Amendment 10 - abortion for fatal foetal abnormalities. What's the problem?

Fussgangerzone

This amendment was voted against last night, or was won by the government as some of the papers describe it. It doesn't sit right with me at all. The technical group wanted to add an amendment so foetuses with fatal abnormalities could be aborted.

I can't see one good reason for not allowing a pregnancy to be terminated when it is certain that the foetus will die before or shortly after birth. That's just my opinion, even if it's not a rare one, but I genuinely don't understand why the government went against this.

It's a matter of record that some government TDs have said that they favour such legislation, but that it couldn't go through as part of this bill. Does anyone know why this is?

Is it a legal problem?
Is it a political hot potato?
Is it something else?

oscarBravo

I think it's a legal problem. The X case means that the Constitution currently allows for abortion if the mother's life is at risk, and under no other circumstances. A fatal foetal abnormality amendment would have left the whole bill vulnerable to a challenge to its constitutionality.

Fussgangerzone

oscarBravo wrote: »

I think it's a legal problem. The X case means that the Constitution currently allows for abortion if the mother's life is at risk, and under no other circumstances. A fatal foetal abnormality amendment would have left the whole bill vulnerable to a challenge to its constitutionality.

Yeah, there's definitely trouble there. The wording in the amendment is fairly limiting:

3° 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.

So with no definition of the unborn as having potential consciousness, or otherwise being viable, it would lead directly to more changes. I suppose that might mean either the bill would need the amendment removed very quickly, or we'd need a referendum. It seems to me that the government hate having to deal with this, so they'll avoid any more changes within this term at all costs.

spank_inferno

as mentioned... it may be found to be un-constitutional.

so a referendum would be required to allow such legislation.

now.... if we were to wonder if the gov would have the appetite to have such a referendum, my guess would be no.

Perhaps there may be something after the next programme for government.

Nodin

spank_inferno wrote: »

as mentioned... it may be found to be un-constitutional.

so a referendum would be required to allow such legislation.

now.... if we were to wonder if the gov would have the appetite to have such a referendum, my guess would be no.

Perhaps there may be something after the next programme for government.

I'd be amazed, tbh. There'd be little appetite for it in FG certainly. It way well take a tragedy of some description and a few court rulings before there's any move in relation to it, cases of rape etc.

seamus

spank_inferno wrote: »

Perhaps there may be something after the next programme for government.

You're joking right? It's taken 21 years for a government to take action on something which they were required to take action on.

No government will voluntarily go near the abortion issue again for fifty years unless there's some serious public movements to force it.

This is probably what has a lot of people het up about what this bill doesn't contain - because they know if it's not included now, it'll never be included.

One commentator on the radio mentioned yesterday that they could include the fatal foetal abnormality allowance in the bill, which if later found to be unconstitutional, then that part of the bill is just ignored. But is that correct?

It does seem obvious to allow abortion in these cases, but the wording of the constitution is such that an abortion for fatal foetal abnormalities is effectively euthansia against the wishes of the foetus. That sounds absurd because that part of the constitution is absurd.

Sir Humphrey Appleby

seamus wrote: »

You're joking right? It's taken 21 years for a government to take action on something which they were required to take action on.

No government will voluntarily go near the abortion issue again for fifty years unless there's some serious public movements to force it.

This is probably what has a lot of people het up about what this bill doesn't contain - because they know if it's not included now, it'll never be included.

One commentator on the radio mentioned yesterday that they could include the fatal foetal abnormality allowance in the bill, which if later found to be unconstitutional, then that part of the bill is just ignored. But is that correct?

It does seem like a no-brainer to allow abortion in these cases, but the wording of the constitution is such that an abortion for fatal foetal abnormalities is effectively euthansia against the wishes of the foetus. That sounds absurd because that part of the constitution is absurd.

If the Preseident refers the Bill to the Supreme Court under article 26 of the Constitution to establish its constitutionality and any section is found to be repugnant to the Constitution then the whole bill is unconstitutional and the bill cannot be enacted.

Victor

Fussgangerzone wrote: »

I can't see one good reason for not allowing a pregnancy to be terminated when it is certain that the foetus will die before or shortly after birth.

I think that there is sympathy with people in such a situation. However, as I understand it, predicting which foetus will or won't have a fatal foetal abnormality isn't a certainty. For such a provision to be constitutional, at a minimum it would likely need certainty. As to whether that would guarantee constitutionality is another matter.

Old and grey wrote: »

If the Preseident refers the Bill to the Supreme Court under article 26 of the Constitution to establish its constitutionality and any section is found to be repugnant to the Constitution then the whole bill is unconstitutional and the bill cannot be enacted.

That sounds right. However, with other challenges to legislation, the courts have been willing to strike down only the offending section(s).

Floppybits

Nodin wrote: »

I'd be amazed, tbh. There'd be little appetite for it in FG certainly. It way well take a tragedy of some description and a few court rulings before there's any move in relation to it, cases of rape etc.

how sad is it that it will take another tragedy of a woman loosing her life before our government will act. It is a sad state of affairs.

Loafing Oaf

seamus wrote: »

You're joking right? It's taken 21 years for a government to take action on something which they were required to take action on.

No government will voluntarily go near the abortion issue again for fifty years unless there's some serious public movements to force it.

I wouldn't be so pessimistic. I believe there will be some for of constitutional change under the next govt. Paradoxically, if the next govt is FF/FG as seems likely, it could make a referendum more likely because there would be no significant challenge from the right. I think what will happen will be a referendum to simply repeal all reference to abortion from the constitution, on the basis that the govt would legislate on groounds off FFA, rape/incest, health, and that referendum would be passed comfortably.

nesf

Loafing Oaf wrote: »

I wouldn't be so pessimistic. I believe there will be some for of constitutional change under the next govt. Paradoxically, if the next govt is FF/FG as seems likely, it could make a referendum more likely because there would be no significant challenge from the right. I think what will happen will be a referendum to simply repeal all reference to abortion from the constitution, on the basis that the govt would legislate on groounds off FFA, rape/incest, health, and that referendum would be passed comfortably.

FG wouldn't be able to legislate that liberally now or any time soon bar a very large turnover of seats in the party. Even including abortion has meant individuals jumping ship, rape etc would be way to far for many. FF would have similar problems.

jmayo

Victor wrote: »

I think that there is sympathy with people in such a situation. However, as I understand it, predicting which foetus will or won't have a fatal foetal abnormality isn't a certainty.

In certain cases it is pretty obvious.
And here is something more shocking that may not be told to the woman or parents and it is that in certain cases the baby's skull may have to be crushed in order for it to be born.
So the baby is killed during birth.
Good old catholic Ireland where keep the woman in the dark is the order of the day.

But of course the solution to this is to get the boat to the UK and return home with a little box in the back which is your baby.

But for the UK there would either be back street abortionist in this country or we would have had the guts to kick the sh** out of the lucinda creightons et al of this country.

If a referendum was held after the Savita Halappanavar case I think there could be a good chance of it being passed.
The Labour party have been good at stating this legislation would have saved Savita, but I don't see how as this still only caters for suicide.

Cody Pomeray

seamus wrote: »

One commentator on the radio mentioned yesterday that they could include the fatal foetal abnormality allowance in the bill, which if later found to be unconstitutional, then that part of the bill is just ignored. But is that correct?

Yes this relates to the doctrine of severability, it can be correct if it meets this crucial test:

It is only possible if the remainder of a Statute/ SI can be held to stand independently and legally operable in its own right, AND if the Oireachtas or the Minister intended some differentiable structure within the Act or Regulation.

That is to say, the offending provision cannot be inextricably bound up with the arteries, veins and nerves of the body of the statute, and further that separation should be as deliberately intended as it is clear.

In that sense, offending provisions can be thought of as malignant tumors. Removable if conveniently located, but if you find it in the wrong place then the patient cannot survive.

This has all been determined by case law, but the original inspiration comes from Art 15.4.2. of the Constitution

Every law enacted by the Oireachtas which is in any respect repugnant to this Constitution or to any provision thereof, shall, but to the extent only of such repugnancy, be invalid.

However, the idea of enacting a deliberately unconstitutional provision requires the President, acting contrary to his constitutional role, and conspiring with the Oireachtas contrary to the Constitution, and is and must be, a non-starter.

Fussgangerzone

Cody Pomeray wrote: »

Yes this relates to the doctrine of severability, it can be correct if it meets this crucial test:

It is only possible if the remainder of a Statute/ SI can be held to stand independently and legally operable in its own right, AND if the Oireachtas or the Minister intended some differentiable structure within the Act or Regulation.

That is to say, the offending provision cannot be inextricably bound up with the arteries, veins and nerves of the body of the statute, and further that separation should be as deliberately intended as it is clear.

In that sense, offending provisions can be thought of as malignant tumors. Removable if conveniently located, but if you find it in the wrong place then the patient cannot survive.

This has all been determined by case law, but the original inspiration comes from Art 15.4.2. of the Constitution



However, the idea of enacting a deliberately unconstitutional provision requires the President, acting contrary to his constitutional role, and conspiring with the Oireachtas contrary to the Constitution, and is and must be, a non-starter.

That's the most interesting thing I've read all day.