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Abortion - Report of the Joint Committee on the Eighth Amendment of the Constitution

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  • #302
    recedite
    Closed Accounts Posts: 13,989 ✭✭✭✭recedite


    oscarBravo wrote: »
    If there are unintended consequences to legislation enacting a 12-week limit, it's easy to fix. If there are unintended consequences to a Constitutional provision giving force to a 12-week limit, we'll have to wait years..
    So I'm asked to balance the vague possibility that there might be some "unintended consequences" to a time restriction written into the constitution, versus the certainty that the same restriction if it was within legislation would be completely subject to the whim of a few TDs holding the balance of power in a minority govt.

    This is why the constitution is the proper place to enshrine human rights, not legislation.


  • #303
    recedite
    Closed Accounts Posts: 13,989 ✭✭✭✭recedite


    oscarBravo wrote: »
    Yes. That's the job of the D. And removing "human rights" from the unborn makes perfect sense, because fertilised eggs shouldn't have human rights.
    The proposal is to remove all human rights from all the unborn, not just "fertilised eggs".
    You may think that there is a vast difference in a human one hour before it is born versus one hour afterwards, but I would disagree.

    That is fundamentally what this referendum is all about, and everyone will have to make up their own mind before ticking that box on the ballot paper.


  • #304
    Nettle Soup
    Closed Accounts Posts: 1,312 ✭✭✭Nettle Soup


    Anyone watching Willie O'Dea and Fidelma Healy Eames on the Tonight Show? It's car crash stuff. This debate will get weirder and weirder.
    Willie's answer was bewildering. He wants to repeal the 8th but is also opposed to the repeal.

    Now he is refusing to answer questions on his position. Cowardice.


  • #305
    oscarBravo
    Technology & Internet Moderators Posts: 28,851 Mod ✭✭✭✭oscarBravo


    recedite wrote: »
    So I'm asked to balance the vague possibility that there might be some "unintended consequences" to a time restriction written into the constitution, versus the certainty that the same restriction if it was within legislation would be completely subject to the whim of a few TDs holding the balance of power in a minority govt.
    It's not a vague possibility that there will be unintended consequences of writing detailed legislative proposals into the Constitution; it's a racing certainty. How do we know? Because every. single. time. we've pandered to the whims of the "won't someone think of the little babbies" scaremongerers by doing precisely that, we've found ourselves in a situation where the State is desperately trying to explain to the Supreme Court why it's OK to deny a woman her fundamental right to bodily integrity just because she became pregnant - willingly or otherwise.
    This is why the constitution is the proper place to enshrine human rights, not legislation.
    I have no problem with human rights being enshrined in the Constitution. I have a problem with constraints on female rights being codified in the Constitution as a sop to people who lie awake at night tortured by the vision of rogue TDs in league with evil doctors who are poised and ready to slaughter unborn children on the cusp of birth.
    recedite wrote: »
    The proposal is to remove all human rights from all the unborn, not just "fertilised eggs".
    Yes. There's no legally tidy way to allocate human rights to an embryo at one point in gestation and withhold them at another.
    You may think that there is a vast difference in a human one hour before it is born versus one hour afterwards, but I would disagree.
    And yet, you seem to think there's a vast difference in a "human" one hour either side of a point in time twelve weeks after conception.

    Or maybe you don't think that, and are capable of thinking about the topic with a shade more nuance than that; in which case I'll thank you to make the same assumption about me.
    That is fundamentally what this referendum is all about...

    No, that's one heavily-slanted perspective on what this referendum is all about.

    If you truly want to turn the debate into a caricature in which those who desire full repeal of 43.3 are advocates of allowing a foetus to be killed in the womb hours before delivery, perhaps you could point to one single example, anywhere, from anyone, who has ever advocated such a thing?


  • #306
    Zubeneschamali
    Registered Users, Registered Users 2 Posts: 16,686 ✭✭✭✭Zubeneschamali


    recedite wrote: »
    You may think that there is a vast difference in a human one hour before it is born versus one hour afterwards, but I would disagree.

    The law disagrees with you.

    Before birth, it is not a citizen with full rights. One hour after, it is. Lots and lots of legal differences between before and after birth.

    Note that I am not saying that it legally has no rights and no legal existence before birth - it does. But they are quite different from the rights of a child.


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  • #307
    seamus
    Registered Users, Registered Users 2 Posts: 68,190 ✭✭✭✭seamus


    recedite wrote: »
    That's not actually true. The proposal is to remove the constitutional right to life of the unborn.
    Right. The removal of the explicit right to life. Because "the unborn" is an incredibly vague statement which could mean anything from a fertilised egg up to a baby just before birth.
    Legalised euthanisa/abortion any time up until birth would be entirely possible. I'm not saying its likely, just that there would be no constraints.
    You're incorrect. It's not only unlikely, it's basically impossible. The constitution itself already explicitly guarantees the right to life, the deliberate euthanisation of a viable baby in utero would run counter to that. And unless the constitution were to explicitly state that the Dail may make laws allowing for euthanasia, that situation is not going to change.

    And in any case, you'd be willing to restrict the fundamental rights from one set of actual living people (women), because there may be a potential - but in your words unlikely - loophole that affects virtual entities that don't even exist?


  • #308
    recedite
    Closed Accounts Posts: 13,989 ✭✭✭✭recedite


    Zubeneschamali wrote: »
    The law disagrees with you.

    Before birth, it is not a citizen with full rights. One hour after, it is. Lots and lots of legal differences between before and after birth.

    Note that I am not saying that it legally has no rights and no legal existence before birth - it does. But they are quite different from the rights of a child.
    There is a case coming up in a Supreme Court soon to consider this very question.
    But as you already know the answer to it, perhaps you should send it in to them, written on the back of a postcard?
    seamus wrote: »
    You're incorrect. It's not only unlikely, it's basically impossible. The constitution itself already explicitly guarantees the right to life, the deliberate euthanisation of a viable baby in utero would run counter to that. And unless the constitution were to explicitly state that the Dail may make laws allowing for euthanasia, that situation is not going to change.
    Sometimes I despair at the lack of understanding. What you describe above is the situation at present, due to the 8th amendment.
    If the proposed new amendment passes, all that will be overturned. That is the whole point of the proposal.


  • #309
    seamus
    Registered Users, Registered Users 2 Posts: 68,190 ✭✭✭✭seamus


    recedite wrote: »
    Sometimes I despair at the lack of understanding. What you describe above is the situation at present, due to the 8th amendment.
    If the proposed new amendment passes, all that will be overturned. That is the whole point of the proposal.
    No, what I describe was the case before the 8th amendment and will remain the case after it's removed.

    It was generally agreed that a right to life existed under the constitution, though no specific case or challenge had yet taken place to ascertain the exact nature of that right to life, i.e. when that right came into force.

    So the 8th amendment attempted to add some clarity to this by adding a blanket right, and to avoid a ruling ever being made on this. But of course, even that wasn't clear and the morning-after pill became legal because, you know, "the unborn" is still an incredibly vague term.

    Your assertion is that by removing the eighth, at some point in the future the Supreme Court could decide that a baby at 40 weeks of gestation has zero rights under the Constitution.
    That's an assertion that's not only completely blind to the procedure, law and science that might surround such a decision, but also to the blind to the details of the discussion that has already taken place before the 8th amendment.

    It is a virtual impossibility that euthanisation of the unborn would be legal under the constitution.

    And frankly, to claim you're basing a "No" vote on what is a piece of fantastical scaremongering is both grasping at straws and bordering on the unbelievable.


  • #310
    recedite
    Closed Accounts Posts: 13,989 ✭✭✭✭recedite


    seamus wrote: »
    It was generally agreed that a right to life existed under the constitution, though no specific case or challenge had yet taken place to ascertain the exact nature of that right to life, i.e. when that right came into force.

    So the 8th amendment attempted to add some clarity to this by adding a blanket right..
    Yes, and the purpose of the proposed amendment is to reverse that situation, by specifically removing those human rights from "the unborn".

    Surely its not that difficult to understand?


  • #311
    seamus
    Registered Users, Registered Users 2 Posts: 68,190 ✭✭✭✭seamus


    recedite wrote: »
    Yes, and the purpose of the proposed amendment is to reverse that situation, by specifically removing those human rights from "the unborn".

    Surely its not that difficult to understand?
    No, it's not.

    But the removal of that explicit right doesn't automatically make the "unborn" a non-entity under the constitution.

    And to state otherwise is disingenuous.

    "Surely its not that difficult to understand?"


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  • #312
    recedite
    Closed Accounts Posts: 13,989 ✭✭✭✭recedite


    Well, one of us is completely wrong about this.
    And its not me :p


  • #313
    FreudianSlippers
    Registered Users, Registered Users 2 Posts: 20,397 ✭✭✭✭FreudianSlippers


    recedite wrote: »
    Sometimes I despair at the lack of understanding. What you describe above is the situation at present, due to the 8th amendment.
    If the proposed new amendment passes, all that will be overturned. That is the whole point of the proposal.

    I despair at your lack of understanding of this point to be honest. It's getting frustrating that you seem to be deliberately obtuse to the point that has been made on a number of occasions.

    If the 8th is repealed as proposed, and the Dáil attempts to enact legislation that would permit termination of viable babies (and for the sake of argument let's say that the medical recommendations regarding viability are followed; i.e. non-viable 22 weeks or less gestational age, with anencephaly or with a confirmed diagnosis of trisomy 13 or 18 - Source 1; Source 2) then such legislation would be Unconstitutional pursuant to Article 40.3 and 40.3.1.


  • #314
    recedite
    Closed Accounts Posts: 13,989 ✭✭✭✭recedite


    FreudianSlippers wrote: »
    such legislation would be Unconstitutional pursuant to Article 40.3 and 40.3.1.
    I presume you mean Article 40.1
    All citizens shall, as human persons, be held equal before the law.
    This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.
    and article 40.3.1
    The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
    The purpose of the 8th was to clarify that the "unborn" counted as human persons for the purposes of the right to life.

    The purpose of the proposed amendment is to take away that right. So if passed, the above quoted articles would only apply to the "born" human. Pre-birth they would not be recognised as human persons or citizens in any way by the constitution.


  • #315
    volchitsa
    Registered Users, Registered Users 2 Posts: 10,018 ✭✭✭✭volchitsa


    recedite wrote: »
    I presume you mean Article 40.1 and article 40.3.1 The purpose of the 8th was to clarify that the "unborn" counted as human persons for the purposes of the right to life.

    The purpose of the proposed amendment is to take away that right. So if passed, the above quoted articles would only apply to the "born" human. Pre-birth they would not be recognised as human persons or citizens in any way by the constitution.

    Yes as in the vast majority of countries, even those with bans on abortion, because to grant them such a right requires removing basic human rights from one group of existing citizens.

    Either the unborn are citizens or they are not. With all rights of citizens or none. Removing basic human rights from pregnant women in order to grant some rights to the unborn for reasons that are speculative at best is just not acceptable now that women are legally equal to men.

    ”I enjoy cigars, whisky and facing down totalitarians, so am I really Winston Churchill?” (JK Rowling)



  • #316
    recedite
    Closed Accounts Posts: 13,989 ✭✭✭✭recedite


    It is impossible to enable the "termination" of a certain class of person in the constitution, so if this proposed amendment passes, the unborn will implicitly be stripped of any kind of "personhood"; in other to deny human rights to a certain class of person, you must first deny their humanity.

    Following that they become just somebody else's "property". Presumably belonging to the woman who is carrying them, but perhaps the father could also claim some ownership.
    In surrogacy cases, ownership would be "up for grabs". The surrogate might decide to abort against the wishes of the genetic parents. In which case it would just be a contractual matter, nothing more. Maybe some compensation to be paid to cover the financial outlay of the genetic parents.


  • #317
    oscarBravo
    Technology & Internet Moderators Posts: 28,851 Mod ✭✭✭✭oscarBravo


    recedite wrote: »
    The purpose of the 8th was to clarify that the "unborn" counted as human persons for the purposes of the right to life.

    Which has had one intended consequence - to prevent abortions from legally being carried out in Ireland - and decades of unintended consequences.

    Your argument against removing the assertion that the "unborn" have a right to life is the vague possibility that someone, somewhere, will want legislation passed to allow the killing of viable foetuses up to the point of birth.

    I'm still waiting for examples of anyone who actually wants such legislation.


  • #318
    volchitsa
    Registered Users, Registered Users 2 Posts: 10,018 ✭✭✭✭volchitsa


    recedite wrote: »
    It is impossible to enable the "termination" of a certain class of person in the constitution, so if this proposed amendment passes, the unborn will implicitly be stripped of any kind of "personhood"; in other to deny human rights to a certain class of person, you must first deny their humanity.

    Following that they become just somebody else's "property". Presumably belonging to the woman who is carrying them, but perhaps the father could also claim some ownership.
    In surrogacy cases, ownership would be "up for grabs". The surrogate might decide to abort against the wishes of the genetic parents. In which case it would just be a contractual matter, nothing more. Maybe some compensation to be paid to cover the financial outlay of the genetic parents.
    Where can one consult the lists and definitions of the different classes of person who exist please? AFAIAA there is only one kind, who are all entitled to the same basic human rights.

    As for the nonsense about surrogacy and fetuses, how do they manage in other countries?

    (Couldn't a surrogate mother in Ireland legally go to the UK to abort, same as any other pregnant woman?
    So the 8th doesnt help there at all.)

    ”I enjoy cigars, whisky and facing down totalitarians, so am I really Winston Churchill?” (JK Rowling)



  • #319
    demfad
    Registered Users, Registered Users 2 Posts: 3,182 ✭✭✭demfad


    recedite wrote: »
    The proposal is to remove all human rights from all the unborn, not just "fertilised eggs".
    You may think that there is a vast difference in a human one hour before it is born versus one hour afterwards, but I would disagree.

    That is fundamentally what this referendum is all about, and everyone will have to make up their own mind before ticking that box on the ballot paper.

    The proposed legislation (should the amendment be repealed) is to allow terminations up to 12 weeks. The limit is applied using legislation not the constitution for legal reasons.

    For you to imply this means 9th month terminations is misleading at best. It doesn't.


  • #320
    FreudianSlippers
    Registered Users, Registered Users 2 Posts: 20,397 ✭✭✭✭FreudianSlippers


    recedite wrote: »
    I presume you mean Article 40.1 and article 40.3.1 The purpose of the 8th was to clarify that the "unborn" counted as human persons for the purposes of the right to life.

    Yes, I would have thought obvious typographical error was obvious.

    Lucky for us all, the Supreme Court is about to make a decision which will resolve your born humans vs unborn humans scenario.
    The purpose of the proposed amendment is to take away that right. So if passed, the above quoted articles would only apply to the "born" human. Pre-birth they would not be recognised as human persons or citizens in any way by the constitution.
    I'm fairly sure it's not worth my time to have this Constitutional law discussion with an armchair lawyer who clearly has a chip on their shoulder about abortion (remember I used to be a Legal Discussion mod and recall your abortion-related posts)


  • #321
    demfad
    Registered Users, Registered Users 2 Posts: 3,182 ✭✭✭demfad


    oscarBravo wrote: »
    Which has had one intended consequence - to prevent abortions from legally being carried out in Ireland - and decades of unintended consequences.

    Your argument against removing the assertion that the "unborn" have a right to life is the vague possibility that someone, somewhere, will want legislation passed to allow the killing of viable foetuses up to the point of birth.

    I'm still waiting for examples of anyone who actually wants such legislation.

    In any case: existing foreign legislation (for late terminations) is for terminating the pregnancy and NOT euthanising the foetus.


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  • #322
    Consonata
    Registered Users, Registered Users 2 Posts: 1,420 ✭✭✭Consonata


    recedite wrote: »
    It is impossible to enable the "termination" of a certain class of person in the constitution, so if this proposed amendment passes, the unborn will implicitly be stripped of any kind of "personhood"; in other to deny human rights to a certain class of person, you must first deny their humanity.

    Following that they become just somebody else's "property". Presumably belonging to the woman who is carrying them, but perhaps the father could also claim some ownership.
    In surrogacy cases, ownership would be "up for grabs". The surrogate might decide to abort against the wishes of the genetic parents. In which case it would just be a contractual matter, nothing more. Maybe some compensation to be paid to cover the financial outlay of the genetic parents.

    Abortion isn't a legal issue in Ireland, it is a financial one. Those who have the finances to get an abortion can get the boat to England, those who have not, do not.

    Now unless you want to imprison every poor 16 year old who goes to Birnmingham who gets an abortion in week 5 of a pregnancy, then this scaremongering over third trimester abortions is nonsense.


  • #323
    end of the road
    Registered Users, Registered Users 2 Posts: 29,537 ✭✭✭✭end of the road


    Consonata wrote: »
    Abortion isn't a legal issue in Ireland, it is a financial one. Those who have the finances to get an abortion can get the boat to England, those who have not, do not.

    Now unless you want to imprison every poor 16 year old who goes to Birnmingham who gets an abortion in week 5 of a pregnancy, then this scaremongering over third trimester abortions is nonsense.


    i have to disagree. it is a real fear and just because it's not proposed to allow it right now, it can't be guaranteed that it won't be in the future, and it therefore cannot be dismissed. in terms of the abortion debate it's a legitimate argument.

    I'm very highly educated. I know words, i have the best words, nobody has better words then me.



  • #324
    recedite
    Closed Accounts Posts: 13,989 ✭✭✭✭recedite


    demfad wrote: »
    In any case: existing foreign legislation (for late terminations) is for terminating the pregnancy and NOT euthanising the foetus.
    Are you referring to abortion, or not?
    In other words, is the foetus alive or dead at the end of the process?

    It may sometimes be possible to "terminate a pregnancy" without killing the foetus (as in the "Miss Y" case) but that is not generally attempted in countries that have a liberal abortion regime.


  • #325
    Consonata
    Registered Users, Registered Users 2 Posts: 1,420 ✭✭✭Consonata


    recedite wrote: »
    It may sometimes be possible to "terminate a pregnancy" without killing the foetus (as in the "Miss Y" case) but that is not generally attempted in countries that have a liberal abortion regime.

    Examples?


  • #326
    FreudianSlippers
    Registered Users, Registered Users 2 Posts: 20,397 ✭✭✭✭FreudianSlippers


    recedite wrote: »
    Are you referring to abortion, or not?
    In other words, is the foetus alive or dead at the end of the process?

    It may sometimes be possible to "terminate a pregnancy" without killing the foetus (as in the "Miss Y" case) but that is not generally attempted in countries that have a liberal abortion regime.
    So are you suggesting you would be ok with a pre-foetus 12 week (gestational) period where abortions are allowed "on demand"?


  • #327
    recedite
    Closed Accounts Posts: 13,989 ✭✭✭✭recedite


    Consonata wrote: »
    Examples?
    Of what?
    FreudianSlippers wrote: »
    So are you suggesting you would be ok with a pre-foetus 12 week (gestational) period where abortions are allowed "on demand"?
    IMO if they changed around the proposal to say that the existing 8th amendment provisions should only kick in after 9 weeks, the referendum would be a lot more winnable.

    A couple of reasons for that;
    12 weeks is a bit too advanced. Any foetus stage is IMO, as opposed to an embryonic stage.
    It would allow rape victims to terminate/abort in the early stages.
    Banning abortion up to 9 weeks is probably unenforceable anyway nowadays, due to the use of abortion pills. Unenforceable laws are always bad laws.


  • #328
    FreudianSlippers
    Registered Users, Registered Users 2 Posts: 20,397 ✭✭✭✭FreudianSlippers


    recedite wrote: »
    Of what?

    IMO if they changed around the proposal to say that the existing 8th amendment provisions should only kick in after 9 weeks, the referendum would be a lot more winnable.

    A couple of reasons for that;
    12 weeks is a bit too advanced. Any foetus stage is IMO, as opposed to an embryonic stage.
    It would allow rape victims to terminate/abort in the early stages.
    Banning abortion up to 9 weeks is probably unenforceable anyway nowadays, due to the use of abortion pills. Unenforceable laws are always bad laws.
    I think you're trying to muddy the water by moving away from gestational age. I also don't think you understand the fundamental purpose of the Constitution (or a Constitution); hint - it's not for legislating.


  • #329
    recedite
    Closed Accounts Posts: 13,989 ✭✭✭✭recedite


    FreudianSlippers wrote: »
    I also don't think you understand the fundamental purpose of the Constitution (or a Constitution); hint - it's not for legislating.
    Its meant for setting the basic rules and parameters of government and human rights, within which the legislators can then operate.
    I don't agree with giving them a carte blanche.
    You might as well scrap the constitution altogether if that's what you want.


  • #330
    FreudianSlippers
    Registered Users, Registered Users 2 Posts: 20,397 ✭✭✭✭FreudianSlippers


    recedite wrote: »
    Its meant for setting the basic rules and parameters of government and human rights, within which the legislators can then operate.
    I don't agree with giving them a carte blanche.
    You might as well scrap the constitution altogether if that's what you want.
    Not at all what I suggested; however your suggestion of legislating in the Constitution seems apparent.


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  • #331
    Zubeneschamali
    Registered Users, Registered Users 2 Posts: 16,686 ✭✭✭✭Zubeneschamali


    recedite wrote: »
    IMO if they changed around the proposal to say that the existing 8th amendment provisions should only kick in after 9 weeks, the referendum would be a lot more winnable.

    The existing 8th provisions are the problem, no point in having a referendum if we are not going to remove them.

    Some easy-to-pass half solution will just kick the can 10 years down the road, again.


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