Referendum to protect unborn now necessary
The Irish Times, Tuesday, 21st December 2010.
Existing medical practice in Ireland protects mothers very well – there is no need to legislate for abortion, writes Professor William Binchy
THE JUDGMENT of the European Court of Human Rights (ECHR) has placed the issue of abortion back into the centre of political debate. It requires the Irish people to decide definitively on how our law should protect human rights.
Far from requiring the Oireachtas to legislate, on the basis of the Supreme Court decision of 18 years ago, it gives us a stark choice. We are free to provide full constitutional and legal protection to existing medical practice in Irish hospitals, which recognises mother and child as two patients and ensures that mothers receive all treatment that they require. The outcome of this medical approach is that Ireland’s maternal safety record is strikingly good, one of the very best in the world, and better than countries that have wide-ranging abortion laws.
Alternatively, following the decision, we could introduce abortion legislation on the lines of what the Supreme Court prescribed. But that would involve abortion up to birth – the Supreme Court mentioned no time limits – and abortion in cases of suicidal ideation.
The scientific evidence over the past 18 years demonstrates the fallibility of the Supreme Court’s grasp of medicine in this area – perhaps not unsurprising as the Supreme Court heard no evidence from any expert medical witness.
The European Court of Human Rights at present recognises the diversity of philosophies among European countries in relation to the protection of unborn children. It applies the principle of giving countries a “margin of appreciation” to determine whether to protect them fully or expose them to an abortion law, ranging as far as abortion on demand.
It takes the view that, if a state chooses to have a ground for abortion, the circumstances in which that ground is applicable should be identified by legislation. But, equally importantly, every state is entitled not to require its hospitals and doctors to engage in abortion.
Ireland is perfectly free to provide constitutional support for the present admirable situation in Irish hospitals where doctors and nurses do their very best for mothers and their unborn children, ensuring that all necessary treatment will be given to mothers – even where this may result in the death of the child.
There is clear support among the public for protecting the existing medical practice. A national poll commissioned by the Pro Life Campaign earlier this year and carried out by Millward Brown Lansdowne on a quota-controlled sample of 950 adults showed that 70 per cent favoured constitutional protection for the unborn, 13 per cent opposed it, and 16 per cent did not know or had no opinion.
This outcome reflects a consistent pattern of public opinion extending over many years, where the question clarifies the distinction between current medical practice and targeting the life of the unborn child. Of course one should not conclude from the poll that this is how people would necessarily vote in a referendum, but it does indicate considerable enthusiasm for maintaining the current approach of doctors and nurses.
It would be wise to take a realistic view of how the European Court of Human Rights operates in relation to a continent with a wide diversity of value positions on abortion. Article 2 of the European Convention on Human Rights provides that “everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally . . .”
If the court were to hold that “everyone” includes every human being, born and unborn, then of course the unborn child would be well protected by the convention – but very many states would be found in breach of the convention, since their laws provide for the intentional deprivation of the lives of unborn children.
The solution to this political difficulty which found favour with the court was to avoid confronting that question and instead let every state determine its policy in relation to unborn children. There are signs that this policy is beginning to crack. Increasingly, judges in the court, including some judges involved in last Thursday’s decision, are beginning to insist that countries whose values differ from those in most other countries in Europe must get in line, on the basis of a consensus to which they do not subscribe. There are reasons to be seriously concerned about this approach. Human rights do not depend on the contingent attitudes that dominate in a particular group of countries at any time. Rights inhere in human beings by virtue of their humanity, and don’t cease to exist when a particular group loses visibility or popular empathy.
Irish adherence to the convention does not involve a surrender to other countries of the function of saying who is or is not to receive human rights protection under a provision that protects the life of everyone. The court, which operates in a political world where contemporary national policy is more likely to be respected if clearly enough articulated, may be more reluctant to seek to invoke the consensus principle to impose an abortion regime on Ireland if we have expressed our wishes to the contrary through a national referendum.
The Oireachtas would have no democratic legitimacy in legislating in consequence of the judgment. On the contrary, there is a clear entitlement for people to be given the opportunity in a referendum to address the subject of legal protection for unborn children in a calm, mutually respectful and – most importantly – fully informed way. This means the latest evidence – including, for example, the research findings of David Ferguson of New Zealand, as well as the University of Manitoba study published earlier this year – should be given appropriate consideration.
To give effect to the Supreme Court’s uninformed and mistaken holding would do serious damage, not only to unborn children, of course, but also to the existing approach of Irish doctors who realise that respecting the rights and dignity of two patients is best medicine.
William Binchy is Regius Professor of Laws at Trinity College, Dublin, and legal consultant to the Pro Life Campaign (c) The Irish Times