The X case

krd

Carawaystick wrote: »

Sections 58 & 59 of the Offences against the person act 1861 mention procuring a miscarriage.

I'm guessing that Miscarriage has been more tightly defined in litigation since then,

No. Procuring a miscarriage is just another term for procuring an abortion. An abortion is another word for miscarriage. It's not something that would need to be clarified.

but
in the published facts of the recent case seem to be that a miscarriage had occurred and so
the oapa wouldn't apply?

A spontaneous miscarriage had occurred. But what they needed to do was an evacuation. That's where they remove the fetus.

They wouldn't do this because the fetus' heart was still beating. What's so appalling, is that if they'd made absolutely no effort to provide any care, both the woman and fetus would have died, and had they evacuated the fetus even keeping its' heart beating, it would have died within minutes.

so can someone explain to me then how doctors have absolutely no problem dealing with ectopic pregnancies?

the mothers life is at risk, there is still a fetal heartbeat yet there is no hesistancy in dealing with this. the mother is immediately brought to surgery. the 'foetus' is taken out as is part/all of the fallopian tube.

i dont see any ambiguity here, i am presuming that there was more to the case in galway than we know.

Obliq

bubblypop wrote: »

so can someone explain to me then how doctors have absolutely no problem dealing with ectopic pregnancies?

the mothers life is at risk, there is still a fetal heartbeat yet there is no hesistancy in dealing with this. the mother is immediately brought to surgery. the 'foetus' is taken out as is part/all of the fallopian tube.

i dont see any ambiguity here, i am presuming that there was more to the case in galway than we know.

Oh that's quite an easy one in Ireland. Dealing with an ectopic pregnancy by removing the fetus (to die) is a "medical procedure". Not an abortion at all apparently. :pac: Therefore, no "abortions" are performed on our hallowed Irish ground, no distressing words like "termination" sully our blessed mouths. Clear now?

Carawaystick

krd wrote: »

No. Procuring a miscarriage is just another term for procuring an abortion. An abortion is another word for miscarriage. It's not something that would need to be clarified.



A spontaneous miscarriage had occurred. But what they needed to do was an evacuation. That's where they remove the fetus.

If we read the oapa, it seems clear that as a spontaneous miscarriage had happened, then it would not prevent medical treatment .
So there must be something else to more tightly define an induced miscarriage than the 1861 act.

Removing the foetus and placenta etc which were the result of a (spontaneous) miscarriage seem perfectly permissible . So there must be something else preventing this from happening.

Anyway, the use of a term which has two meanings seems a bad law, irrespective of what the law is about

Obliq

Carawaystick wrote: »

If we read the oapa, it seems clear that as a spontaneous miscarriage had happened, then it would not prevent medical treatment .
So there must be something else to more tightly define an induced miscarriage than the 1861 act.

Removing the foetus and placenta etc which were the result of a (spontaneous) miscarriage seem perfectly permissible . So there must be something else preventing this from happening.

Anyway, the use of a term which has two meanings seems a bad law, irrespective of what the law is about

If the fetus still had a heartbeat, it would have been an abortion (illegal, except to save the life of the mother). As soon as the fetus died, it's an evacuation. At least, that's my take on the law. Corrections?

CZ 453

Hi folks,
Sorry to resurrect an old thread(think it's ok from a sticky above). I'm looking at a question at the moment. Why did the Oireachtas fail to enact legislation to implement Art 40.3.3 pre 2013?

Am I right in thinking it was political suicide for any Government or party to touch abortion/unborn legislation? What other problems were there?(IVF, At what point is there life?)

Thanks

Bepolite

shezer wrote: »

Hi folks,
Sorry to resurrect an old thread(think it's ok from a sticky above). I'm looking at a question at the moment. Why did the Oireachtas fail to enact legislation to implement Art 40.3.3 pre 2013?

Am I right in thinking it was political suicide for any Government or party to touch abortion/unborn legislation? What other problems were there?(IVF, At what point is there life?)

Thanks

Homework Alert :pac:

At what point is there life?

Your guess is as good as anyone elses.

CZ 453

Bepolite wrote: »

Homework Alert :pac:

At what point is there life?

Your guess is as good as anyone elses.

Less of your shenanigans. I'm looking for ideas here that I may miss.

Bepolite

shezer wrote: »

Less of your shenanigans. I'm looking for ideas here that I may miss.

One idea might be that if your at undergrad level you should be doing your own research. If you're not, or not studying law, a more upfront declaration from the very start is more likely to illicit a favourable response. Very few, if any of the regular participants of this forum want to be doing lazy law students assignments for them - if that's not the case then fair enough, why not add some more context to your question and I'm sure people, including myself will be happy to give you some pointers.

The second part of my above post was a serious one, my shenanigans usually do contain some level of constructive posting. Is it fair to frame the question of when life begins in a single context, be it judicial, scientific or theological?

CZ 453

Bepolite wrote: »

One idea might be that if your at undergrad level you should be doing your own research. If you're not, or not studying law, a more upfront declaration from the very start is more likely to illicit a favourable response. Very few, if any of the regular participants of this forum want to be doing lazy law students assignments for them - if that's not the case then fair enough, why not add some more context to your question and I'm sure people, including myself will be happy to give you some pointers.

The second part of my above post was a serious one, my shenanigans usually do contain some level of constructive posting. Is it fair to frame the question of when life begins in a single context, be it judicial, scientific or theological?

If you don't want to be helpful you don't have to post. Nothing lazy about asking for ideas or help.People do it on boards all the time.Some nice people have responded here before.

Have a nice evening!

johnnyjohnjohn

Hi all.This may be helpful-

http://lawinireland.wordpress.com/constitutional-law/

CZ 453

They are handy notes. Thanks.

Cody Pomeray

shezer wrote: »

Why did the Oireachtas fail to enact legislation to implement Art 40.3.3 pre 2013?

This is more a political science question than a legal one, since you're asking about the motivations of the Government in not legislating, as opposed to raising any question of legal scholarship.

In my view, the reason the government didn't legislate is because of the sheer controversial nature of the decision in X, and the absence of any significant external pressure to legislate. That external pressure would later arrive in the form of ABC v. Ireland, the subsequent report on ABC by Judge Ryan and the expert group, and the final straw, the death of Savita Halappanavar.

Those factors, coming together, caused an outpouring of demand for legislation which had not earlier existed in any way. The only people really calling for legislation on X, prior to 2010-2013 were the occasional women's groups and detached, feel-good, Irish Times columnists.

I would introduce one legal aspect to this narrative, and emphasize that the Government does not, cannot, and could never legislate for every single constitutional right and Supreme Court ruling. A lot of the outrage at the Government not having legislated for a constitutional right was just bizarre and misplaced. The reason the Government ought to have legislated was simply because the aformentioned constitutional law was not sufficiently clear as to be predictable and applicable in practice. That is all. There is no absolute requirement to legislate for everything.

CZ 453

Cody Pomeray wrote: »

This is more a political science question than a legal one, since you're asking about the motivations of the Government in not legislating, as opposed to raising any question of legal scholarship.

In my view, the reason the government didn't legislate is because of the sheer controversial nature of the decision in X, and the absence of any significant external pressure to legislate. That external pressure would later arrive in the form of ABC v. Ireland, the subsequent report on ABC by Judge Ryan and the expert group, and the final straw, the death of Savita Halappanavar.

Those factors, coming together, caused an outpouring of demand for legislation which had not earlier existed in any way. The only people really calling for legislation on X, prior to 2010-2013 were the occasional women's groups and detached, feel-good, Irish Times columnists.

I would introduce one legal aspect to this narrative, and emphasize that the Government does not, cannot, and could never legislate for every single constitutional right and Supreme Court ruling. A lot of the outrage at the Government not having legislated for a constitutional right was just bizarre and misplaced. The reason the Government ought to have legislated was simply because the aformentioned constitutional law was not sufficiently clear as to be predictable and applicable in practice. That is all. There is no absolute requirement to legislate for everything.

That's great.Thanks.That's the type of information I was looking for.:)

Bepolite

shezer wrote: »

If you don't want to be helpful you don't have to post. Nothing lazy about asking for ideas or help.People do it on boards all the time.Some nice people have responded here before.

Have a nice evening!

I want to be helpful, I also want to crack jokes. If you don't want people to crack jokes you don't have to post here. As for being helpful I'm happy to do that in the context of a discussion, one that I tried to engage you with. You seem content with spoon feeding.

Have a nice evening!

Losty Dublin

Bepolite wrote: »

I want to be helpful, I also want to crack jokes. If you don't want people to crack jokes you don't have to post here. As for being helpful I'm happy to do that in the context of a discussion, one that I tried to engage you with. You seem content with spoon feeding.

Have a nice evening!

To be very fair to him, today is the anniversary of Savita's death so it may have been foremost in his mind

CZ 453

Losty Dublin wrote: »

To be very fair to him, today is the anniversary of Savita's death so it may have been foremost in his mind

Spot on

CZ 453

Was Mary Robinson well ahead of her time?

http://www.youtube.com/watch?v=GLWnoQjTNiw

Bepolite

Losty Dublin wrote: »

To be very fair to him, today is the anniversary of Savita's death so it may have been foremost in his mind

Bloody hell a year on already. It still amazes me how we fail to legislate on a range of issues let alone one as complicated as this.

Bepolite

shezer wrote: »

Was Mary Robinson well ahead of her time?

http://www.youtube.com/watch?v=GLWnoQjTNiw

How so? She's 100% right on the questions over the law but it's very unclear what the result of a referendum would be today if the question was to allow abortion on demand.

While the subject of cracking jokes is still fresh, I love the final word at the end.

CZ 453

Bepolite wrote: »

How so? She's 100% right on the questions over the law but it's very unclear what the result of a referendum would be today if the question was to allow abortion on demand.

While the subject of cracking jokes is still fresh, I love the final word at the end.

Which part? "both of you may continue this debate in the learned journals, with footnotes."

Cody Pomeray

shezer wrote: »

Was Mary Robinson well ahead of her time?

http://www.youtube.com/watch?v=GLWnoQjTNiw

I would say not particularly.

Yes, Robinson's prediction about a third party asserting the right to life of the unborn through litigation, was finally realized through the interlocutory injunctions sought by the Attorney General in AG v. X, eight years later.

But this was not a particularly insightful prediction. A legal challenge was inevitable, eventually.

Robinson's apparent prescience on the ambiguity of the eighth amendment was, similarly, commonly accepted in legal and political circles of the day. The Government had been warned about the ambiguity of the eighth amendment, hesitated, and then went ahead with it.

Indeed, Robinson's fears about the eighth amendment may have been quite exaggerated. In 1983, she could not have known, and nor did she claim, that the Government would not legislate on the amendment. Although she was correct in her claim about ambiguity, she was perhaps only accidentally correct.

Very few people today, after all, would claim that the law on abortion remains ambiguous.

We can go further. Robinson's fears about ambiguity in relation to IUDs, and the broad scope of the term 'unborn' were, in the end, totally unfounded.

But this is not a criticism of Mary Robinson.

Too many lawyers, or rather, law students, claim to be able to say with absolute confidence what the law says, and where it applies, and where it does not. Robinson wisely criticized the ambiguity of the 8th amendment. As such, she was quite correct to raise concerns about ambiguity in relation to the unborn, per se.

Nevertheless, I would deny that she was particularly before her time in respect of the 1983 amendment.

Cody Pomeray

I would add that what is most revelatory about that debate is how slowly Irish society moves on social issues. If it weren't for the delicious bowl haircuts, much of that debate could have been repeated - and was repeated - in 2013.

Losty Dublin

Cody Pomeray wrote: »

I would add that what is most revelatory about that debate is how slowly Irish society moves on social issues. If it weren't for the delicious bowl haircuts, much of that debate could have been repeated - and was repeated - in 2013.

Still is, actually.

drkpower

Cody Pomeray wrote: »

Very few people today, after all, would claim that the law on abortion remains ambiguous.

.

Many would claim it remains ambiguous, in fact. To name just a few points:
1. What is a substantial risk? This continues to carry a degree of ambiguity although I think medical guidelines are probably the right way to help clarify this ambiguity.

2. The certification of three practitioners in section 9 of the new act ( re suicide).

- does it require unanimity? Probably, but not certain and potentially leads to an absurdity (an obstetrician can veto the view of 2 psychiatrists as to whether someone is suicidal etc)

- can a patient or hospital 'doctor shop'? Ie. if one doctor refuses to certify, can you get more and more assessments until you have 3 who certify? Or are you stuck with the first 3 doctors who give an assessment?

There are other potential anomalies that will probably work their way through the courts when the act finally comes into operation. Unfortunately, this area will probably for ever and always carry a degree of ambiguity.

Valentine1

drkpower wrote: »

Many would claim it remains ambiguous, in fact. To name just a few points:
1. What is a substantial risk? This continues to carry a degree of ambiguity although I think medical guidelines are probably the right way to help clarify this ambiguity.

2. The certification of three practitioners in section 9 of the new act ( re suicide).

- does it require unanimity? Probably, but not certain and potentially leads to an absurdity (an obstetrician can veto the view of 2 psychiatrists as to whether someone is suicidal etc)

- can a patient or hospital 'doctor shop'? Ie. if one doctor refuses to certify, can you get more and more assessments until you have 3 who certify? Or are you stuck with the first 3 doctors who give an assessment?

There are other potential anomalies that will probably work their way through the courts when the act finally comes into operation. Unfortunately, this area will probably for ever and always carry a degree of ambiguity.

I don't think there is any ambiguity in your second point . In fact the legislation is quite specific in this respect. Three doctors certifying something are by definition unanimous. What is required is that an obstetrician and 2 psychiatrists as defined in s 9(2) of the 2013 act certify the procedure as being necessary. Once that is done the procedure can go ahead. There is no mention of 3 practitioners being from a specific panel of 3 nor is there any mention of vetos or limits in the number of assessments that can be made.