Hard cases make bad law. But hard cases also test bad law and expose contradictions and lacunae, and it seems that Ireland has a bewildering propensity every couple of years to throw up agonising new tests of our constitutional protections for the unborn. Speaking ahead of reports of the latest tragic case of a pregnant mother on life support, though clearly with knowledge of it, Enda Kenny warned again against the urge to legislate further – “ it’s important to know that you can’t foresee the range of circumstances that apply here. I am aware of one at the moment which is very difficult...”
Today the dilemma facing doctors, health officials, and now judges is whether switching off life support for a woman whom doctors agree is brain dead would breach the constitutional right to life of her foetus. The latter is reported to be in the second trimester, still some way from being able to live on its own. And that issue of viability will be at the centre of the ethical and legal debate on her and her unborn child’s future into which her unfortunate family has been thrown at this most difficult of times. Its outcome, courtesy of the eighth amendment to the Constitution, will now lie not in their hands as it should but in the courts.
What has become in shorthand over time our “abortion debate” is in reality a debate about whether, and how, the State should endow a right to life enjoyed by the rest of us on the foetus. The eighth amendment to the Constitution (1983) says the State acknowledges the right to life of the unborn and “with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.” Abortion arguments are a product of such a provision.
But a unique feature of the new right granted to the unborn, rightly or wrongly, is that inherent to it, because the foetus is incapable of surviving alone until it reaches viability, is also a binding obligation on mothers to vindicate those rights even if they encroach on important personal rights of their own. Such rights as the rights to personal privacy, self-determination and bodily integrity established in the re a Ward of Court case on the right to die a natural death, and the right to personal health ... In Savita Halappanavar's case, to life. In the recent Y case it was to mean an obligation to carry the foetus to term against her will.
Resolving such complex conflicts by ranking of rights in a society where social mores are fast evolving and the black and white moral certainties of the past are giving way to a kinder, more humane, greyer, but no less moral ethic, is not an appropriate function for an inherently inflexible constitution. Legislating on such sensitive, nuanced and painful ground should be a function of courageous politicians doing their job. In that context Clare Daly’s Bill seeking the repeal of the eighth Amendment is both timely and welcome.