The New Debate
By Professor William Binchy.
Sunday Business Post, 14th August 2005
For more than 20 years in Ireland, we have been having a fitful debate on the troubling subject of abortion.
Many people are tired of the controversy and turn away from the headlines when they see reports of some new initiative. This is perfectly understandable; abortion is an aspect of human experience surrounded by great unhappiness where there are no winners.
I would suggest, however, that close attention should be paid to what the Irish Family Planning Association (IFPA) proposed last week. This organisation recommends that there should be a referendum to provide for abortion on demand. It is encouraging the use of the European Convention on Human Rights as an external lever to exert pressure on the Irish Constitution by opening up a gap between the two legal systems.
The IFPA regards abortion simply as a “service'‘ and argues that this “service'‘ should be available here without any protection for the right to life of the unborn child. This attempt to exclude the unborn child from the human community, to treat it as an object that can be disposed of without regard to the child's human rights, is chilling. If abortion didn't involve the taking of human life, it would not be problematic. But it does. Simply ignoring the fact cannot be the way forward.
Internationally, movement is all in the other direction. With technological advances it is possible to see fully inside the womb. Countries that introduced abortion on demand two or three decades ago have become more aware that it involves the loss of the life of real human beings – small and of modest development, but recognisably human. There is increasing concern that abortion involves a serious injustice to the unborn child and that to ignore this fact requires a certain hardening of the heart. A matter of particular concern is that the IFPA apparently is not opposed to legal provision for abortion on demand right up to birth. Even the discredited decision of the United States Supreme Court in Roe v Wade did not go that far.
The position of the rights of unborn children under the European Convention on Human Rights presents the European Court of Human Rights with a real political problem.
This was obvious in its recent decision in Vo v France. If it recognises that unborn children have the right to life, like other human beings, then the abortion laws of most European countries are not in compliance with the convention. That is clearly not a palatable prospect for the court. On the other hand, if it holds that unborn children have no protection under the convention, that would create serious difficulties for countries such as Ireland, whose laws have sought to protect unborn children from abortion. What the court has done is to bob and weave, trying to avoid taking a clear position one way or the other and giving countries a very wide “margin of appreciation'‘.
The court's decision in Bruggeman and Scheuten v Germany many years ago suggests fairly strongly that it would not recognise claims for a right to abortion based on an asserted right to privacy. Whether the court's approach would now be different is another question. In its recent decision in Pretty v United Kingdom, the court displayed a sensitive awareness to the realpolitik of the diversity of values in Europe regarding the termination of life and a privacy-based argument did not get very far. The IFPA presents abortion in terms of the exercise of choice regarding a service, yet there is widespread persistent evidence from studies carried out throughout the world that, sadly, abortion can cause psychological damage, occasionally long -lasting, to some women.
Some of the studies regarding suicidal ideation and attempted and completed suicide are particularly disturbing. Producing soundly-based empirical research on this subject is not easy, and interpreting raw data still harder. Nevertheless, the picture that emerges from the research is that abortion is not universally problem-free for the mother. This evidence should not be exploited or misrepresented by opponents of abortion; equally it deserves to be widely known and analysed. It seems that there is little support for abortion on demand among the Irish electorate. In 2002, a referendum which would have overturned the unsound principle articulated in the Supreme Court in the X case was defeated by less than 1 per cent of those who voted; 50.4 per cent to 49.6 per cent.
There had been a strong (and, in my opinion, mistaken) campaign of opposition to the referendum by some people who oppose abortion.
My reason for mentioning this is not to reopen that issue, but rather to point to the fact that, far from wishing to go in the direction that the IFPA beckons, most people wanted to ensure that the legal prohibition on abortion would be strengthened.
A public opinion poll taken last May showed that 54 per cent would support a constitutional amendment prohibiting abortion while allowing the existing practice of intervention to save a mother's life, in accordance with Irish medical ethics. Only 15 per cent were opposed to that.
I believe that this is the best way forward. We can be proud of our doctors and nurses, who care for mother and baby and produce results for pregnancy care that are among the very safest in the world.
Most people don't want to have this caring culture replaced by one which is blind to the humanity of unborn children. A society that responds positively to the needs of the small and the defenceless is surely one for which we should strive.
William Binchy is Regius Professor of Laws at Trinity College Dublin (c) The Sunday Business Post