Leo Varadkar announces abortion referendum

BlinkingLights wrote: »

It'll be interesting to see if the Taoiseach has some backbone on this issue and actually puts a genuine repeal question to the people and lets us decide!

I have a feeling he won't and it will just be a wishy-washy question to almost preserve the status quo and it will be dragged on for months before there's a date or wording.

What is "a genuine repeal question" ?

Abortion on demand ?

That certainly wouldn't pass.

The government will almost certainly conspire to word the referendum in such a way as to render it completely unsatisfactory to all sides, and lead to a high profile and drawn out court case within a year or two on the exact meaning of the outcome adopted.

I agree with the citizens assembly 12 week abortion on demand recommendation.
12 weeks is nowhere near being a baby.
It gives the woman about 2 months from pregnancy discovery to make a decision.
There is also advances in healthcare which use a blood test to discover any chromosomal abnormalities at 9 weeks which can all be used to help make a decision. You don't have to wait for the 20 week scan any longer to discover it.

12 weeks is also a safer abortion than later for the woman.


On a different note, those that argue that an abortion for rape or incest is okay but not abortion on demand are misogynists.
They are saying the woman made a choice the have the sex, the resulting forced pregnancy is the punishment for doing the bold deed.
The resulting baby is a baby in both cases so wanting to protect the "baby" is not a valid argument. Its to punish the woman.

The debate will have three sides.

One will be use "what about rape, what about fetal abnormalities, what about Savita?" argument as a way to justify abortion for everyone any time in the nine months period, while refusing to discuss the most common case for abortion: a simple unwanted, accidental pregnancy.

The vast majority will say they are ok with abortion in case of rape, incest, risk to the mother's life and maybe fetal abnormalities, but generally against it otherwise (some will be ok with it in the early stages of an unplanned pregnancy) but will be ignored by the media.

Then you'll have the religious right are against abortion in all cases and will be used to represent the pro-life side by the media.

oscarBravo wrote: »

This. I'm blue in the face saying it. I'll be campaigning for nothing short of full repeal.

The recommendation which came out of the citizen's assembly was that the constitution should simply give the government the power to legislate on abortion.

That's exactly what a constitution should do and that's exactly what all of the Government's paid and unpaid legal experts will tell them is the right course of action.

If they don't heed this advice, then I will be voting No.

Putting in specifics like ages of gestation, words like "rape" or "FFA", or "suicide" will just lead to more decades of neverending challenges and counter-challenges as to what is constitutional.

1. Gestational age - According to whom? And do we measure from the date of conception or the date of ovulation? Who decides how old the fetus is, and how do they decide? What if someone presents at 11+3 for an abortion and it takes five days to get a "decision"?

2. Rape - well, is it only allowed for proven rapes, or alleged rapes? And so forth.

3. FFA - I cannot even begin to explain how much of a clusterf*c k we would have if the constitution were to explicitly allow abortion in the case of "fatal foetal abnormalities". No end of Ronan Mullen and his cronies dragging bereaved families into court to prove their unborn child qualified for an abortion.

4. Suicide - Well, we've been there already.

oscarBravo wrote: »

That's going to be a difficult call for me. If the proposed amendment - whatever form it takes - is defeated, it will be taken not as a signal that the people were unhappy with the wording of the amendment, but as an indication that the people want to keep the Constitution as it is.

I do say it so absolutely, but that's only because I don't see any other option.

As far as I can tell the only real options are

1. Delete the section
2. Re-draft it to be more specific/permissive
3. Re-draft it to vest power in the Oireachtas

1 & 2 leave the matter wide open to challenge and argument for decades. Which IMO, leaves us no better off than doing nothing.
# 3 places the arguments into the Dail and removes the need for a referendum to "fix" every re-interpretation and loophole.

So I basically don't see any solution to this except # 3, but that said, the legal experts might come up with a secret option # 4 that actually works, and I'll have to think about it. But I personally don't see how they can.

pilly wrote: »

Am I right though in saying simply "repeal the 8th" as an option will not actually change things? That legislation will have to be brought in after that?

In theory, simply deleting the article means that the government can then legislate for abortion, and most people will be happy.

However, the constitution contains many articles whose scope can be interpreted in many terms.

With no mention of abortion in the constitution, someone could challenge abortion laws on the basis that they violate another part of the constitution.

Article 42A, for example;

The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.

If the Supreme Court were to agree that "children" includes the unborn, then any abortion law would be unconstitutional.

However, by explicitly stating that the government has the power to legislate around abortion, the interpretation of other articles is irrelevant.

Something which I found interesting is how abortion and the laws around it are woven into many current laws.

For instance, I found this when researching the censorship office on another matter. Its taken from http://www.citizensinformation.ie/en/consumer_affairs/media/censorship_of_publications_in_ireland.html

Grounds for banning a books or periodicals in Ireland

Books are prohibited if the Censorship of Publications Board considers them to be indecent or obscene. Periodicals are prohibited if the Censorship of Publications Board considers them to be frequently or usually indecent or obscene. Both books and periodicals may be prohibited if the Board considers that they advocate abortion or ways of carrying out abortions. Periodicals may also be prohibited if the Board is of the opinion that they have given an unduly large proportion of space to matters relating to crime. In practice, however, publications are usually only reported to the Board for obscenity. The Board will measure the literary, scientific or historical merit of the publication. It will take note of its general tenor, the language in which it is written, its likely circulation and readers and anything else it feels is relevant. It may take into account any communication with the author, editor or publisher.

You know you can publish books about how to make bombs, or ways to kill yourself or others, or odd sexual fantasies or whatever. But the law explicitly makes it clear that a book may not advocate abortion. How messed up is that?

pilly wrote: »

Am I right though in saying simply "repeal the 8th" as an option will not actually change things? That legislation will have to be brought in after that?

Yes. Simply repealing the eighth will mean that the constitution makes no specific mention of abortion/the right to life of the unborn/etc. It wouldn't in itself operate to say that woman have a right to abortion. Laws already in place which restrict or forbid abortion would still be in place.

It would be up to the Oireachtas to repeal or amend them, and I suspect they wouldn't do either very quickly - we know how they like to long-finger action on the question of abortion.

If and when they did legislate, there would then be a fresh series of constitutional challenges. Even though the Constitution would make no explicit mention of the right to life of the unborn, it would still recognise a right to life in general terms, and the Supreme Court would no doubt be invited to say whether that right applied to the born and the unborn alike. (It was fears of such a development that led to the introduction of the Eighth back in 1983.)

volchitsa wrote: »

I thought that about POLDP

POLDP was not a change - it was just the conservative view of the Supreme Court judgement in the X case made into legislation.

It was awful, but it was progress - it officially made abortion legal here. In practice, under such restrictive terms that it might as well not have, but the principle is important. Abortion is legal here - now we are just arguing about when and where.

volchitsa wrote: »

And that was supposed to improve access - imagine if they were trying to tighten the law and reduce access?

No, POLDPA was not supposed to improve access. It was supposed to put the X case judgement into law, and they did it grudgingly and on the most restrictive terms they could get away with.

They clearly thought no-one would be silly enough to actually try for an abortion under these terms unless they physically could not go to England.

The details made available about the case are pretty sketchy, and some of the commentary has tended to fill in the gaps with assumptions.

The child wasn’t sectioned “for asking for abortion”. There’s no power to section a child (or, for that matter, an adult) for asking for an abortion. A child can be sectioned, on the application of the HSE, if (a) the child is suffering from a mental disorder, and (b) the child requires treatment which they’re unlikely to get unless they are sectioned. A “mental disorder”, in this context, would be a mental illness that creates a serious likelihood of self-harm or harm to others, or that would impair her judgment so badly that her condition is likely to deteriorate (e.g. because she would refuse treatment).

It’s always the HSE that applies to court to have a child sectioned, but they can only apply on the strength of a report from a consultant psychiatrist. Obviously, unless the report says that the child has a mental disorder and requires treatment, as above, the court application won’t succeed. In practice, if a psychiatrist who has examined a child forwards a report of this kind to the HSE and says “I think you need to act”, the HSE will nearly always seek an order for the detention and treatment of the child. They’re not going to second-guess the psychiatrist who has examined the patient.

And that seems to be what happened here; a consultant psychiatrist examined the girl, reported that she suffered from a mental disorder and needed treatment that she wouldn’t get unless sectioned, and sent the report to the HSE advising a court application.

In cases of urgency the HSE can apply to the court for an order without giving notice to the child (or their parents). For obvious reasons, cases of urgency are not uncommon in mental health sectioning practice. It’s clear that in this instance the child and her parents weren’t given notice of the application. The report from the Child Care Law Reporting Project says that “both the young girl and her mother thought that they were being transferred to Dublin for a termination and she was very agitated when she found that she was being admitted to a mental health unit”.

(As an aside, the fact that the girl was “transferred” to Dublin indicates that she had already been admitted to hospital before being sectioned. We don’t know what she was in hospital for, and we don’t know whether it was a psychiatric hospital. We do know, though, that even before this episode began the girl had “a treating adolescent psychiatrist”, so I think she was already experiencing mental health challenges of one kind or another.)

Right. Where an order is made without notice like this, the matter is always back in court within a few days for the person affected, and their family, to have their say and for the order to be reviewed. And so it was here. The court heard evidence from the girl’s treating adolescent psychiatrist, and from a second consultant psychiatrist who had been retained to examine her by her court-appointed guardian. Both these psychiatrists agreed that the girl did not suffer from a “mental disorder” as defined in the Mental Health Act. In their view, even if she did have mental health challenges, they weren’t of the severity needed to justify sectioning her.

So, the picture that emerges here is:

1. The girl was already receiving psychiatric/mental health treatment before she became pregnant (or, at any rate, before she discovered she was pregnant.)

2. The realisation that she was pregnant may have precipitated something of a crisis in her condition. She seem to have threatened/expressed a desire for self-harm/suicide. This was the basis for the first psychiatrist’s report to the HSE recommending sectioning.

3. He was of the view, we are told, that the suicidal impulse was a consequence of her mental illness, and that it would not be resolved by a termination. In other words, although the pregnancy might have made her sicker, a termination wasn’t going to make her well again.

4. ON the basis of his report, the HSE applied for an urgent sectioning order, and got it.

5. The two psychiatrists who gave evidence at the subsequent full hearing of the application did not agree that she suffered from a mental disorder. She was depressed, angry and agitated, but she was “dealing with her depression well”. She wanted a termination and had “very strong views as to why”; this would at least partly account for her anger and agitation. The psychiatrists did not consider her suicidal. (Presumably, she was no longer threatening self-harm.) One of them considered that she did not suffer from a mental illness at all; the other that she did not suffer from an acute mental illness. On that evidence, it couldn’t be said that she had a “mental disorder”, so there was no basis for sectioning her and the order was discharged.

And now we come to the clusterf*ck. Under the POLDP Act, an abortion is lawful where there is a real and substantial risk of suicide, and that risk can only be averted by a termination. Obviously, that creates an incentive for a woman who wants an abortion to express any suicidal thoughts or impulses she may feel (and, some would suggest, thoughts or impulses that perhaps she doesn’t really feel). But if that woman is already receiving mental health treatment, or has previously been diagnosed with mental health challenges of one kind or another, there’s an obvious risk that what she says will result in her being sectioned.

Being sectioned isn’t inconsistent with having a termination. It’s quite possible both to qualify for a termination under the POLDP Act and to be sectioned under the Mental Health Act. If the first psychiatrist had been correct in his assessment that her suicidal ideation was the result of her mental illness, and the girl’s sectioning had been upheld, it’s entirely possible that she would have had a termination under the POLDP Act while sectioned, and would have remained sectioned until a court was satisfied by medical evidence that her mental health had improved to a point where she was no longer a threat to herself.

But that’s the position we walk ourselves into when we make suicide a relevant consideration in both (a) abortion decisions, and (b) sectioning decisions.

Hmm. TBF there are some huge assumptions in your version of events too, Peregrinus - eg based on a single term in a possibly inaccurate newspaper report you assume that she had previous history of serious mental health issues. From the reporting I have read of incidents where I have had direct knowledge of what happened (unrelated to abortion) I'd be very dubious about that. It's perfectly possible that the "treating psychiatrist" was simply the one her GP sent her to, when she first requested an abortion.

You've also missed out that we've been told that the mother brought her to Dublin, believing the process for an abortion was underway. I haven't heard any plausible explanation for why the parents weren't asked for their consent to admit her in the first place, since forced admission is only allowed as a last resort. Clearly there's a lot we don't know, I agree, but IMO the queries over how she ended up sectioned are so major that it seems to me that my short cut is closer to what we know than your assumption of previous mental illness.