn as somehow still subject to an implicit right to life of the unborn. However the argument that the power of the People to amend the Constitution was subject to the natural law rights of the unborn was rejected by the Supreme Court in the Abortion Information Bill reference in 1995. In the course of its judgment, the Supreme Court said:
“The people were entitled to amend the Constitution in accordance with the provisions of Article 46 of the Constitution and the Constitution as so amended by the Fourteenth Amendment is the fundamental and supreme law of the State representing as it does the will of the people.”
Unless one can draw a relevant distinction in this context between natural law and some other possible restriction on the People’s power to amend the Constitution, it seems to me that this decision means that the simple deletion of the Eighth Amendment will have to be interpreted as an unqualified decision to remove constitutional protection from the unborn.
Doctrine of proportionality
Thus any legislation enacted following the deletion of the Eighth Amendment would no longer be seeking to balance the competing constitutional rights of the mother and the unborn and therefore would not enjoy the benefit of the very deferential test of judicial review contained in Tuohy v Courtney. Instead, the constitutional validity of such legislation would depend on whether restrictions on the mother’s constitutional rights were rationally connected to a legitimate objective, impaired the mother’s rights as little as possible and were such that the effects on the mother’s rights were proportional to the objective. This proportionality approach is generally understood to require a more searching judicial scrutiny of legislation than the reasonableness approach of Tuohy v Courtney. It seems to me, moreover, that in deciding what is a legitimate objective and in deciding whether restrictions on the mother’s rights were proportional to that objective, the courts (and the Oireachtas) would have to take account of the decision by the People to remove constitutional protection from the unborn. So, for example, while the Oireachtas in 1983 could arguably have legislated for the restrictive abortion regime that currently applies in this jurisdiction, I consider that if the Eighth Amendment was deleted, any such statutory regime would probably be regarded as a disproportionate interference with the mother’s constitutional rights where the pregnancy posed a serious risk to the mother’s health, as distinct from a risk to her life (and, a fortiori, where the mother was pregnant as a result of rape or where there was a diagnosis of fatal foetal abnormality.) It is also arguable that in that situation, the courts could strike down any restriction on the mother’s right to an abortion (provided that the carrying out of the abortion did not endanger the mother’s health).
Reaction to my argument
When I advanced this argument over a year ago, it was challenged by a number of letter writers to The Irish Times, one of whom accused me of “scaremongering”. I note that since then, presentations to the Citizens’ Assembly and, more recently, to the Joint Committee on the Eighth Amendment, now see the outcome I have described as possible but unlikely. I further note, however, that none of these presentations have adequately addressed my argument that a popular decision to withdraw constitutional recognition from the right to life of the unborn would tie the hands of the Oireachtas (and the judiciary) when it comes to the question of protecting foetal life. Commentators referred to the experience in other jurisdictions where abortion law does take some account of the value of foetal life. However no jurisdiction has yet been identified in which a conscious decision was made to remove explicit constitutional protection from the unborn. Thus the experience in these jurisdictions might well have been relevant to a discussion of Irish law up until 6 October 1983 (when the Irish Constitution was silent on the issue of abortion and when the views of the People had not been formally expressed in a constitutional context) but is not directly relevant to the situation obtaining here after a repeal of the Eighth Amendment where the text would again be silent on the issue of abortion but only because the People explicitly decided to withdraw constitutional protection from the right to life of the unborn.
A number of these commentators also raise the possibility that the unborn might continue to enjoy an implied constitutional right to life but, for the reasons I have outlined above, I do not think that this outcome would be possible if the People decided to delete the Eighth Amendment. Even if, which I doubt, the unborn was deemed to enjoy an implied right to life following deletion of the Eighth Amendment, it is unlikely in the extreme that repeal would be interpreted as simply resurrecting an implied right to life that has the same application as the explicit right that is removed. The procedures in Arts.46 and 47 are designed to amend the Constitution so if the People rely on those provisions, as they must, to repeal the Eighth Amendment, it seems to follow that they must be intended to effect some change in the constitutional position to the detriment of the unborn. Moreover a decision to remove explicit reference to a constitutional right can surely only be understood as downgrading that right.
Some commentators have also pointed to the fact that the current generation of Irish judges are very deferential to decisions of the Oireachtas on matters of social controversy, arguing that the courts would be unlikely to invalidate any future legislation that sought to balance the rights of the mother with the interests of the unborn. It is certainly the case that Irish judges are currently very restrained when it comes to challenging legislation on controversial social matters. However two points are worth making in this context. First, legal history shows that periods of judicial restraint and judicial activism may alternate. This has certainly been the case in relation to judicial interpretation of the Irish Constitution. From 1937 until the mid-1960s, the courts generally took a very restrained view of the Constitution but then from 1964 to the early 1980s, Irish judges were quite active in recognizing implied rights that enjoyed constitutional protection. Since the early 1980s, that trend has admittedly diminished considerably but my point is that the fact that the current generation of judges may be very deferential to the Oireachtas when it comes to the protection of constitutional rights is no guarantee that a future generation of judges take the same approach and would eschew a liberal interpretation of the mother’s rights to privacy, autonomy and bodily integrity in the context of abortion. The second point is to repeat what I have already said, namely, that an explicit decision by the People to withdraw constitutional protection from the right to life of the unborn would be a distinctive feature in the Irish situation and would offer protection to a future Supreme Court if it decided to interpret the mother’s rights to privacy, autonomy and bodily integrity in an expansive manner.
But if I am wrong on this and if it is the case that the Oireachtas may have regard to the social value of foetal life when legislating on abortion, the experience in the US suggests that this might not afford much protection to the unborn. In case of Roe v Wade in 1973, the US Supreme Court struck down a Texas law that was equivalent to our Art.40.3.3 in that it banned all abortions other than those necessary to save the life of the mother. However in the companion case, Doe v Bolton, the Court also struck down a more liberal law from Georgia that permitted abortion where the pregnancy would seriously and permanently injure the health of the mother, or where the foetus would be born with a grave, permanent and irremediable mental or physical defect or where the pregnancy resulted from rape. Even this more permissive abortion regime was deemed by the US Supreme Court to infringe the mother’s right to privacy. This decision has attracted some criticism from some academics, even some who are pro-choice generally, on the ground that the Supreme Court exceeded its constitutional authority in this case by invalidating a law that represented what those commentators would consider to be a reasonable attempt to balance the competing constitutional interests at stake. However if a future Irish Supreme Court struck down such a law in the aftermath of a repeal of the Eighth Amendment, it could argue, unlike its US counterpart, that the Irish People had indicated that the foetus was to enjoy no constitutional protection and that the Supreme Court was simply giving effect to that decision.
Other options
Simple repeal of the Eighth Amendment is one of apparently six options currently being considered by the Joint Committee on the Eighth Amendment and I turn now to consider briefly the five other alternatives to straightforward repeal. I deal with these briefly simply because, unlike the position with regard to the proposal for simple repeal, there is a general consensus as to what each of these alternatives would entail in terms of how malleable future abortion laws would be under each alternative. As a preliminary remark, it should be noted that the Citizens’ Assembly recommended that Art.40.3.3 be deleted from the Constitution and replaced by a provision that would make it clear that the regulation of abortion law would be solely a matter for the Oireachtas, i.e., that any subsequent legislation could not be constitutionally challenged.
(i) Repeal the Eighth Amendment in light of proposed legislation published before the holding of the referendum – The publication of legislation in conjunction with, but not referred to in, a proposal to amend the Constitution does not impose any legal obligation on the Oireachtas to enact such legislation. Moreover, even if enacted, such legislation could be amended in the future without having to have recourse to the electorate.
(ii) Permit abortion in prescribed circumstances set out in the Constitution – Depending on the circumstances in which it would be proposed to permit abortion, this could result in a restrictive or a liberal abortion regime or anything in between. Moreover some of the likely grounds to be covered, such as rape or incest, might give rise to practical difficulties in determining when those grounds apply in a particular case. (However it would not be necessary to require that the crime of rape or incest be established through the criminal process before permitting an abortion to take place on these grounds and accompanying legislation could set out civil procedures for determining when such grounds existed). Any change to the prescribed circumstances would require a further referendum.
(iii) Provide constitutional immunity for a particular legislative regime – It would be possible for any proposed new text to refer explicitly to a specific piece of legislation that would regulate the provision of abortion. (This was attempted in the unsuccessful Twenty-Fifth Amendment to the Constitution on abortion that was defeated in 2002.) Any change to such legislation would probably require a further amendment. (The Twenty-fifth Amendment to the Constitution expressly provided that any proposal to amend the legislation referred to therein would require a further amendment.)
(iv) Provide constitutional immunity for any legislative regime – The Constitution could be amended in such a way that any legislation on abortion, even if not specifically referred to in the Constitution, would be immune from constitutional challenge by analogy with the current manner in which emergency legislation enacted pursuant to Art.28.3 of the Constitution cannot be constitutionally challenged. Any legislative regime would be immune from constitutional challenge and could also be amended in the ordinary way without recourse to the People.
(v) Replace the Eighth Amendment with text providing for abortion on broad grounds and/or expressing a rebalancing of rights – According to The Irish Times, this is the sixth option being considered by the Joint Committee on the Eighth Amendment. One would have to wait and see any proposed text before being able to offer a view as to its likely impact.
ENDS
Address by Dr Helen Watt – Abortion legislation and fetal anomaly: reducing harm without moral compromise
All human individuals, including those still living in and nurtured by their mothers, have rights concerning their own lives, however long or short those lives may be. That view is of course contested, but I will assume its truth in this presentation in order to focus on other things. I will argue from – not for – a stance of opposition to discriminatory targeting of any innocent human being, whether on the basis of location, age, dependency, state of health or level of ability. We are all equal, at least as regards our moral right to immunity from deliberate lethal attacks we have done nothing to deserve.
Abortion for fetal anomaly in fact gives every sign of being a form of abortion especially likely to cause the woman anguish and complicated grief:[1] complicated by the fact her baby’s death was chosen by her, with whatever sadness and reluctance. The woman’s violent loss of the child with whom she has lived for so many weeks can have a truly shattering impact on her, as research[2] and personal stories[3] show. Nor is it enough to appeal to the woman’s guardianship of her pregnancy and claim that this extends to a right to end it, even if this is not in the woman’s actual interests or those of her baby. It is no part of guardianship to choose to end a baby’s life, even for altruistic motives, or to authorise its violent eviction from the very basic, archetypally maternal personal shelter and support the pregnant woman is providing.[4]
In this presentation, I want to explore, not so much the issue of abortion per se, as the issue of how lawmakers should respond to unjust laws or bills, with abortion for disability as a case in point. How should we address an existing law or bill that lethally discriminates against some human beings, assuming a scenario where we lack the political power to block the bill entirely, or – in the case of a law already passed – to repeal it entirely in the short term? If we fail to protect all human beings in our restrictive amendments, will we ourselves be guilty of unjust discrimination? Or does that depend on, to begin with, our exact aims and choices, and what we intend that others choose? Can the legal situation in Britain, for example, where abortion is allowed up to birth for disability be addressed without at the same time addressing the injustice of abortion on other grounds, and at earlier stages? What, in short, are the moral constraints on sincere and well-motivated attempts to extend the protection of the law to more threatened individuals, though still not to all?
Selective bans versus ‘regulation’
In looking at this question, I want to distinguish between two ways of addressing unjust laws and bills.[5] I will argue that the first approach is morally allowable in principle, even if in practice it can create confusions and/or fail to protect those who could – and therefore prima facie should – be protected by more inclusive moves. The second approach, while also sometimes tempting to those who want to save lives and limit harm generally is nonetheless unfortunately ruled out in principle, or so I will maintain. While I realise that my focus on means as well as ends may seem to some unreasonably restrictive, I would hope that many here would accept the general principle that ‘the end does not justify the means’ – or not, at any rate, some means. It is not just good ultimate motives, but good aims or intentions all the way up our ‘chain’ of aims or intentions[6] that is necessary, if not always sufficient, for full respect for others and ourselves.
Let me begin, then, with the first approach to harm limitation: what I will call ‘selective banning’ i.e. focusing on one particular area in which it may be possible to achieve legal protection for some threatened human beings, or at least, to make some helpful public statement. For example, perhaps a liberalizing bill might be amended to prohibit abortion on the avowed ground of disability, even if abortion, at least before some general time limit, could still be performed on other grounds. Or perhaps abortions by D&E that dismember the fetus, and/or feticide, a lethal injection to the heart of the fetus, might be prohibited to allow at least some babies to survive those terminations which are not immediately destructive.
Risks of ‘selective ban’ approach
I should emphasise again that there can be serious practical objections to selective bans – for example, where it is possible to be more ambitious in the scope of those protected and/or where we risk sending out bad social messages by the limited scope of our amendment.[7] Such bad messages could be sent out by (for example) an amendment prohibiting abortion except where the baby has anencephaly: a move that could create serious confusion generally and also present some problems when collaborating with those who positively want abortion to be available on that ground (I will come back to this later on). As well as the issue of undermining respect for anencephalic babies – already a targeted and highly vulnerable group – there is the likelihood of sending out a very demoralising message to those parents expecting or mourning such babies who do not in any way doubt their child’s right to live.
Paradoxically, a less inclusive, perhaps more clearly arbitrary amendment simply to prohibit abortion for a particular condition such as Down’s Syndrome and thus minimise the harm of a bill going through may carry a lower risk of giving bad messages than one prohibiting abortion for everything but anencephaly. Lawmakers and lobbyists could focus their efforts, not negatively on children with other conditions, but positively on those with Down’s, while saying openly that they are themselves opposed to all abortions: nothing is conceded about the propriety of abortions in other cases which the Bill does not address. Certainly, children with Down’s should not be presented as ‘honorary able-bodied’ people[8] to whom the lethal discrimination supposedly rightly applied to those with more serious conditions should not be extended. This is clearly a minefield, and there are other, very real risks, not least the risk of making the liberalising bill more palatable to fellow-legislators via the amendment and thus more likely to go through.
In-principle permissibility of selective bans
Selective bans can, in short, raise genuine moral problems, and it can be wrong at least to propose and promote – if not necessarily to vote for – such prohibitions. All that said, though, selective bans as such clearly cannot be rejected out of hand. That applies particularly to countries like Britain where the abortion law is already a very bad one and where it would be very difficult if not impossible to reverse the damage all at once. More generally, any time we try to prevent any injustice, we are focusing on that specific evil and not on other evils, perhaps no less heinous, which are however left for another day. Even a proposed law prohibiting all abortions will not necessarily cover the destruction of IVF embryos, let alone other evils such as euthanasia, in a country that allows this. Failing a revision of the entire criminal code in such a way as to protect the rights of all, there is no escape from the need to single out particular threatened groups at particular times whom we may have some chance of protecting. Such proposed selective legislation does not ‘permit’ the remaining injustices in the sense of making them permitted,[9] but simply leaves them permitted whether or not those still permitted are specifically mentioned in the Bill. Of course, that also applies to legislation which would prohibit abortions in certain locations, and which again, might acknowledge explicitly that abortions will remain permitted elsewhere – i.e. the legal availability of some abortions is unaffected by the Bill. Here too, choosing not to try immediately to ban all abortions need not involve the intention that any be permitted – any more than a triage nurse in A&E after a natural disaster need intend that those not chosen to be treated therefore die of their injuries. Also worth noting is the fact that those who oppose all abortion, whatever their view of voting for selective bans, will often welcome or initiate moves to enforce existing selective bans where again, such moves need not constitute complicity with those abortions that remain within the law.
Selective bans during and after the passage of laws
Note that ‘selective banning’ involves both attempts to amend existing legislation, and also attempts to amend proposed legislation during the passage of a relevant Bill. For example, in Britain some legislators (a minority) voted against extending abortion up to birth for disabled unborn children during the passage of the Human Fertilisation and Embryology Bill 1990. Voting against this clause at the time on the one hand, and after the Bill has been passed on the other, would seem to be somewhat similar morally, even if there may be differences too. If one is at least potentially allowable as a last-ditch form of damage limitation, the other may well be allowable on the same grounds. Looking back to the Abortion Act 1967, there were some who wished to remove the disability clause at the time it was being debated, while more recently, the Abortion (Disability Equality) Bill proposed by Lord Shinkwin, a disabled peer in the House of Lords, is aimed at removing the same clause. Again, if it was right to try to remove the clause 50 years ago, to limit the harm of the impending law in terms of targeting disabled babies in particular, then it seems right, at least in principle, to remove the clause now.
‘Regulatory’ approaches to wrongful actions
I will return later to the opportunities and challenges that ‘selective ban’ approaches can present. For the moment, I will turn to a different approach to legislation: if selective bans are at least sometimes morally appropriate, what kind of legislative change am I claiming is always morally excluded? I will call this morally excluded change ‘regulation’ – by which I mean not just setting up a ‘regulatory body’, but any legislation that tells people how to prepare for or perform an unjust act, or otherwise aims to motivate them to perform or prepare in a certain way.
It can be very tempting to support legislation of this kind, in the hope of saving at least some lives and otherwise minimising harm; for example, harm to the woman who may find herself very quickly on the abortion ‘conveyor belt’, lacking all but the most minimal information on her abortion and on support available to have her child. However, as we think about requirements on abortion doctors, we need to remember that preparing to do wrong, as well as carrying out the final act perhaps in some amended version are themselves wrongful choices objectively, whether or not the person knows this. On a classic understanding of the principles of complicity, which though demanding are nothing if not logical, we may never intend a wrongful choice by another, any more than by ourselves. It would seem to follow that counselling or mandating the ‘lesser evil’ is something that has to be avoided:[10] muggers should not be told to steal in less violent ways, or child abusers to abuse children ‘more safely’. There is a crucial difference between, on the one hand, warning people to avoid some particular wrongful act above all, and on the other hand, giving them instructions how to perform or prepare for a perhaps slightly mitigated, but still clearly wrongful act. (Of course, none of this would affect advice or instructions that apply once the deed is done: just as dangerous drivers are expected to stop and look after their victims, abortion doctors can be expected to offer aftercare, and inform women of post-abortion counselling, hopefully counselling independent of those who do or arrange abortions.)
Avoiding ‘regulation’: some ambiguities
A law requiring doctors to give details of the baby’s disability on the abortion form, in the hope of preventing abortion for some less serious conditions, would appear to raise the objection that the doctor is being told effectively how to prepare for a possible abortion. Unless we are aiming not that any doctor use the form, but rather simply that it be circulated as a vehicle to advertise new abortion restrictions, it does seem that we are intending some doctors complete – or at least begin – specified abortion preparations. Similarly, to invite a doctor to make a case to a committee for ending the life of a particular disabled baby (as opposed perhaps to cross-questioning the doctor concerning the baby’s medical condition) does seem on the face of it to be asking the doctor to prepare for a possible abortion, albeit in ways that allow the abortion to be blocked if the committee is not convinced. Even in the standard British case of a doctor filling out a form, there is a general problem with requiring paperwork asserting that the demands of the law have been met as a condition of the abortion going ahead. By requiring doctors to complete such forms, are we not mandating necessarily wrongful preparation for a wrongful life-terminating act?
It is worth noting that superficially similar measures may constitute either a selective ban of, or regulation of an unjust action, depending on the details. One example would be a mandatory time period in between receiving adverse prenatal test results and having an abortion. Such a delay is certainly very desirable in itself: it would give the woman who has just received highly distressing news a breathing space to think about her pregnancy, get more information and access positive help. In principle, such a mandatory delay could be a mere selective ban – i.e. abortions within a certain time-frame simply would not be permitted. However, adding detailed instructions could in fact turn this legislation into ‘regulation’, in that abortion doctors might be required to complete paperwork giving the date on which test results were communicated as a condition of the abortion going ahead. If so, this is something to avoid, as we would then be back in the area of intending preparation to end a life – or at very least, intending the doctor do something he or she will in practice do very much as part of such preparation. As regards medical records of test results being given, and which show the stage of the pregnancy, it may be only via such records that we learn that the law has been breached regarding waiting periods and/or upper limits for abortion. However, standard medical records can perhaps be regarded as ‘existing background’ rather than as something whose completion in a specified form we ourselves would be mandating.
Should abortion doctors be required to give women certain information before doing the abortion? That sounds again very welcome but again, there is a concern that this involves our intending that abortion doctors undertake something they, and perhaps we too, see as preparation for abortion – particularly when the doctor records on the abortion form that the information has been given. There is also a practical objection: gynaecologists, even those not themselves implicated in abortion, will have relatively little experience of caring for disabled children and may not always be best placed to give parents balanced and accurate information on what such care involves. I would argue that it is better to mandate such information provision, not before an abortion, but after some already-completed action such as prenatal diagnosis (about which more shortly). In contrast, if we know that a doctor’s sole or overriding motive in providing information and recording that this was done is to ensure that an abortion can go ahead legally should the woman still wish it, this motivation will be at least a causal means to our end, and perhaps one we intend ourselves once we realise what is going on. The doctor’s aim to prepare is at any rate, an illicit and central part of what will promote the success of our overall plan.
Warning and punishing without complicity
We should also remember that it is possible to warn people of penalties for not doing something without telling people to do or otherwise intending they do what they would be punished for omitting. An example may help here: think of an older man who is pressuring a 16-year-old girl for sex. We can warn him that he will be punished for rape if he does not get the girl’s consent without in any way intending he get her consent for what we may still regard as an act of sexual exploitation. Something similar can be said about abortion: we can warn an abortion doctor of legal consequences if he does not get the consent of, say, a mentally disabled woman without telling him to get her consent or otherwise intending that he do so. Of course, the doctor may well regard our warning as an instruction how to do an abortion within the law: we can only try as best we can to minimise the risk of giving any such misleading impression. In any event, it is much more justifiable to penalize the absence of consent from the woman should this absence be discovered than to give the doctor an abortion-focused consent protocol, with the intention that he use it.
Mandating information after prenatal diagnosis
In any case, these worries would not apply to information required to be given, not before an abortion as such, but simply after a prenatal diagnosis by those responsible for the woman’s care at that point, whatever their connection with any possible abortion. Even if a particular test was morally unjustified, say, because it put the woman and her baby at unnecessary risk of miscarriage, having done the test and got a certain result, those responsible could have a legal as well as a moral duty to inform the woman and her partner of positive options and support available. (That would include discussing the possibility of fostering or adoption, at least in the case of parents not well placed to care for a child with a certain condition – for example, because their own health is very poor.) Many parents have said that they were inadequately informed about the condition diagnosed in their baby, and many have also said that the health care professionals they spoke to initially were in fact very negative and unsupportive about their child’s condition.[11] It is worth remembering that parents may be particularly vulnerable on first hearing the diagnosis and have difficulty even processing the information they are given, strengthening the case for mandatory delay as well as the offer of help should the child be born. It would be good to see a requirement that couples receive information on support available as regards, say, special schools, financial help from the State generally and, for babies with life-limiting conditions, perinatal hospice support.[12] To avoid negative and inaccurate communications, written information might be required to be offered that has been prepared by a charity providing support to individuals with the condition together with their families and carers. Wherever possible, the information should be designed for giving post-natally, and ideally should not include any reference to abortion, least of all a mention of abortion as if this were a possible ‘solution’ to the ‘problem’ of carrying a disabled child.
In addition to any general information provided, there should be an explicit offer to connect the couple with an affected adult or with parents who have cared for a child with the relevant condition. Such people are perhaps more likely than most to take an attitude to the disability which is both positive and realistic, and to show solidarity both with the couple and with the child they are expecting. Voluntary organisations exist connecting people in this way[13] – we will hear in the afternoon from Tracy Harkin of Every Life Counts – but there is no reason why the State should not signpost their services more often and indeed support such organisations, if only by helping with phone and travel costs of volunteers. Again, this offer should be required as following prenatal diagnosis, not as preceding abortion, not least because expectant parents who will in any case have their babies have a right to be supported too. More importantly, it is much easier to frame requirements for what happens after some wrongful procedure – including high risk and/or eugenic testing – than to frame requirements focusing on what happens before or during the wrongful procedure, at the risk of mandating or otherwise intending wrongful acts or preparations.
Political collaboration without complicity
Earlier in this presentation, I mentioned problems that can arise for lawmakers collaborating with colleagues who are not merely modest in their hopes of damage limitation but positively want and intend abortion to be available on certain grounds. Of course, here as elsewhere, to call this a wrongful aim is not to make a judgement on the person who has that aim, who may be entirely in good faith, even if his or her position is morally and legally indefensible. Whatever someone’s good faith, objectively wrongful choices on that person’s part should not, I believe, be deliberately invited or otherwise intended by more consistent life-respecting colleagues. This can happen even without any interaction, as when those who would welcome a complete ban on abortion but rightly or wrongly suspect they cannot achieve this might count on the exception-free Bill they introduce being amended by those who want to keep some abortions available – following which (wrongly-motivated) amendments, the Bill would have more chance of being passed. Far better if the more consistent life-respecting lawmakers present a suitably modest proposal in the first place and simply invite other, less consistent lawmakers to focus on that proposal alone. After all, there is no need for any lawmaker to intend the continued availability of those abortions which are in any case untouched by the Bill concerned.
Conclusion
I am aware that such interrogation of means may seem over-scrupulous to those confronting a culture where ‘conditional parenthood’ is tirelessly promoted, and more and more babies convicted of having a medical condition never see the light of day. In my defence, I can only say that those wishing to uphold human rights, including the right to life, should be in fact the first to oppose any suggestion that a good end justifies any means. If it were a re-zoning Bill in question, I hope that none of us would appeal explicitly to a corrupt politician to vote with the aim of crushing his enemies or endearing himself to organized crime. While we can certainly tolerate bad ‘parallel’ chains of reasoning whereby people have both good and bad motivations in what they do, we should never deliberately invite an intention which is corrupt or otherwise morally misguided. Good ends must be sought by good means only, and never by bad means.
As regards the legislation itself, I have been arguing that what I call ‘regulation’ where wrongful acts and preparations are intended by lawmakers, is wrong in principle: again, we must choose other, morally good means of making a bad situation better. These alternative means include selective banning of some bad actions and the mandating of other actions which are good or potentially good in the context in which they are mandated.
As regards abortion for disability in particular, the State certainly has a very strong interest in preventing this – in some ways even stronger than its interest in preventing abortion more generally. Aside from the loss to the child of its life – a massive impact in itself – and the ongoing damage to perceptions of parenthood which is no longer seen as calling for unconditional acceptance, the grief, regret and even despair caused for many aborting women is an extremely serious concern. Also highly concerning is the healthcare professions being alienated from their traditional role of promoting health and palliating suffering to assume the task of social exclusion and quality control of human lives. The aim should be to get – by good means only – as close as we can to a society that respects the rights of all, and supports all parents unequivocally in cherishing each and every child. Ireland today may not be exactly that society – too many slip through the network of support – but is close enough to win the admiration of those of us across the Irish Channel now aghast at the death toll 50 years after our own supposed reforms.
ENDS
For media contact: Catholic Communications Office Maynooth: Martin Long 00353 (0) 86 172 7678 and Katie Crosby 00353 (0) 86 862 3298
[1] Kersting, A., Kroker, K., Steinhard, J. et al. Eur Arch Psychiatry Clin Neurosc (2007) 257: 437. doi:10.1007/s00406-007-0743-1.
[2] A recent study comparing abortion to continuing the pregnancy in the case of a life-limiting fetal condition found that while both groups of parents were deeply affected by the experience, those who had abortions showed significantly more despair, avoidance and depression than those continuing the pregnancy. Cope, H., Garrett, M.E., Gregory, S., Ashley-Koch, A. Pregnancy continuation and organizational religious activity following prenatal diagnosis of a lethal fetal defect are associated with improved psychological outcome. Prenatal Diagnosis (2015) 35:761-8.
[3] For a pro-choice collection of such stories, see Brooks C. Our Heartbreaking Choices: Forty-Six Women Share Their Stories of Interrupting a Much-Wanted Pregnancy. Bloomington: iUniverse, 2008: 91. I take up some themes from this collection in Watt, H. Abortion for Life-Limiting Foetal Anomaly: Beneficial When and for Whom? Clinical Ethics (2017) 12: 1-10. doi: 10.1177/1477750916661979.
[4] Watt H. The Ethics of Pregnancy, Abortion and Childbirth: Exploring Moral Choices in Childbearing. New York and Abingdon: Routledge, 2016, especially chapter 3.
[5] These approaches are not exclusive, and ‘regulation’ can of course be morally permissible where the action regulated is permissible or potentially permissible. For more on these issues, see Watt, H. Addressing Unjust Laws Without Complicity: Selective Bans versus Regulation, in Jason Eberl (ed), Contemporary Controversies in Catholic Bioethics. Cham: Springer, 2017. Other treatments of voting to improve unjust legal situations include Finnis, J. Helping Enact Unjust Laws without Complicity in Injustice. American Journal of Jurisprudence (2004) 49: 11-42 (reprinted with additional notes as “Just Votes for Unjust Laws” in Philosophy of Law, vol. IV of Collected Essays of John Finnis, 436-66. Oxford: Oxford University Press, 2011) and Harte, C. Changing Unjust Laws Justly. Washington: Catholic University of America Press, 2005. See also the debate between these authors in Helen Watt (ed), Cooperation, Complicity and Conscience. London: Linacre Centre, 2005.
[6] Watt H. Double Effect Reasoning: Why We Need It. Ethics & Medicine (2017) 33: 13-19.
[7] Harte 2005.
[8] See the Anscombe Centre Submission to the Parliamentary Enquiry into Abortion on the Grounds of Disability.
[9] Finnis 2004.
[10] Watt 2017.
[10] Watt H. The Ethics of Pregnancy, Abortion and Childbirth: Exploring Moral Choices in Childbearing. New York and Abingdon: Routledge, 2016, especially chapter 3.
[11] See e.g. Redlinger-Grosse, K., Bernhardt, B. A., Berg, K., Muenke, M. and Biesecker, B. B. The decision to continue: The experiences and needs of parents who receive a prenatal diagnosis of holoprosencephaly. Am. J. Med. Genet. (2002) 112: 369–378. doi:10.1002/ajmg.10657; Riordan, M. Maternal serum testing: Is invasive testing a passing era? Bioethics Research Notes (2012) 24: 7-11; McGovern, K. Continuing the pregnancy when the unborn child has a life-limiting condition. Chisholm Health Ethics Bulletin (2012) 17: 1-12.
[12] For information including a bibliography on the perinatal hospice approach following prenatal diagnosis of a life-limiting condition, see the website www.perinatalhospice.org.
[13] Examples of such peer support networks include anencephaly.info, Be Not Afraid, One Day More, Every Life Counts, and Prenatal Partners for Life.
