Why the "X" case ruling was not good basis for law.
Very few people would argue that Professor William Binchy does not know the law better than most. He has some very good insights regarding the "X" case judgement of 20 years ago, how it was flawed and how it has contributed to the confusion ever since.This article from yesterday's Irish Times sets out why.
Supreme Court 'X' case ruling not good basis for abortion law
The Irish Times – Thursday, January 19, 2012
WILLIAM BINCHY
OPINION: THE GOVERNMENT’S appointment of the expert group to address the implications of the European Court of Human Rights decision in A, B C v Ireland gives us all the opportunity to reflect on the issue of legal protection for mothers and their unborn children.
Ireland has the enviable record of being among the very safest countries in the world for mothers during pregnancy – safer than a range of countries with far greater economic resources that have wide-ranging legalised abortion.
The task for the expert group is to recommend legal support for doctors to continue to uphold the principle of doing the best possible for two patients – mother and child – during pregnancy. There are times when this can result in the death of the unborn child, which is not the intended purpose of the treatment of the mother.
The mistake that the Supreme Court made in the X case was to embrace a quite different principle: that it is permissible to target the unborn child and intentionally terminate his or her life.
The Supreme Court heard no expert psychiatric evidence. Over the 20 years since the X case, the international research has shown a different reality: studies have been published that identify abortion as involving a significant increase in suicidal ideation and outcome.
The work of Dr David Fergusson and his colleagues in New Zealand in 2005 is perhaps the most striking example, especially since Fergusson’s own personal value position favours the “right to choose”. Fergusson noted the difficulty he had experienced in getting his research published.
Contrary to sustained misrepresentation by advocates of legalised abortion, the decision of the European Court of Human Rights does not require Ireland to give legislative effect to the Supreme Court decision of 20 years ago. What it does require is that we in Ireland choose a law that is clear.
We could, choose to endorse what the Supreme Court did but, if we took that course, we would be introducing into our hospitals an abortion regime, requiring abortion at all stages of pregnancy up to birth – the Supreme Court mentioned no time limits, in stark contrast to the notorious decision of the United States supreme court in Roe v Wade.
The Supreme Court decision represents injustice to the child, since it requires that his or her life be intentionally terminated. That abortion targets the child is a sad fact we should not ignore, however unpalatable it is to contemplate.
In England, some children – a small number – survive abortion. The Confidential Inquiry into Maternal and Child Health reported in 2007 that 66 babies had survived in one year. The policy in these cases is not to attempt to resuscitate them but rather to ensure that they die. That is not the policy of Irish hospitals but, if abortion was authorised on the principles set out in the Supreme Court decision, it would have to apply.
I do not believe that Irish people would wish to introduce a legal regime where the destruction of a child’s life was the object of the exercise.
We are free to make a different choice: one that ensures that Ireland can continue to be in the forefront of maternal safety and that does not target the child.
If the debate is about medicine, then Ireland, with its world class record on the care and safety of mothers during pregnancy, is a living example of how respect for human rights maximises positive outcomes.
But in truth the debate is really about values – not just about personal autonomy and privacy but about the dignity and equal worth of every human being. It is not easy to justify the intentional termination of the life of another human being, however small, powerless or undeveloped she or he may be. The insight of human rights philosophy is that, regardless of the estimation of others, every human being has inherent dignity and worth.
An unborn child is a distinct human being, with a unique identity different from that of his or her parents. He or she is no more or no less “a lump of cells” than a mature person.
Of course many (though not all) mature people lead lives of impressive intellectual and interpersonal fulfilment that bear no comparison with the experience or capacity of an infant in its mother’s womb or in the care of its parents in the years after birth. To build a lethal distinction on these differences in capacity and experience is not consistent with respect for the core values of human dignity and equal worth.
I hope that the expert group will take a broad view of its mandate and will guide the Government on the range of social supports that parents need in the awesome challenges that they may face in rearing the children who depend on their care.
