A chara, – Your opinion poll on the Eighth Amendment suffers from four evident structural flaws ("Majority want repeal of Eighth Amendment", October 7th). Your editorial ("Strong consensus for Eighth repeal", October 7th) identifies the flaw in the third option: "what the poll question characterises (not altogether accurately) as the abortion-on-demand reality of Britain".
Two flaws are found in the wording of the second option: “I believe it should be repealed to allow for limited abortion in cases of rape, fatal foetal abnormality.” First, rather than repeal, an option could be to amend the Eighth Amendment, so that the basic values embodied in the amendment would be not be jettisoned.
Second, the use of the phrase "fatal foetal abnormality" immediately slants the question. An article in the British Journal of Obstetrics and Gynaecology (July 25th, 2012) is clear. It concludes "... none of the malformations that are most commonly described as being lethal are actually lethal in the strict sense [invariably leading to fetal death in the womb or in the newborn period]. Prolonged survival has been described in all of the conditions listed ... a significant proportion of practitioners do use this or related terminology [lethal/fatal]... One reason is that practitioners may mistakenly believe that conditions like those listed ... are not compatible with survival beyond the newborn period".
The fourth flaw in the opinion poll is in proposing just three courses of action. A fourth alternative would be for the State to “to respect, and, as far as practicable, by its laws to defend and vindicate that right”. The State has done this only in a negative sense. It has failed to put into place the required supports for all mothers in crisis pregnancy so that they will be assured realistically of their constitutional rights to full care for mother and child to the natural conclusion of pregnancy. If this were done, it would significantly change the context in which the other options are considered. – Is mise,
PÁDRAIG McCARTHY,
Sandyford, Dublin 16.
Sir, – Prof Fiona de Londras (October 6th) writes, "removing the constitutional protection of the life of the foetus does not mean ridding the State of its interest in preserving foetal life per se" and that the Oireachtas would still be permitted to legislate to curtail the rights to bodily integrity, privacy and autonomy of a woman in order to promote an "objectively justifiable public interest (eg the preservation of foetal life)".
The concern of many, including, I think, Prof Gerry Whyte (September 30th), is that the State may be unable (or perhaps unwilling) to justify such restrictions in court, or that the common good is not served to a great enough extent by the preservation of foetal life to satisfy a court that a particular set of restrictions imposed on the constitutional rights of pregnant women are strictly necessary.
Removing a standalone right to life of a foetus makes this a lopsided battle. If only the mother has rights, the most the State can do is legislate to infringe on that right to only the minimal extent necessary to protect the common good, per the proportionality test laid down by Mr Justice Costello in the High Court in Heaney v Ireland in 1994 and subsequently upheld on appeal to the Supreme Court in 1996.
If a foetal right to life is retained, this thus remains a matter of balancing competing constitutional rights, ie of the foetus and of the mother. The courts can (and often have), in such circumstances, adopt an attitude of significant deference to the Oireachtas in the precise balance that ought to be struck between competing constitutional rights, only interfering when, as Chief Justice Finlay put it in Tuohy v Courtney: "the balance struck is so contrary to reason and fairness as to constitute an unjust attack on some individual's constitutional rights".
I suspect (despite, of course, sharing Prof de Londras’s concerns that any constitutional scholar may be wrong) that there exists certain scope for liberalising the abortion regime in Ireland before reaching the point where a modern court would consider the legislation an “unjust attack” on foetal life. – Yours, etc,
ALAN EUSTACE,
Marino, Dublin 9.
Sir, – If Jim Stack (October 7th) is genuine in his certainty that pro-life voters outnumber pro-choice voters by a margin of two to one, why on earth would he oppose a referendum? If he is correct in his assertions, the Eighth Amendment will most assuredly be retained and the matter settled for another generation.
A referendum is our most direct expression of democracy. Anyone who feels two-thirds of the population believes as he does should have no fear about going to the people. – Yours, etc,
KATIE HARRINGTON,
Dublin 12.