Abortion Discussion

Peregrinus

alaimacerc wrote: »

Meine Deutsche is nicht zu gut, aber der zweiter Satz habt der Wort "Person" im es. I've now seen three different versions of this, the one I was working from originally using the word "person" in both the first two sentences, whereas yours doesn't in either . . . .

But it's not 1(1) that I'm quibbling over the applicability of, it's 2(2). If the latter's held to cover "the unborn", I don't see how we can't be getting into the aforesaid blind alley. (And from what point in prenatal development, and so on.)

I think the point is that, in trying to work out whether Art 2(2) extends to the unborn, the court looked at Art 1(1) - harmonious interpretation, and all that. And the references in Art 1(1) to “human dignity” were (part of) what led them to conclude that the references to “life” in Art 2 included the unborn. You can argue about whether an unborn, um, conceptus is a “person”, but it’s very hard to argue that it’s not human. If the purpose of the personal rights articles of the Constition is to protect human dignity, then it makes sense that a reference to “life” includes human life. And arguments that they only apply to human life which has reached a certain stage of development or displays certain capacities do not play well in Germany because Aktion T4, etc.

alaimacerc wrote: »

This is always a tricky thing with judicial review of primary law; if they consider it to be flawed, are they able to "partially strike it down" in a way that amounts to rewriting it on the cuff? There's a fine line here between undue stonewalling, and encroachment on separation of powers.

I don’t think the German constitutional court goes in for rewriting. They’ll strike down an entire Act, or parts of provisions of an Act if what is left is still functional (and constitutional), but they won’t amend, rewrite or insert.

When this matter came before them in the 1970s, they had an Act before them which, basically, decriminalised abortion (up to a certain point in the pregnancy). They struck it down, on the basis that it failed to respect human dignity. It seems probable that there was no kind of partial strikeout they could have done which would have left a text that still made sense and had effect.

While it’s not their job to legislate, they did go on to talk about why they had struck it down, and about what kind of abortion law that might, entirely hypothetically, you understand, come before them would not be struck down. You can argue that this was improper, but it was useful; an abortion law along the lines indicated was duly enacted, and was upheld.

But of course parliament was always free to enact another abortion law - neither the one struck down in the 1970s nor the one hinted at, and subsequently enacted - and have that reviewed by the court. Which is what happened in the early to mid-1990s. We know the immediate impetus from that was the need to reconcile Osti and Westi law on abortion, but it may also be - I’m guessing now - that in the 20 years or so that had passed other constititional cases dealing with the personal rights had given reason to hope that a more liberal abortion law would pass muster.

alaimacerc

recedite wrote: »

Yes, existing legislation would continue to operate. And it would continue to recognise the right to life.

In what respect? Are you saying the text of any extant legislation provides for this in some way?

I'm saying it may not be possible to introduce new legislation afterwards withdrawing that right, because any such proposed legislation would be open to challenge on the basis that it could be repugnant to the unenumerated rights of the unborn, as implied and established through usage and time.

So, basically "cosmic vibrations", then. It's what we're used to, so it must still hold, even if we've specifically just voted it down. And thus it was never necessary to have it in the first place?

Tell you what, let's try it, and see what happens.

alaimacerc

Peregrinus wrote: »

I think the point is that, in trying to work out whether Art 2(2) extends to the unborn, the court looked at Art 1(1) - harmonious interpretation, and all that. And the references in Art 1(1) to “human dignity” were (part of) what led them to conclude that the references to “life” in Art 2 included the unborn. You can argue about whether an unborn, um, conceptus is a “person”, but it’s very hard to argue that it’s not human.

Fairly hard to do that with anything that's genetically human (at a minimum). But I'm struggling to see how one "harmoniously interprets" these two clauses together, without going the whole hog and ending up with full-bore foetal (embryonic, zygotic) personhood. Well, with any consistency at least, which may be where I'm looking too hard and expecting too much. For example, 3(1): is a foetus (etc) equal before the law with any ("born") person?

If the purpose of the personal rights articles of the Constition is to protect human dignity, then it makes sense that a reference to “life” includes human life. And arguments that they only apply to human life which has reached a certain stage of development or displays certain capacities do not play well in Germany because Aktion T4, etc.

Though methinks "biological individuation" or "any neural activity whatsoever" aren't quite in the same category. But I take your general point.

On closer examination of the German text, the connotations may be rather different, actually. "Die Würde des Menschen ist unantastbar." -- Menschen is I think not quite so woolly as "human" -- SkyNet Translate just renders that as "The dignity of man".

I don’t think the German constitutional court goes in for rewriting. They’ll strike down an entire Act, or parts of provisions of an Act if what is left is still functional (and constitutional), but they won’t amend, rewrite or insert.

I'll have to take your (however provisional!) word for it; perhaps where I'm least clear on this is just how "line-item" the strikedown can be (in different jurisdictions), and to what extent this can approximate the effect of "rewriting". (Obviously it would preclude "insertion", unless they're considerably more ingenious than I...)

While it’s not their job to legislate, they did go on to talk about why they had struck it down, and about what kind of abortion law that might, entirely hypothetically, you understand, come before them would not be struck down. You can argue that this was improper, but it was useful; an abortion law along the lines indicated was duly enacted, and was upheld.

I don't think I'd argue that too strongly, if at all. Better than entirely gnomic stonewalling, at least.

We know the immediate impetus from that was the need to reconcile Osti and Westi law on abortion, but it may also be - I’m guessing now - that in the 20 years or so that had passed other constititional cases dealing with the personal rights had given reason to hope that a more liberal abortion law would pass muster.

That has a strongly plausible ring to me, too.

Peregrinus

Maybe the key to it is something like this:

I agree that some milestones of human development (you mention biological individuation and neural activity) are more significant than others. But, at least in part in response to recent historical experience, the Germans are very reluctant to buy into the idea that any particular point along the continuum of human development represents the point at which “humanity” or “personhood” or whatever term you want to use begins, and that prior to that point you have no “human dignity” to protect. (And, FWIW, I think that that’s a philosophical approach which accords better with the science than the “foetus is not a person until viabilty/sentience/ insert developmental stage of basically arbitrary choice” stance often adopted in the Anglosphere. That seems altogether too binary to me.)

At the same time, the German approach is not denying the significance of developmental stages. it seems to me, though that what they are saying is basically this: “Your developmental stage is irrelevant to the question of whether you are human, and whether your human dignity is deserving of respect and protection. But it is relevant to the question of how your dignity is to be protected and defended.”

Under the German system, in the earliest stages of development, it’s the mother who takes the primary role in recognising the dignity of the foetus, and factoring it into her decision about abortion. The state’s role is limited to creating a structure to encourage/ensure this - the counselling requirement, the waiting period. But the state will defer to her as the person best positioned to weigh up the claim of the foetus to human dignity with all the other factors; if she engages with the counselling and waits for the reflection period, they will not second-guess her judgment on the matter. But as the pregnancy progresses and the foetus advances further and further along the developmental road, the state takes a greater and greater role, first limiting abortions to cases of rape, threat to health, etc and eventually prohibiting it altogether.

I have done a bit of googling to see how this plays out in practice - in particular, how many women accept the counselling (indicating that they want or are considering an abortion) versus how many women then proceed to have abortions. I’m sure I once saw figures on this, but I can’t find them now. But my recollection is that a non-trivial proportion of women who sought the statutory counselling did not proceed to have abortions.

K4t

What a woman chooses to do with her body is not for society to decide. It is nothing short of sadistic to force a person to carry around a foetus for months and then to give birth to a baby when they explicitly state they would prefer not to. If every woman in the world decided tomorrow they didn't want children then that is their choice. It is for us as men to attempt to change their mind if we wish to further the existence of humanity. It is not for us or other women to force any woman to have sex, or to force any pregnant woman to give birth. Too many people in this world still think that their personal beliefs concerning a woman's body take precedence over the woman's right as a human being to control her own mind and body. There is something deeply disturbing about wanting to control another human being in the way pregnant women are controlled with regards abortion. I have no doubt that in years to come we'll look back on the way pregnant women were treated as second class citizens in astonishment at how such behaviour was tolerated in the 21st century.

alaimacerc

Peregrinus wrote: »

But, at least in part in response to recent historical experience, the Germans are very reluctant to buy into the idea that any particular point along the continuum of human development represents the point at which “humanity” or “personhood” or whatever term you want to use begins, and that prior to that point you have no “human dignity” to protect.

It's not the "human dignity" aspect that concerns me by itself, it's the "reading across" to other formalised -- much less "equal" -- rights. One could even say that some degree of "human dignity" is to be afforded to the haploid phase, too. I find it hard to foresee that being done on any basis that would particularly impact on the privileges and freedoms of their source adult -- though a German Catholic might well think otherwise, perhaps -- but it has some bearing on the bioethics of assisted reproduction, and so on.

But my recollection is that a non-trivial proportion of women who sought the statutory counselling did not proceed to have abortions.

I can't say this offends against my sensibilities. Heck, never mind "informing their consciences", it wouldn't greatly upset me were the "we have to give women better options" rhetoric actually be translated into... well, giving women better options. As opposed to merely "fewer". Thus I say ye to YD and PLC -- fewer pickets, more whiprounds.

Peregrinus

Yes. I’m generally of the view that (a) we should be slow to constrain the choices a woman can make, but (b) abortion is generally Not A Good Thing. I suspect the societies that have got it right are those whose laws allow women to choose abortions, but who have a low abortion rate. I think the polarised discourse we mostly have in the Anglosphere does not serve women well. Even if it succeeds in establishing legal freedom of choice, it doesn’t necessarily make for a supportive climate within which to exercise that choice. I think we probably have something to learn from countries like Germany or the Netherlands where abortion is readily available, but much less frequently resorted to than in the UK or the US.

But maybe that’s for another day.

alaimacerc

Peregrinus wrote: »

I suspect the societies that have got it right are those whose laws allow women to choose abortions, but who have a low abortion rate.

I'm not sure that there are many policy "levers" that act directly on this number. But other things being equal, if it's lower, it'd be hard to say that'd be a bad thing. At the risk of sounding Clintonian. There can't be too many women who'd rather have an abortion than have had successful use of contraception -- to say nothing of the worst of it. (I do recall some lurid rumours of East German sports "medicine", but that'd be about it, I'd think. Oh, and something about the Satanic Genetic Stem Cell Industry, not sure I'm on top of all the memos on that.) If there were one marked "give people less chaotic lives generally"...

Peregrinus

alaimacerc wrote: »

I'm not sure that there are many policy "levers" that act directly on this number . . . If there were one marked "give people less chaotic lives generally"...

Completely agree with this, and with everything else you say. And yet we do see that some societies have strikingly lower recourse to abortion than others, in circumstances where this is not accounted for by legal bans or restrictions on abortion, and we can reasonably aspire to that ourselves.

I suspect this is cultural, rather than legal. And it has to do not so much with cultural attitudes to abortion in general as with cultural attitudes to sexuality and relationships. It's not so much that, e.g, Germany has the attitude to abortions it does because the law requires counselling and reflection; rather, the law requires counselling and reflection because that approach reflects German attitudes and values. I won't say that legal measures have no role in building and sustaining attitudes and values, but they'll only be a small part of the story.

silverharp

anyone know what outfit were on radio 1 this morning the good lady was asked on several occasions was it right to campaign to force parents to carry babies that wouldnt survive and to give no choice to these parents and she refused to answer and just gave spoof answers off on a tangent. If the interviewer had any balls he wouldnt let it go plus should ask what their religious connections are

lazygal

http://www.everylifecounts.ie/

They have been pushing for the term incompatible with life to be dropped. I'm sure people like Cora "Always a better option namely continuing every pregnancy no matter what' Sherlock are involved.

eviltwin

lazygal wrote: »

http://www.everylifecounts.ie/

They have been pushing for the term incompatible with life to be dropped. I'm sure people like Cora "Always a better option namely continuing every pregnancy no matter what' Sherlock are involved.

It's hard not to feel sympathy for these parents and I'd support the idea of a pre natal hospice but why does it have to be an either or? Why not both? I'm glad these families got to say goodbye on their terms so it's incredibly selfish of them to deny that to others. It's bad enough they have to carry and deliver a child they know won't survive without the added burden of having to travel, being in unfamiliar surroundings, away from family. It also deprives others in the family a chance to say goodbye. As I say I'm very sympathetic to all the people involved in that campaign but very angry with them too for their lack of sensitivity and empathy.

swampgas

lazygal wrote: »

http://www.everylifecounts.ie/

They have been pushing for the term incompatible with life to be dropped. I'm sure people like Cora "Always a better option namely continuing every pregnancy no matter what' Sherlock are involved.

From the source html on that web site:

name="keywords" content="letter, parents, life limiting conditions, incompatible with life, fatal fetal abnormality, misleading term, hurtful

Presumably they can see that legalising abortion for FFA has broad support, and this scares them. So they are now running a propoganda comapign with fluffy pink web pages which is trying to redefine FFA as something it isn't. I'm sure many women faced with FFA wished it were as simple as a fixing up some terminology. Unfortunately, the cruel reality is that "incompatible with life" is exactly that.

Once again they are against other people having the option to choose for themselves what is best for them in such tragic circumstances, they would rather put women through hell rather than accept that their blickered ideology does not suit everyone.

silverharp

lazygal wrote: »

http://www.everylifecounts.ie/

They have been pushing for the term incompatible with life to be dropped. I'm sure people like Cora "Always a better option namely continuing every pregnancy no matter what' Sherlock are involved.

Thanks that's it, their website of course gives no hint of who the people running it are but the spokesperson Tracey harkin pops up on various catholic sites so its obviously a catgolic lobby organisation that wants to handcuff the people it wants to "help"

lazygal

I have no issue with the introduction of perinatal hospices for those who want them. But I don't see why that group's choice should be compulsory for everyone else. We discussed what we'd do before we had both anomaly scans and I would have not the slightest interest in entering a perinatal hospice with other women in the same situation to await the birth of a child with a fatal abnormality. When I was in hospital I wasn't really interested in deep and meaningful chats with other women who'd had babies so I definitely wouldn't be interested in a perinatal hospice being presented as the only course of action for me.

lazygal

swampgas wrote: »

From the source html on that web site:


Presumably they can see that legalising abortion for FFA has broad support, and this scares them. So they are now running a propoganda comapign with fluffy pink web pages which is trying to redefine FFA as something it isn't. I'm sure many women faced with FFA wished it were as simple as a fixing up some terminology. Unfortunately, the cruel reality is that "incompatible with life" is exactly that.

Once again they are against other people having the option to choose for themselves what is best for them in such tragic circumstances, they would rather put women through hell rather than accept that their blickered ideology does not suit everyone.

Yes, it is difficult to separate their claims from the Catholic doctrine perpetuated by Mother Teresa and pals that suffering is A Good Thing and Our View On Life Is Always Correct.

swampgas

Wow - those html keywords disappeared from that website just now. Somebody's vigilant ...

lazygal

swampgas wrote: »

Wow - those html keywords disappeared from that website just now. Somebody's vigilant ...

Did you get a screengrab?

swampgas

lazygal wrote: »

Did you get a screengrab?

Nope. The text I posted earlier was a direct copy/paste though.

Edit: if anyone has that webpage still open from a few minutes ago, try right click, view page source, and search for "keywords". If you see what I saw earlier, please take a screenshot.

lazygal

swampgas wrote: »

Nope. The text I posted earlier was a direct copy/paste though.

Someone is a busy little bee. One would think they'd be so worried about the babies they'd have no time for worldly things like fiddling with their website.

swampgas

Actually, it's on their "about" page. My bad.

<title>About and Support | Every Life Counts</title>
<meta http-equiv="description" name="description" content="Every Life Counts - Parents tell their stories" />
<meta http-equiv="keywords" name="keywords" content="every life counts, prenatal fatal diagnosis, incompatible with life, in utero, womb, pregnant, pregnancy, scan," />
<meta property="og:title" content="About and Support | Every Life Counts"/>

And from the "Compatible with life" page:

<html>
<head>
<meta http-equiv="Content-Type" content="text/html; charset=utf-8" />
<!--[if ie]><meta http-equiv="X-UA-Compatible" content="IE=edge,chrome=1" /><![endif]-->
<title>Compatible with Life | Every Life Counts</title>
<meta http-equiv="description" name="description" content="Our babies were compatible with life and love" />
<meta http-equiv="keywords" name="keywords" content="letter, parents, life limiting conditions, incompatible with life, fatal fetal abnormality, misleading term, hurtful, " />
<meta property="og:title" content="Compatible with Life | Every Life Counts"/>

lazygal

Wow, they're upset that a medical term is 'hurtful'. Maybe we should change the word cancer to something less hurtful while we're letting religious groups dictate what terms medical practitioners can use.

aloyisious

I was thinking about the issue of feotus without a heartbeat in the womb and wondered if the way of getting past the "NO NO NO" camp is to introduce something like this to be set in law: after the medics see the feotus in the woman's womb has no heartbeat/cardiac rhythm (a clear indication that it will not emerge from the womb alive) that an immediate period of seventy-two (72) hours be set in operation for the feotus be monitored continuously for a heartbeat/cardiac rhythm and if no such sign is recorded, that the feotus be declared non-viable.

A law would be written into the statute books laying out those limits. The law would declare that any pregnant woman faced with that situation be allowed to have the option of an unimpeded abortion immediately after seventy-two (72) hours and within ninety-six (96) hours.

There would be no referral of such situations to any medical council guidelines, such as those currently in use for abortion requests. Neither the Medical Council nor the Royal College of Surgeons in Ireland will have any hand, act or part in setting up the law, or operation of the law. The law would be there for voluntary use by any woman who was presented with a feotus without a heartbeat in her womb. It would be up to her, and her alone, to decide on whether to abort the feotus or to keep it in her womb until nature took it's course in discharging the feotus from her womb.

There is a chance that such a law could also include encephalopathic feotus in it's bounds; with regard to Xrays and continuous monitoring of brain activity in the feotus over the same time limit of seventy-two (72) hours before the feotus be declared non-viable. There would be NO legal obligation on any woman to proceed with either course of action in either situation I listed above.

The Medical profession would be obliged within that law to comply with the woman's wishes for an abortion if she chose it. The would be no Medical Council of Ireland setting up guidelines in an attempt to pre-empt the woman's choice being proceeded with by a member of the medical profession using a MCI licence to practice, nor use of the courts by the MCI to bully MCI licence-holders into following MCI rules set up to disrupt statute law rights of pregnant women faced with the above feotus situations. Ditto for the RCSI and it's licence-to-practice.

There would be an ethical opt-out clause set in the law for surgeons, with the obligation in that law that they refer the woman to another surgeon within twelve (12) hours or sooner. The surgeon would be obliged to proceed with the abortion immediately. Heel-dragging by any surgeon or medical practitioner in fulfilling the woman's wishes would be punishable by court-ordered removal of the surgeons MCI licence to operate. Ditto for an RCSI licence.

I have edited this post from it's original version, so readers may have to re-read it to evaluate it again. It's bit legalistic in parts.

lazygal

There's no issue if there is no heartbeat. That was the whole problem with the Savita case. Once there is no heartbeat detected, depending on the stage of pregnancy you'll be sent home to 'await events' or you will be given a d&c or labour will be induced or the baby delivered by other means. FFA can involve a baby with a viable heart, but no brain, for example.

volchitsa

lazygal wrote: »

There's no issue if there is no heartbeat. That was the whole problem with the Savita case. Once there is no heartbeat detected, depending on the stage of pregnancy you'll be sent home to 'await events' or you will be given a d&c or labour will be induced or the baby delivered by other means. FFA can involve a baby with a viable heart, but no brain, for example.

I know of a case where the lungs didn't develop (there was more to the syndrome than that, but that was what was going to kill the baby). Not sure how it would be possible to legislate for all FFAs just by using fetal heart or brain activity as the definer. Possibly even not a majority of them (I don't have enough medical knowledge to know what proportion of FFAs don't involve major brain or heart abnormalities.)

lazygal

volchitsa wrote: »

I know of a case where the lungs didn't develop (there was more to the syndrome than that, but that was what was going to kill the baby). Not sure how it would be possible to legislate for all FFAs just by using fetal heart or brain activity as the definer. Possibly even not a majority of them (I don't have enough medical knowledge to know what proportion of FFAs don't involve major brain or heart abnormalities.)

This is why its nearly impossible to legislate for prescriptive medical practice. Medical advances happen very quickly and the law is often slow to catch up. On abortion, I think Canada largely has it correct. Abortion is a medical, not a legal matter, between a woman and her doctor.

aloyisious

I'm listening to the Ray D'arcy show RTE 1. He's talking to a woman outside the Dail who'd gone through an FFA, how she'd been told about her FFA and how she'd been told "Oh no, you'll have to go full term delivery" when she asked what she had to do about the FFA feotus in her womb. The woman had just stepped outside to talk to Ray, is waiting for the result of the vote on Claire Daly's bill. The woman had to travel to a Liverpool Hospital to have an abortion, and found the staff there great, including an RC Priest who blesses the feotuses, after the abortions.

The show took an Ad-break and on it's return, Ray is talking to some-one else on another topic.

My sister's daughter had her son aborted a few days ago in the U.K. through C/S, as he had encephalitis and both sides of his heart had not joined together. The doctors had told her he would not survive long and they were right, just 4 hours. They were blessed enough to have photos of him laid out in clothes bought for him.

Meantime Drive-time is covering the issue. It seem's the Gov't is not going to reveal (publicly) the contents of the AG's advice to it on Claire Daly's bill, though apparently the Labour party TD members will be shown the "This Bill May be Unconstitutional" advice wording.

alaimacerc

aloyisious wrote: »

Meantime Drive-time is covering the issue. It seem's the Gov't is not going to reveal (publicly) the contents of the AG's advice to it on Claire Daly's bill, though apparently the Labour party TD members will be shown the "This Bill May be Unconstitutional" advice wording.

May be! Well. That's certainly good enough for me. Throw these scofflaws that voted for it in the gaol, right away!

PopePalpatine

I was listening to The Last Word discussing Daly's bill, it must be very difficult to top Mattie McGrath is the stereotypical anti-choice gombeen. I remember reading a joke that anti-choicers would say "abahrtion", I guess it wasn't very far from the truth!

The Black Oil

Fidelma Healy-Eames on Prime Time, erm..