Saturday 24 August 2019

Time to speak out on Eighth Amendment

Ruling in the distressing life-support row could open the door for more, not less, such cases to come before the courts, writes Dearbhail McDonald.

High Court President Mr Justice Nicholas Kearns ruled that life support could be withdrawn in the best interests of the unborn
High Court President Mr Justice Nicholas Kearns ruled that life support could be withdrawn in the best interests of the unborn
Dearbhail McDonald

Dearbhail McDonald

The grotesque stranglehold over Irish women's bodies and minds wielded, still, by the Catholic Church over many aspects of Irish social and legal policy, has caused me to give short shrift to many of the moral edicts from the mitred men in recent years.

I am Roman Catholic by birth and upbringing, and grateful for it too. But, like many others, I've found a way to maintain a strong faith without recourse to distorted institutional positions by the Church hierarchy that show, at best, scant disregard and, at worst, sheer contempt, for any notion of female autonomy or personhood.

Call me an a la carte Catholic, if you like, but faith still matters to me. And as I sat, reluctantly, through the distressing High Court case brought by the father of a brain-dead mother in the early stages of her third pregnancy, I couldn't stop thinking about those old, familiar and comforting words in Chapter 3 of the Old Testament's Book of Ecclesiastes.

'To everything there is a season', with its eloquent verses speaking of a time to be born and a time to die, was turned into a maudlin song by folk band The Byrds in the 1960s. It also featured, near comically, in the 1984 movie Footloose, when Ren McCormack - a Chicago teen played by Kevin Bacon - implores a conservative town council to overturn its ban on rock music because Ecclesiastes assures us there is a time to dance.

As I watched a distraught family on St Stephen's Day embrace, helplessly, after three judges ruled doctors could switch off the woman's life supports, I thought of that other verse in Ecclesiastes, the one that says there is a time to keep silent and a time to speak.

Now is the time to speak.

To speak of the travesty of forcing this family to the High Court when there was no prospect of life for this brain-dead woman and no prospect for her unborn, for whom a specially convened three-judge High Court found was facing "nothing but distress and death".

To speak of the unforgivable, chilling effects of the long pall cast by the Eighth Amendment to the Constitution which, as this case demonstrates, prevents doctors using their best clinical judgment in the interests and wishes of their patients and loved ones.

To speak of the visceral cowardice of legislators who are happy to parade Ireland internationally as the best little country for the protection of the unborn, while failing to articulate the scope of that constitutional right and casting women, their families and their clinicians into agonising court battles.

This life support case should never have reached the Four Courts at all, although the Divisional Court led by High Court President Mr Justice Nicholas Kearns did not explicitly state this.

On the contrary, the 29-page ruling - understandably rushed owing to the huge pressures of time, circumstances and the legal issues involved - seems to open the door to more, not less cases that will come before the courts.

This is not least because of a new string the court has added to the bow of Article 40.3.3 of the Constitution.

Article 40.3.3, which obliges the State to give due regard to the equal rights to life of mother and unborn (as far as is practicable) is the troubled offspring of 1983's divisive pro-life referendum. The Divisional Court accepted, in its ruling, that the ordinary common understanding of the context that led to the wording of the provision, was that the pro-life referendum was intended to ensure that no laws permitting abortion could be introduced in Ireland.

But now it has become so much more. In its ruling in the life support case, the Divisional Court - whose ruling will not be the subject of a Supreme Court appeal - said the provision may also be seen as acknowledging in simple terms the right to life of the unborn. Because the court found - based on uncontroverted medical evidence - that the mother was dead and the unborn in this case was facing nothing but "distress and death", it said it did not have to countenance the notion of foetal abnormality, which the Government ignored when it passed last year's Protection of Life During Pregnancy Act.

But the next court might.

The next court might be faced with a mother who is not dead, but whose life is in immediate or long-term danger. How will the best interests of the mother and unborn be reconciled then? The next court might be faced with conflicting medical opinion or families at variance about a woman's wishes or autonomy, or the prospects of the unborn. The next court might be faced with weighing up the best interests of an unborn that could, with experimental or pioneering treatment, be brought to viability. Yet another court might be handling a lawsuit against the State for allowing an unborn to be born with catastrophic or long-term health conditions.

Many elements of the life support case, many of the images it presented, were overwhelming to contemplate. The liquefying of the mother's brain, her children waiting on the angels to appear, or the three unfortunate doctors - like some obscene, 'Paddy Irish' joke - sitting in a room with a copy of the Irish Constitution, trying to figure out the Eighth Amendment. Though it's crude to say, it is - in my view - time for the Government to piss or get off the constitutional pot in respect of Article 40.3.3

The Eighth Amendment, whether politicians and pro life/pro choice advocates like it or not, is now being applied by judges beyond a strict anti-abortion context.

If that is to be maintained, it must be supported by laws and guidelines defining its scope.

Alternatively, and in light of changing public mores in respect of issues such as rape, incest and fatal foetal abnormality to name but a few, the Eighth Amendment should be repealed and replaced with a more suitable, preferably non-constitutional framework.

Court contests are inevitable: that is life and that is the changing state of science, ethics and morality. This is humanity, red in tooth and claw. Critically, legal culture lies at the heart of everything pertaining to the right to life, the right to die. Why was a court action required in this most futile of cases when it was not required in two previous cases in 2001 and 2003? Why did former Attorney General Michael McDowell direct in one of those cases that access to the courts was not required?

Why did the Office of the Attorney General in this life support case not seek to be represented in the action? Could it have been that Maire Whelan, like the HSE, felt that this case was best decided on the basis of clinical judgment?

When the HSE, an arm of the State, says doctors need to trust their clinical judgment, the time for hiding behind the skirts of the Eighth Amendment has come to an end.

Sunday Independent

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