Sunday 22 October 2017

Dearbhail McDonald: At last, compassion enters the debate on abortion

A RARE dove has descended on the perennially divisive abortion debate in recent days. It is the dove of compassion and moderation.

For more than 30 years, the abortion debate has been dominated by voices at the extreme ends of the pro-life/pro-choice spectrum.

This polarisation has silenced the more temperate and nuanced middle ground and acted as a barrier to the implementation of appropriate termination-of-pregnancy laws.

The Joint Committee on Health and Children, chaired by Fine Gael TD Jerry Buttimer, deserves huge credit for demonstrating that a considered and compassionate debate about abortion is possible.

By failing to clarify in law the import of the 1983 pro-life amendment, politicians left it up to the Supreme Court to say what it means in the now infamous X case (1992). It ruled that abortion was legal where there was, on the balance of probabilities, a real and substantial threat to the life of the mother, as distinct from her health. That risk to life includes the threat of suicide and the electorate has twice refused to remove this.

Speaking in a personal capacity, retired Supreme Court Judge Catherine McGuinness argued that the court's ruling in the X case was an authoritative interpretation of the 1983 amendment.

Despite the fact the Government has committed itself to implementing X (and X alone), yesterday's debate was not dominated, as expected, by the issue of suicide. Much of it surrounded the fate of pregnant women whose unborn have fatal foetal abnormalities, which, strictly speaking, fall outside the narrow confines of the X case.

Legal academic Jennifer Schweppe, who is heavily pregnant, argued that a referendum was not required to cover such cases as the constitutional right to life of the unborn was not engaged if the foetus did not have capacity to survive outside the womb.

The committee heard from veteran abortion-debate lawyers such as the prominent pro-life campaigner William Binchy, who called for a referendum to address X, a decision that he believes is flawed.

It also heard from a new generation of younger lawyers, who warned that Ireland could find itself back before the courts here and elsewhere unless issues such as fatal foetal abnormalities and inevitable miscarriage are dealt with.

The intense focus by TDs and senators on the constitutionality of abortion for women whose unborn have fatal foetal abnormalities represent a major shift in political sands. The shift is not due to gender or generation alone: the Government has previously told the European Court of Human Rights that it is arguable that such cases may already be constitutional.

Can the Government afford to ignore broader, ancillary issues that may give rise to future legal challenges?

It now has the benefit of a draft termination of pregnancy bill, a template drawn up by barrister and GP Simon Mills.

Dr Mills, who admitted that he published the bill with trepidation, hoped that the draft law – "a convincing first stab" at a termination of pregnancy law – could move the abortion discussion on from rhetoric to resolution.

The hearings are helping to dampen hysteria and break down rhetoric. Hopefully, they will also facilitate a long-overdue legislative resolution too.

Irish Independent

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