I had some initial misgivings about the structure of the Oireachtas Joint Health Committee session last week. We were charged with the task of hearing testimony and preparing a report for the Health Minister regarding legislation for abortion in Ireland.
The three-day hearings would hear from medical professionals on the first day, legal/constitutional experts on the second and interested parties (religious groups and atheists, organised campaigners for and against liberalised abortion laws) on the third.
As a legislator, I looked forward to hearing from, and questioning, the experts. My reservations concerned day three. In the first instance, I am a firm believer in the separation of church and state. This arrangement is good for both parties, as is evidenced by the fact that the United States, a republic which enshrines this rigid wall of separation in its constitution, is the most religiously observant, and the most religiously tolerant and diverse of the western democracies.
Secondly, pro- and anti-abortion pressure groups (please call them what they are, not this "choice/life" nonsense) were not there to inform, but to proselytise on behalf of their position. Persuasion, not information was their business. Processing facts provided by experts was ours.
At the end of day two, my colleagues and I had learned many such facts. Ireland is a very safe country in which to give birth, with one maternal death per 12,000 deliveries. This is a similar rate of maternal death to that which is seen in most developed countries with socialised health systems. It is better than most – one of the best in fact. Termination of pregnancy is routinely carried out in Ireland in situations where the pregnancy poses a real threat to the life of the mother. There are approximately 30 such cases per year. The foetus/baby is never deliberately killed, but its death may be an inevitable consequence of early termination.
There is no evidence that abortion is being, or has been, denied to women who need it to save their lives, by virtue of religious or other scruples on the part of doctors. Although medical abortion remains illegal under the Offenses Against the Person Act (1861), no doctor has been prosecuted for performing a life-saving termination. There is thus, a conflict between the statue book and the Constitution as a result of the ruling of the Supreme Court in the X case (verified by the voice of the people in two referenda), a ruling which permits abortion to prevent the death of the mother, including death from suicide. Abortion has, however, never been performed in Ireland to save a pregnant woman from suicide.
The following positions were widely but not uniformly accepted. The constitutional/legal conflict gives rise to a 'Doctor's Dilemma', creating potentially dangerous ambiguity and uncertainty. The Masters of the Dublin maternity hospitals, representatives of smaller obstetric units and the Institute of Gynaecology all expressed a fear of prosecution and imprisonment, and called for legislation and regulation to protect them if they performed life-saving abortion. A minority of obstetricians demur from this position, and quote the constitutional protection and absence of prosecutions as evidence that legislation is redundant. The legal profession seems to be more divided, with some legal experts backing the call for legislative clarification, and a large number of others stating that existing constitutional guarantees more than suffice to protect doctors and pregnant women from the legal consequence of this choice.
Some witnesses called for even greater "liberalisation", advocating legislation which would allow abortion for severe foetal abnormality. Some believed that this would require further constitutional amendment, some believed that it would not. None of the experts suggested that the legislation should allow abortion on demand.
Several of those who were invited as expert witnesses as opposed to interested parties, were in fact prominent members of activist organisations. When one of these strayed from her area of considerable expertise, into forensic and sociological speculations for which she was not qualified, I expressed my concern. When a legal expert who had a long-established record of involvement on one side of the debate suggested that the Supreme Court and the citizenry had both made the wrong decisions (in the case of the people – twice) and could be ignored, I asked if he was in fact suggesting a coup d'etat against our Constitution.
I had originally intended skipping the third day as a conscientious objector, but ultimately decided that it "was my job" to attend as my committee colleagues (a good bunch by the way – led by a great chair in Jerry Buttimer) had decided on this structure.
That third day was less pleasant, and in my humble opinion, unhelpful. There was an air of arrogance about the Catholic clergy and the way they addressed questions, a near-callous heartlessness about certain pro-abortionistas and more than a whiff of wild-eyed fanaticism and rudeness about some of the lay anti-abortion activists that demonstrated why calm rational debate about this issue is so difficult.
The arguments of the anti-abortion side could be summarised as follows: Irish doctors and women are safe under the existing constitutional arrangements and do not require additional legislative protection. Abortion is never the indicated treatment for suicidal ideation (and the weight of psychiatric opinion did seem to favour this position). Legislation which included suicidality (in line with the Supreme Court) would be abused leading to a dramatic increase in abortion as had occurred in other countries where a similar "soft" indication (ie mental health) had been legislated for.
The logic of this position, pointed out by many of the committee members, was that women would lie, and that doctors would either connive with, or be duped by, their attempts to use spurious suicidality as a pretext for illegitimate "social" abortions. While this was denied by the anti-abortion side, no credible alternative mechanism for their feared surge of abortions, despite legislation and regulation, was offered.
I believe Dr Reilly will offer legislation which will bring our laws in line with our Constitution. It will probably save no mother's life that would not have been saved anyway under the Constitution, but it will provide certainty. I for one will urge that it has watertight regulations regarding suicidality. I would advocate that it will be audited, and if an unexplained surge of abortions (remember about 30 a year now) occurs, the regulation must allow for corrective action.
Maybe I am being naïve, but sincere opponents of abortion who wish to ensure the safety of mothers-to-be while protecting the unborn, should remember one thing when confronted with propaganda (in truth hysterical, and nearly uniformly religious propaganda) that "abortion floodgates" will open due to malfeasant manipulation of the suicide clause. Article 40.3.3 of our Constitution, which guarantees the right to life of the unborn, provides a unique protection. It can only be removed by the people in referendum. Only the Government can advance a referendum to overturn it. It has survived testing in European courts and is sacrosanct.
Finally, a word of advice to the anti-abortion lobby. It is apparent to me that much of what goes on in abortion clinics, specifically termination of mid- and occasionally late-term foetuses, is nothing short of infanticide. My personal opposition to this practice, I guess, makes me "anti-choice", in the sense that there is no human right-to-choose-to-kill-someone-else. But, averring that an early embryo which has, as yet, no neurological function, no awareness, no consciousness, is a "person" in the very same sense that a week-old baby is a person, is not logically sound. It is a form of life, in the same sense that a sperm, or a cancer cell growing in a dish, is a form of life. It is not yet a person. The legal existence of fertility clinics and morning-after pills provides testimony that our society in fact believes this too.
Redefine yourselves not as defenders of life, but as defenders of people , including very small people in their mother's wombs. Fight the right fight both here and internationally. You'll do better.
John Crown is an independent member of Seanad Eireann for NUI, and a consultant oncologist. Twitter: ProfJohnCrown.