Abortion Discussion, Part Trois

NuMarvel wrote: »

This is more or less what I said about the X Case, so we agree on that part.

They also found that the 8th could be used to prevent abortions overseas that wouldn't be legal here. Hence why we had the referendum on the 13th Amendment to overturn this finding. And you don't seem to be challenging me on that, so it looks you pretty much agree with my "confused interpretation".

Now that you have clarified, I do agree with you. On the second point, I would say the 8th could have been used to support legislation designed to stop people travelling. But in the event, that never happened, because the subsequent amendment clarified that people did not want the right to travel interfered with. So the 8th also supported that position, because what happens abroad is sufficiently outside the main constitutional issue to be open to interpretation for either position.

recedite wrote: »

Now that you have clarified, I do agree with you.

It wasn't a clarification, just a repetition of what I said in my previous post in slightly different words, but whatevs.

recedite wrote: »

On the second point, I would say the 8th could have been used to support legislation designed to stop people travelling. But in the event, that never happened, because the subsequent amendment clarified that people did not want the right to travel interfered with.

It most definitely could have been used to support legislation to stop abortions overseas. Clarification isn't the word I'd use to describe the outcome of the referendum, but regardless, the result was the same; the 8th could no longer be used to restrict traveling abroad for an abortion.

recedite wrote: »

So the 8th also supported that position, because what happens abroad is sufficiently outside the main constitutional issue to be open to interpretation for either position.

No. The 8th didn't support any other position on the issue of travel. The Supreme Court judgement in the X Case was clear that the 8th could be used to stop girls or women going abroad for abortions that were illegal here. That is a plain and simple legal fact which isn't not open to any kind of interpretation. Especially one that suggests the 8th couldn't be used to restrict travel.

If the referendum on the 13th amendment was rejected, or if the 13th was repealed and the 8th remained, there would be no question as to whether the 8th could be used to restrict travel; it could.

NuMarvel wrote: »

No. The 8th didn't support any other position on the issue of travel. The Supreme Court judgement in the X Case was clear that the 8th could be used to stop girls or women going abroad for abortions that were illegal here. That is a plain and simple legal fact which isn't not open to any kind of interpretation. Especially one that suggests the 8th couldn't be used to restrict travel.

Are you a SC judge then? Because the judges in the actual case did not say that. One judge said that the right to life trumped the right to travel, but on the other hand a court should not make any order that is futile or unenforceable. They also said that preventing travel to an EU country would most likely be illegal under EU law, but that there wasn't time to find out by taking it to the ECJ.
Another said On the right to travel...

153. Such a right has been identified in The State (M.) v. The Attorney General [1979] I.R. 73 as one of the unenumerated rights, all of which enjoy the same guarantee as contained for those expressed in Article 40. If the purpose of exercising the right to travel is to avail of a service, lawful in its own location, but unlawful in Ireland, is the right curtailed or abolished because of that local illegality and/or because of the guarantee in the Amendment? If it were a matter of a balancing exercise, the scales could only tilt in one direction, the right to life of the unborn, assuming no threat to the life of the mother. In my view, it is not a question of balancing the right to travel against the right to life; it is a question as to whether or not an individual has a right to travel — which she has. It cannot, in my view, be curtailed because of a particular intent. If one travels from the jurisdiction of this State to another, one, temporarily, becomes subject to the laws of the other state. An agreement, commonly called a conspiracy, to go to another state to do something lawfully done there cannot, in my opinion, permit of a restraining order. Treason is thought to be the gravest of crimes. If I proclaim my intent to go to another country there to plot against the Government here, I may, by some extension of the law against sedition, be prosecuted and, consequently, subject to detention here, but I cannot be lawfully prevented from travelling to that other country there to plot the overthrow, since that would not be a crime in the other country. I go further. Even if it were a crime in the other country, if I proclaim my intent to explode a bomb or shoot an individual in another country, I cannot lawfully be prevented from leaving my own country for that purpose.
154. The reality is that each nation governs itself and enforces its own criminal law. A court in one state cannot enjoin an individual leaving it from wrongdoing outside it in another state or states. It follows that, insofar as it interferes with the right to travel, there is no jurisdiction to make such an order. In this context, I cannot disregard the fact that, whatever the exact numbers are, there is no doubt that in the eight years since the enactment of the Amendment, many thousands of Irish women have chosen to travel to England to have abortions; it is ironic that out of those many thousands, in one case of a girl of fourteen, victim of sexual abuse and statutory rape, in the care of loving parents who chose with her to embark on further trauma, having sought help from priest, doctor and gardaand with an outstanding sense of responsibility to the law of the land, should have the full panoply of the law brought to bear on them in their anguish.
In short

(1) The Attorney General acted properly in bringing the matter before the court.

(2) The terms of the Eighth Amendment, now contained in Article 40, s. 3, sub-s. 3 contemplate lawful abortion within the State.

(3) Despite the absence of regulating legislation, the judicial arm of government must seek to enforce the guarantee.

(4) On the facts of this case, the mother is not to be prevented from having an abortion.

(5)In any event, she cannot be lawfully prevented from leaving the State, whatever her purpose in doing so.

(6) The failure of the legislature to provide for the regulation of Article 40, s. 3, sub-s. 3 has significantly added to the problem.

155. It was for these reasons that I agreed that the order of the High Court should be set aside.

recedite wrote: »

Are you a SC judge then?

Nope, but I know how to read their judgements, which is more than I can say for you. Hint; look at the ruling of the court, not just one specific judge.

It was an appeal, so the "judgement" was to overrule the previous high court judgement preventing the girl from travelling. By a majority of the SC judges present.
Different judges had slightly different interpretations as I said, but the net effect was that (in the absence of any specific legislation) it was not feasible for the court to interfere with her right to travel.

recedite wrote: »

It was an appeal, so the "judgement" was to overrule the previous high court judgement preventing the girl from travelling. By a majority of the SC judges present.
Different judges had slightly different interpretations as I said, but the net effect was that (in the absence of any specific legislation) it was not feasible for the court to interfere with her right to travel.

You're making this up as you go along. The fact that it was an appeal doesn't have any relevance and the references to legislation weren't about travel, but the substantive issue of when a woman could or couldn't access abortion in Ireland. And I haven't a clue why you put judgement in quotations, because it's one of the judgements on the Supreme Court's Important Judgements webpage.

For all the world, it looks like you're doing searches for particular words, finding stuff that seems to fit your argument, but paying no heed to the overall context. I suggest you read the thing in full. I appreciate that at 93 pages, it's not short, but it'll be better than you throwing out random comments that don't make sense.

recedite wrote: »

It was an appeal, so the "judgement" was to overrule the previous high court judgement preventing the girl from travelling. By a majority of the SC judges present.
Different judges had slightly different interpretations as I said, but the net effect was that (in the absence of any specific legislation) it was not feasible for the court to interfere with her right to travel.

It was a split decision, 4 -1, so one SC judge did believe the 8th could indeed be used to prevent travel.

If two others had agreed, Ireland would have become an open prison for all females.

Loafing Oaf wrote: »

I think you're being unfair to McGrath here, AFAIK he supports repeal of the 8th. He didn't say so specifically, but it looks to me like he is urging pro-lifers not to use those with Down Syndrome etc. for propaganda purposes.

I'm not alone in my interpretation - Disability rights campaigner Suzy Byrne:

https://twitter.com/suzybie/status/947027673553035264

recedite wrote: »

It was an appeal, so the "judgement" was to overrule the previous high court judgement preventing the girl from travelling. By a majority of the SC judges present.
Different judges had slightly different interpretations as I said, but the net effect was that (in the absence of any specific legislation) it was not feasible for the court to interfere with her right to travel.

I thought the thing about the X case was that the girl and her parents were actually abroad IN THE UK for the purpose of obtaining an abortion and they returned to this jurisdiction without the procedure being performed AFTER hearing the AG had got a court order preventing them from travelling TO THE UK for an abortion. They had travelled to outside the jurisdiction when the injunction to prevent the girl from travelling outside the jurisdiction was granted, they were beyond the injunction's scope as a result.

The injunction was granted to the AG under the provisions of article 43.3.3 to prevent the girl from travelling abroad and getting an abortion procedure that she couldn't get here. The AG only became aware of her situation after the girl's parents asked the Gardai if DNA from the aborted foetus could be used as evidence in court.

In effect the High Court did interfere with the girl's right to travel, using article 43, section 3, sub-section 3 as the basis for doing so.

I refreshed my memory through the link below.

Link..... http://www.thejournal.ie/what-is-the-eight-amendment-abortion-1625596-Aug2014/

The X Case highlighted the issues with the 8th Amendment when a teenage girl became pregnant after being raped, and sought an abortion.

She had planned to travel to Britain, but the family contacted the gardaí beforehand to ask if DNA from the aborted foetus could be used as evidence in court.

The Attorney General became aware of the situation and sought an injunction under Article 40.3.3 to prevent the girl having the procedure.

This injunction was granted in the High Court, and then appealed to the Supreme Court, where it was overturned.

It was held by majority opinion that a woman had a right to an abortion under Article 40.3.3 if there was “a real and substantial risk” to her life.

This was not legislated for until the Protection of Life During Pregnancy Act.

NuMarvel wrote: »

You're making this up as you go along. The fact that it was an appeal doesn't have any relevance...

To simplify matters, how about you quote the relevant bit of text which is "the judgement". The part where the SC says a woman does not have the right to travel to UK for an abortion because of the 8th amendment.
Then we'll discuss that.
Otherwise we'll just assume that the bit I quoted earlier is correct.

recedite wrote: »

To simplify matters, how about you quote the relevant bit of text which is "the judgement". The part where the SC says a woman does not have the right to travel to UK for an abortion because of the 8th amendment.
Then we'll discuss that.
Otherwise we'll just assume that the bit I quoted earlier is correct.

Something tells me we'd end up going around in circles on that, so let's simplify it even further and work backwards from the end result.

In 1992 we amended the constitution by adding a new line that meant the 8th couldn't be used to restrict the freedom to travel abroad. That referendum was held because, following a Supreme Court judgement in the X Case, the government wanted the people to say whether the 8th could be used in that manner.

So, what could the Court have ruled that meant we’d put that question to the people in the first place? In simple terms, it boils down to one of two options: they ruled that the 8th could stop women traveling, or that it couldn’t.

There aren’t any other possibilities that don’t boil to one of these options. If they said the 8th could be used but only in some circumstances, that still boils down to saying it could. If they said 8th could stop women but it may not be feasible, then that boils down to saying it could because they make rulings about law, not practicality. And they couldn’t have said they didn’t know or weren’t certain because their purpose to be clear and final on matters of Irish law. So it really was down to one of two options - it could or it couldn't.

If they ruled that it couldn’t stop women, then there was no need for a vote in the first place. A referendum isn't needed to uphold SC rulings, and it's not likely that the government hoped or believed the people would overturn the ruling.

So that leaves the other option; the SC found that the 8th could prevent travel.

Simply put, there is no other ruling the court could have made that would have led to the government holding a referendum.

You have a lot of "ifs" in there. The reason you can't find what you are looking for is because it does not exist. The SC did not set out to make a judgement on the right to travel; their purpose was to either uphold or strike out the previous judgement preventing travel in the specific x case. They chose by majority verdict to strike it out.
In the course of deciding that, the various judges put forward different interpretations of how the right to life of the unborn might clash with the general right to travel, EU rights, and the general undesirability of making unenforceable laws.
Basically this left more questions unanswered than answered regarding travel, hence the subsequent amendment was put to the people to decide.

The substantive question in that case was whether abortion was legal in Ireland if the prospective mother was suicidal, and that was answered definitively with a Yes.

recedite wrote: »

You have a lot of "ifs" in there. The reason you can't find what you are looking for is because it does not exist. The SC did not set out to make a judgement on the right to travel; their purpose was to either uphold or strike out the previous judgement preventing travel in the specific x case. They chose by majority verdict to strike it out.
In the course of deciding that, the various judges put forward different interpretations of how the right to life of the unborn might clash with the general right to travel, EU rights, and the general undesirability of making unenforceable laws.
Basically this left more questions unanswered than answered regarding travel, hence the subsequent amendment was put to the people to decide.

The substantive question in that case was whether abortion was legal in Ireland if the prospective mother was suicidal, and that was answered definitively with a Yes.

Still wrong on the issue of travel, but I've realised what the problem is; your source doesn't have the full judgement published on the Supreme Court website. Yours starts about halfway in and doesn't include the actual court ruling at the start which says (with the parts relevant to travel bolded):

Held by the Supreme Court (Finlay C.J., McCarthy, O'Flaherty and Egan JJ.: Hederman J. dissenting) in allowing the appeal and discharging the injunctions,
1, (Hederman J. concurring) that the Attorney General had properly exercised his duties in the performance of his office in bringing the matter before the High Court.
2. (Hederman J. concurring): That notwithstanding the absence of "laws" enacted by the Oireachtas, Article 40, s. 3, sub-s. 3 of the Constitution itself provided its own clear rule of law authorising the courts, as organs of the State, to defend and vindicate the constitutional rights guaranteed by the Article.
3. (Hederman J. concurring): That the Constitution requires that its provisions be interpreted harmoniously and that the rights thereby guaranteed be interpreted in concert. Where a conflict of rights in any case cannot be avoided, a changing hierarchy of rights was envisaged, headed generally by the right to life, the destruction of which right was irreversible.
4. (Hederman J. dissenting): That the true interpretation of Article 40, s. 3, sub-s. 3 of the Constitution required that termination of pregnancy was permissible only when it was established as a matter of probability that there was a real and substantial risk to the life of the mother if such termination were not effected. To prevent termination except in circumstances where there was a risk of immediate or inevitable death of the mother did not sufficiently vindicate the right to life of the mother.
Per Hederman J. The evidence required to justify a termination of pregnancy must be of such a weight and cogency as to leave open no other conclusion but that the consequences of the continuance of the pregnancy will, to an extremely high degree of probability, cost the mother her life and medical evidence must be based on the most competent medical opinion available. In the instant case the evidence adduced fell short of this standard.
5. (Hederman J. dissenting): That the risks to the life of the mother which should be considered by the Court included a real and substantial risk that the mother might commit suicide.
Per Finlay C.J., Hederman and Egan JJ.: That, notwithstanding the difficulties in proofs, supervision or enforcement and the likelihood of widespread evasion of any such injunctions, Article 40, s. 3, sub-s. 3 required the courts in proper cases and upon the exercise, as far as practicable, of their equitable discretion to restrain by injunction the removal of the unborn from the jurisdiction so that the right to life of the unborn might be defended and vindicated.
Per O'Flaherty J.: An injunction restraining a woman from leaving the jurisdiction for the purpose of having an abortion would interfere to an unwarranted degree with the individual's freedom of movement and the authority of the family and the aspiration expressed in the Preamble to assure the dignity and freedom of the individual.
Per Finlay C.J., Hederman and Egan JJ.: The right to travel simpliciter could not take precedence over the right to life.
Per Hederman J.: The Court should decline to grant an injunction restraining the girl from leaving the country for the purpose of having an abortion because of the impossibility of enforcement; if the girl travelled out of the jurisdiction and had an abortion the matter could be dealt with by contempt of court proceedings on her return but the unborn life could not be restored.
Per McCarthy J.: Injunctions should not be granted to restrain activity in another jurisdiction since the right to travel should not be curtailed because of a particular intention

What's above is the judgement. That's what the court found. What your source has are judges' explanations, citing other cases they considered etc, but ultimately, it's what's above that becomes law.

I can take the same piece of text and boldify alternative facts.

5. (Hederman J. dissenting): That the risks to the life of the mother which should be considered by the Court included a real and substantial risk that the mother might commit suicide.
Per Finlay C.J., Hederman and Egan JJ.: That, notwithstanding the difficulties in proofs, supervision or enforcement and the likelihood of widespread evasion of any such injunctions, Article 40, s. 3, sub-s. 3 required the courts in proper cases and upon the exercise, as far as practicable, of their equitable discretion to restrain by injunction the removal of the unborn from the jurisdiction so that the right to life of the unborn might be defended and vindicated.
Per O'Flaherty J.: An injunction restraining a woman from leaving the jurisdiction for the purpose of having an abortion would interfere to an unwarranted degree with the individual's freedom of movement and the authority of the family and the aspiration expressed in the Preamble to assure the dignity and freedom of the individual.
Per Finlay C.J., Hederman and Egan JJ.: The right to travel simpliciter could not take precedence over the right to life.
Per Hederman J.: The Court should decline to grant an injunction restraining the girl from leaving the country for the purpose of having an abortion because of the impossibility of enforcement; if the girl travelled out of the jurisdiction and had an abortion the matter could be dealt with by contempt of court proceedings on her return but the unborn life could not be restored.
Per McCarthy J.: Injunctions should not be granted to restrain activity in another jurisdiction since the right to travel should not be curtailed because of a particular intention

Looks different now, doesn't it? As I say the different interpretations raised more questions than they answered, regarding travel.

recedite wrote: »

I can take the same piece of text and boldify alternative facts.

Looks different now, doesn't it? As I say the different interpretations raised more questions than they answered, regarding travel.

Looks no different, because I was highlighting the opinions of the majority of judges and you're highlighting the opinions of just 1. Does the fact that 1 judge dissented on the finding that suicide could be grounds to have an abortion mean that too was open to interpretation? Not bloody likely; everyone knows that was the court's ruling, despite there being dissent.

Is there some other fundamental aspect of law you need explained to you, or are you finally going to recognise that it was the finding of the court that the 8th could be used to restrict travel?

I've got 4 sentences boldified. You only have 2.
I win.

I think part of the reasoning behind the SC decision on overturing the injunction was because a forseeable result in not doing so would be regular court and GS action to prevent women leaving the country for abortions, and a very strong chance that women would make a direct effort to stymie the ruling by making it clear publicly that they would be travelling abroad for abortions in spite of the law [and SPUC et al] leaving the Govt [politicians] and the justice system with an overload of cases and where to put the pregnant women defying the law.

The judges [and others] saw the inevitable public backlash should prosecutions, jailings and/or enforced hospitalisations happen and told the politicians the mess was in their hands to solve, that court judgements in liue of failure by the legislature to provide laws would be rule by fiat. Ergo the referendums to try sort out the mess by the legislature.

aloyisious wrote: »

I think part of the reasoning behind the SC decision on overturing the injunction was because a forseeable result in not doing so would be regular court and GS action to prevent women leaving the country for abortions, and a very strong chance that women would make a direct effort to stymie the ruling by making it clear publicly that they would be travelling abroad for abortions in spite of the law [and SPUC et al] leaving the Govt [politicians] and the justice system with an overload of cases and where to put the pregnant women defying the law.

The judges [and others] saw the inevitable public backlash should prosecutions, jailings and/or enforced hospitalisations happen and told the politicians the mess was in their hands to solve, that court judgements in liue of failure by the legislature to provide laws would be rule by fiat. Ergo the referendums to try sort out the mess by the legislature.

But they only overturned the injunction in the circumstances of Ms X. The court held that, in general, the 8th could be used to prevent travel.

I'm sure the judges considered the other factors, especially that of public backlash because that's what was happening at the time of the X Case. But given the obligations the 8th puts on the state, including the courts, to respect, defend, and vindicate the unborn's right to life, those issues had to take second place.

Irish pro-lifers hire an English company to keep Irish abortions in England.

NuMarvel wrote: »

But they only overturned the injunction in the circumstances of Ms X. The court held that, in general, the 8th could be used to prevent travel.

I'm sure the judges considered the other factors, especially that of public backlash because that's what was happening at the time of the X Case. But given the obligations the 8th puts on the state, including the courts, to respect, defend, and vindicate the unborn's right to life, those issues had to take second place.

That continual reliance on the courts to deal with the lack of legisltion was, and is, part of the problem; a lack of courageous action by the Governments over and up to the present day. In the years around and after the amendments [plural] there was much comment on the courts being handed the poisoned chalice where it came to dealing with the legal issue of abortion due to the politicians continually failing to keep up with the Irish changing social positions and circumstances when it came to Irish Abortion NEEDS being met here, instead of being exported, and how the judges were sick to their stomachs at the lack of legislation coming from the legislators to deal in a straighforward way with abortions here.

The 8th amendment is a classic example of a "hooky" amendment [to use a term twice-wise]: an action that made up for the lack of courageous legislation AND for the use of the existing public emotions then to hook and pacify the public who didn't foresee the 8th would lead to further legal cases in the SC here. It was the great advertised cure-all ad run by the great and mighty here to sort out public disquiet on an issue causing social ills and family break-ups. Remember the family-unit is the bedrock on which the constitution is based.

The politicians are using the "insertion into the constitution" tool to get around the lack of legislation on the issue and coming up with further amendments after the courts here and abroad forced their hands into sorting things out when it came/comes to abortion here as an Irish problem first and foremost.

In a way [though I don't like the idea of politicians using it to avoid getting their hands, political lives and reputations dirtied] I appreciate the use of the constitution as it needs the public to change it's content, where-as legislation can be changed willy-nilly by politicians in village politics deals.

In hindsight, I can now say that if the 8th amendment vote was re-run now, I would bin it. It, as I wrote above, was a way to get the politicians off the hook.

PopePalpatine

Listened to the debate on the Sean O'Rourke show earlier, Maria Steen won it hands down coming in prepared, reduced it to children [not unborn children or feotus] then likened the suggested legalization of the abortificient pil to legalizing killing by bad driving [might as well remove the laws against bad driving resulting in killing others on the roads as well]. Maria reduced Catherine to the "I didn't interrupt you, don't interrupt me" level, unable to reply to Maria's statements and questions, just stood on her track record as Oireachtas committee chair and witnesses statements.

Loafing Oaf

PopePalpatine wrote: »

Irish pro-lifers hire an English company to keep Irish abortions in England.

I wonder are they going to deploy their usual trick of using unflattering photos of 'pro-abortion' politicians to make them look sinister and authoritarian. Difficult to pull that one off with Simon 'in-betweener' Harris...

PopePalpatine

Loafing Oaf wrote: »

I wonder are they going to deploy their usual trick of using unflattering photos of 'pro-abortion' politicians to make them look sinister and authoritarian. Difficult to pull that one off with Simon 'in-betweener' Harris...

I'm thinking there could be another angle for them, namely depicting the pro-choice male politicians as wimps getting bossed around by bossy women.

http://t3.gstatic.com/images?q=tbn:ANd9GcS4N-0q9maKGRsFfw0H1lTQEuSKabYPfo6ki4ydrLHQG6M6x9qG

PopePalpatine wrote: »

I'm thinking there could be another angle for them, namely depicting the pro-choice male politicians as wimps getting bossed around by bossy women.

They could take inspiration from the anti-suffragette posters

Odhinn

PopePalpatine wrote: »

I'm thinking there could be another angle for them, namely depicting the pro-choice male politicians as wimps getting bossed around by bossy women.

It seem's M Martin has taken the bit between the teeth ahead of Leo [no pun intended] and I hope there's a free vote in FF on the issue or there'll be defections. Prime Time has Maria Steen of the Iona Institute on shortly, twice today it has given her equal time on the debate.

PopePalpatine wrote: »

Irish pro-lifers hire an English company to keep Irish abortions in England.

It's important that this crowd are based outside the state.

The money will flow from the foreign donors directly to the PR crowd, never touch Ireland and never come under SIPO's jurisdiction, making a mockery out of the laws of this country that this lot claim they want to 'protect'.

This item tracking Senators and TD's positions on repeal the 8th as an issue may be useful. I'm assuming it'll be available and updated by the journalist ONLY as the referedum date get's nearer.... https://www.irishtimes.com/news/politics/referendum-tracker.

Edit, I'm a bit worried about Leo's mention of other constitutional articles, with ref to getting the referendum wording right [by way of the AG] to avoid any court action ruling the wording of said referendum QUESTION uconstitutional. I'm wondering if his remark was solely about any possible future court hearing or whether the upcoming SC case on Judge Humphreys ruling might end up needing the AG to revise any wording already under pre-planning consideration.

They'll wait for that SC judgement before committing, but I'm convinced that a simple deletion of the 8th isn't enough - repeal and replacement with a statement giving a positive right to abortion under conditions set by law is far preferable.