The 8th amendment(Mod warning in op)

seamus wrote: »

No, this is not to do with allowing travel overseas. That required another amendment whereby the public "modified" this value statement to clarify that it didn't want to jail women who would try travel for an abortion.

The Eighth Amendment forced the Government in 2013 to make abortion legal in Ireland under certain circumstances. The Government had no choice - the Supreme Court had ruled (20 years previously) that this amendment implicitly required that abortion be legal in those circumstances.

It was presented to the public in 1983 as a permanent barrier to abortion ever becoming legal in Ireland. In actuality it copperfastened into the constitution an obligation on the state to permit it. Repealing the 8th would lift this obligation.

With all due respect, if you're this far out of the loop on the discussion, I would suggest that you go off and do some reading before coming back.

Discussing abortion and the philosophising around that is one thing, but the 8th Amendment is a specific piece of law with 30 years of history and controversy behind it that you can't just ignore and hand-wave with vague descriptions like "value statement".

Okay, thanks for that, Seamus. I will look into it, though I can already see the repeal is ripe for activation, and have to wonder how short-sighted the government at the time was. I guess they took it as the less politically dangerous option and falsely hoped that tomorrow would never come.

Anyway, my input here was supposed to give some voice to what I believe are typical angles for people concerned about optional abortion up to a certain limit, regardless of the need to repeal the 8th. It's a mixed bone of contention, so please excuse my apparent intrusion on the matter of the 8th repeal.

drkpower wrote: »

Before 1983, and after 1983, before the X case, and after the X case, abortions were being carried out in Ireland perfectly legally for many medical indications (for ectopics being the classical example).

Were they? I can't find any data that suggests there were any "official" legal abortions between 1983 and 2013, and even serious or fatal complications have not been grounds for termination so long as a heartbeat existed. Savita being the most high-profile example, but there was another in 2016:
https://www.irishtimes.com/news/crime-and-law/courts/high-court/cascade-of-negligence-led-to-pregnant-woman-s-death-1.3353142

Counsel said Mr Thawley googled ectopic pregnancy and saw it could be treated with certain medicine but was told, because the foetal sac had a heartbeat, the only option was surgical intervention and the couple felt they should follow the advice.

What the 8th (and the X case's interpretation) did was to legalise suicidality as a ground for abortion. Which is, eh, ironic to say the least! But irony aside, even now, and even post POLPA, i'm not even sure if an abortion has actually occurred under the suicidality ground (though may be wrong on that).

Suicide and risk to life.
There are about 3 abortions carried out per year on the suicide ground, and 20-odd due to the mother's life being at risk otherwise:
https://en.wikipedia.org/wiki/Protection_of_Life_During_Pregnancy_Act_2013#Implementation

So it might be a little misleading to suggest that the 8th did the complete opposite of what was intended.

Not misleading at all. The 8th was supposed to a permanent constitutional protection against any future Government legalising abortion. Not only did it fail to do that, it actually created a grey area under which abortion had to be made legal in order to satisfy the 8th amendment.

The irony is that if the 8th had never been enacted, we could still have an absolute, 100%, legal ban on abortion. The 8th prevents that from happening.

drkpower wrote: »

Im not sure what 'official' means in that context, but abortions have been happening for decades - and long before 1983 - for life-threatening medical indications, most commonly ectopic pregnancies. Ectopic pregnancies were managed in broadly the same way before and after 1983.

"Official" means recorded, standard medical practice.

I went looking (albeit not for hours) and could find no indication that abortion was standard medical practice in Ireland unless the embryo or foetus had no detectable heartbeat.

And if abortion was standard medical practice when there was a risk to the life of the mother, what happened to Savita? Why was Malak Thawley refused chemical intervention and told surgical was the only option?

Happy to be corrected though.

Seamus, you are surely not claiming that ectopic pregnancies weren't treated before 1983, or before X, or before POLPA are you? I mean, really?

Don't get me wrong, the 8th (probably more so 'X') raised unacceptable confusion in some cases as to where the line was between risk to life (which is, and always has been, legal) and no risk to life. Savita being a case in point. But the key point is that there is not, and never has been, an absolute prohibition on abortion in cases where there is a clear risk to life.

Im not sure Thawley is relevant in the context of what we are discussing.

Per Candamir above, you are misunderstanding the foetal heartbeat issue - it's presence as a contraindication has nothing to do with the 8th - that same contrainidication exists for methotrexate in the UK, USA, everywhere; foetal heartbeat as a contraindication is a proxy/indicator of foetal size (which in turn impacts on whether medical management is advisable). At the end of the day, whether chemical or surgical, the intention was to terminate, so i am surprised at the link being made with the T case and the 8th.

There has also never been absolute permission in the same cases. They apparently skirted a convenient line where things went OK so long as nobody raised any heckles about it and nobody decided to see if they could prosecute a doctor.

My point being, ultimately, that the Eighth forced the state, for the first time, to explicitly legalise abortion. Even though it had been sold as a safeguard against it

Part of your confusion as to the legal position is probably caused by the unweidly nature of irish (and english) law so its understandable; the following is just a quick legal history but should have explain the position:
- 1861 Act - makes it illegal to 'procure a miscarriage'
- 1939: R. v Bourne: This case interpreted the 1861 Act and clearly said that a doctor would not be acting unlawfully if he carried out an abortion in good faith for the purpose of preserving the life of the woman.

While Bourne was an English case, it was interpreting the same 1861 Act, so it was widely accepted both medically and legally that abortion in those circumstances in Ireland was perfectly legal. And medical and legal practice followed that legal reality for 40 years +. Now one might argue that this wasn't very clear at all, and how can we be clear when all we have are court judgments that can always be overturned, but believe it or not, as Irish law goes (especially in the 1930s - 1980s when the volume of statute law was tiny by today's standards), this was actually crystal clear. Even today many areas of 'well settled' clear law are based on case law alone.

So, from 1939, abortion was clearly legal in life threatening scenarios. You might say that in certain cases there was confusion as to what 'life threatening' meant, and i would agree with you. You might say that that law was not explicit, but I would disagree with you. By the standards of irish law, the position was quite explicit and medics and lawyers acted accordingly.

If anything, and this is just an aside, Bourne raised concerns that what we actually had post 1939 was an incredibly liberal abortion regime. That was because the judgment said a doctor wouldnt be guilty if “he was of the opinion on reasonable grounds that the probable consequence of the continuance of the pregnancy would be to make the woman a physical or mental wreck”.

kylith wrote: »

Life threatening, yes, but not health threatening. This means that women can be denied medical treatment until they are progressed enough that their illness is killing them.

Take a look at one of the women in your life. Would you be ok with telling her that if she were diagnosed with cancer during pregnancy you would deny her treatment until it becomes terminal?

I think we’re all on the same page with you there. But it’s also really important to make our arguments on repealing the 8th for the right reasons - not mistaken ones. God knows there are enough legitimate reasons for repeal!

drkpower wrote: »

Kylith, where do you get the idea that i in any way am sympathetic to law as it currently stands; i am not. I fully support removal of the 8th as currently constituted and the Oirechtas commitee reccomendations.

There is a disturbing narrative and mood out there i am sensing (and this isn't necessarily aimed at you) where if anyone counters any aspect of the pro-choice narrative, even if it is just to introduce facts to the picture, you are considered to be on the 'other side', regardless of what your actual views are. It is eerily similar to the type of reaction people get when they try and introduce any context to discussions around sexual harrassment allegations, or other hot topic issues of the moment.

The ironic tragedy of it is that this is what happened to those who in 1983 and later who sought to raise genuine concerns about the 8th. They were shouted down and pilloried by the mass consensus.

I'm busy in work today and dipping in and out here, so sorry if I misread your post as being in a different tone to what you intended. However your post did read as though you do not support repeal as abortions are carried out in life threatening situations. I intended only to point out that 'life threatening' is IMO unacceptable as it does not take into account the very real health and quality of life impacts that can happen before something becomes life threatening, and that women can be denied medications that they need because the right to life of the foetus trumps a woman's right to health

....... wrote: »

This post has been deleted.

https://www.irishtimes.com/news/crime-and-law/courts/high-court/damages-paid-after-death-of-malak-thawley-at-holles-street-1.3357391

Mr Thawley had googled ectopic pregnancy and had seen it could be treated with certain medicine, but counsel said he was told because the foetal sac had a heartbeat the only option was surgery.

Why does none of the coverage of this case say that medicine was contraindicated in this case - if it was?[/quote]
My understanding is that medical treatment is usually contraindicated when there's a heartbeat, but that it is sometimes done, often as a conservative measure for the woman's Fallopian tube. 

I get the feeling that the problem in Irish maternity care is that it isn't geared up to allowing patients to consent (or withhold consent) so instead of advising couples as to what the doctors think is best and then letting the couple choose, Irish hospitals still seem to take the authoritarian route of "this is what's going to happen", and in some cases threaten to call the guards of the woman is reluctant.

Obviously when there's a problem subsequently, if the couple also feel their fears and wishes were ignored, that makes it all the harder for them to accept.

I don't know if that's what happened for Malak Thawley, but it seems possible.

drkpower wrote: »

But, and this is the TL;DR bit, to say that docs/midwives simply tell patients what's going to happen and don't seek consent is nonsense. Consent is Medicine 101; not seeking it can get you sued and struck off. Every doc and midwife knows that, and to suggest that they are utterly cavalier with the issue is obviously a misperception.

My experience as a 'user' rather than a practitioner would lead me to believe that while what you describe is best practice the reality is very different. Now, I personally have never had the (mis) fortune to experience maternity care in Ireland but I have had occasion to be present while other's did and to be in the fortunate position that I was able to insist that proper, clear, in plain English, explanations were given as consent forms were being brandished under the noses of very young women in the middle of their first experience of labour. Indeed, I once encountered a mid-wife so obnoxious, condescending, and down right rude that I phoned his superior at 2 am and demanded she either remind him that he has a duty of care or replace him with someone who understands the concept. But I was in a privileged position- I understood what was happening, I understood what should have been happening, I had read the Patient's Rights Charter but most of all -the Boss midwife was a personal friend.

I have personally encountered a condescending attitude across the Health system in Ireland as I have a chronic illness so have a wide experience of being both an in-patient and an out-patient. People are bamboozled by medical terminology, requests for consent are phrased in such a way as there appears to be no other option, requests for consent are produced when people are in pain, vulnerable, scared, and in no condition to either question or understand what is happening. I have been tutted at for asking for clarification. I have been called difficult for asking about other options. Apparently one shouldn't question 'doctor' as 'doctor' knows best - even when doctor is intent on given one medication it clears says on one's chart that one is allergic to and one is pointing this out while on morphine.

Patients are often patronised and their wishes ignored -I have had to insist in the strongest possible terms that the staff in a University Teaching Hospital tell the Priest that he is to stop popping by to pray with my extremely ill, life long Atheist, 96 year old Great-Uncle. It was suggested to be that perhaps he would find comfort in returning to a Church he left without regret in the 1930s. Having fought through the entire Second World War without praying he is not going to change his mind and find God now and having his repeatedly expressed wish to not be 'god-bothered' ignored was impacting negatively on his recovery. But you see the Hospital has a 'Catholic Ethos'....

I was the person who had to explain in plain language to my then 78 year old, terrified, mother exactly what would happen if she signed the consent form to have her gall bladder removed. What the operation would entail, what the recovery would be like... Strangely enough she hadn't found the Consultant spouting medical terms at his posse of students before patting her on the arm and saying this is really our only recourse but of course there are always risks edifying. So I had to explain the options and the risks. She signed the form - but only after I made sure she understood what she was signing. Ironically enough, the only person who took time to explain (some) things was the member of the Admin staff looking for the details of my Mother's private insurance - although she did fail to explain that as my Mother spent the whole time in the public ward this would have been covered by her medical health card and all that was happening was a revenue generating exercise.

Now, to the condescension and lack of clear communication add the complications of a badly worded clause in the Constitution, confusion among medical staff as to what is permitted and when, overworked and under resourced staff plus a 'Catholic Ethos' among some staff or throughout the hospital and we have a recipe for chaos in maternity care.

drkpower wrote: »

The underlined is not accurate, but in fairness to you, it is a (mis)perception held by many, so its worth exploring it a little. The misperception applies across medicine, but seems to be more keenly felt in the maternity context. These are a few reasons for it:

- there is more choice in routine/elective maternity care; if you have a medical/surgical illness, there is of course choice, but often there is one really good choice (yep, take my appendix out doc) and other bad ones (ah, sure ill take my chances.....); in maternity care there are far more areas of the process where multiple choices are available and there is usually a long time to think about various antenatal options, birth plans etc. Understandably then, people make those choices, and then understandably become very invested them. Those choices often define what the childbirth experience will be.

- the 'problem' with that is that when something goes 'wrong', the time to consider new choices is usually very limited. And the consequences of the choice are very very significant for mother and baby. Communications are strained between the doc/midwife trying on the one hand to communicate significant risks in an often complex clinical situation, while trying not to freak mum out, as there is a clinical imperative in having a relatively calm labouring mum (and dad!). On the other side of the bed, mum is already reeling from the shock that 'there might be something wrong' and is understandably annoyed that the birth plan in which she had emotionally invested is being torn up before her eyes. She is being told complex clinical information, and told of life/health threatening consequences for herself and her baby. All this and she has already been in labour for 5 hours.

- All this, and in many cases the decision needs to be made in small time windows, in extreme cases minutes.

- So so when the doc/midwife communicates a choice in that context, it is completely understandable that often that is not perceived as a choice, but as being told what to do.

Now, i would be the first to agree that many docs/midwives could be better at communications; it is a crucial area of practice which traditionally at least is not part of standard training for docs/midwives; im sure that has changed but i suspect it doesnt get the priority it should for professions where you spend 75% of your day communicating often difficult issues to patients.

But, and this is the TL;DR bit, to say that docs/midwives simply tell patients what's going to happen and don't seek consent is nonsense. Consent is Medicine 101; not seeking it can get you sued and struck off. Every doc and midwife knows that, and to suggest that they are utterly cavalier with the issue is obviously a misperception.

The bit in bold is just utter nonsense.

Exceot it is exactly what happens.

As someone else has already linked to evidence I wont bother going looking for more links, but it came out very clearly in the Mother B case which was discussed on here, and for Ciara Hamilton it was even starker, because even though the midwife made a decision to carry out ARM which is not mandated as best practice by NICE, and although that intervention very nearly ended in disaster for Ms Hamilton and her baby, the judge actually found against her. Part of the reason being that he simply refused to believe that she hadnt been asked for and given her consent. AIMS has found that lack of consent is a regular occurrence in women's birthing experiences (including my own, though I was lucky enough not to have had any major issues).

Men refusing to believe women about their own experiences is something of a worldwide problem, I suspect, but the 8th was also part of Irish experiences, and complicates matters even more because it gives medical staff a cast iron excuse for ignoring their lack of consent. The HSE's own guidelines on labour and birth actually say as much too, albeit in euphemisms.

So let's have no more of this "it just doesnt happen". Yes it does happen. Regularly. And the 8th is only one part of why it happens.

CarlosHarpic wrote: »

Sadly it is probably the worst time in history for this vote. Won't pass.

Yeah, I'd say it would have passed more easily in, say, 1957.

Da Boss wrote: »

Abortion is not the solution to any issue

Except yes it is. It is the solution to being pregnant and not wanting to be pregnant for one. However I prefer the word "option" to "solution". Abortion is, and should be, an option. And just because OTHER options are available, that does not mean abortion should not be one.

Da Boss wrote: »

Abortion will lead to a “designer-baby” culture, where babies with disabilities such as Down syndrome or abnormalities will be indiscriminately aborted , denied their only life.

I see nothing wrong with that. I see no moral or ethical problems with an early stage fetus with abnormalities or defects being terminated before they reach the stage of person-hood.

Da Boss wrote: »

Another issue is the fact it will lead to increased recklessness in bed and more “accidents“

To put the above in more clear English, you are claiming that the availability of abortion on demand will increase the quantity of unplanned pregnancies. The first question is obvious then: Have you ANY data or citations from countries that have allowed abortion by choice that shows this has, or generally, actually happens? Or is it just a fantasy you are making up because you think it SOUNDS true, and useful to your agenda?