"The constitutional equal right to life of pregnant women and unborn children means that viability closes off the possibility of abortion," wrote Fiona de Londras in Tuesday's Irish Independent. It's a powerful soundbite, but in some ways a redundant one, as it's not really Bunreacht na hEireann that causes viability to close off the possibility of abortion. It's basic medical reality that does that.
The Oxford English Dictionary's primary definition of abortion says that an abortion, of its very nature, occurs before a child "is capable of independent survival". The previous edition of the OED spelled out that from a medical point of view, "abortion is limited to a delivery so premature that the offspring cannot live, i.e. in the case of the human foetus before the sixth month." Stedman's medical dictionary spells this out, saying that abortion takes place "before viability" which it defines as "(20 weeks' gestation [18 weeks after fertilization] or fetal weight less than 500 g)".
If we trawl the report of 2000's All Party Oireachtas Committee on Abortion we find that the then-Master of the Coombe said that abortion constituted the premature ending of a pregnancy at any point before the foetus or baby is viable, with both the then-President of the Medical Council and the then-Master of the National Maternity Hospital saying that abortion meant the ending of a pregnancy in the first trimester, so within fourteen weeks.
There's obviously some disagreement here, but still, it seems clear from all of these points that medically speaking it is oxymoronic to talk of aborting a child who could -- with help -- survive without depending wholly upon its mother. In other words, it's just not that it's immoral or illegal or against the Constitution to abort a viable child. Medically speaking, it seems to be impossible.
That's not to say that it's impossible, medically speaking, to kill that child. Just that such an act may not, medically speaking, be abortion. Or so, at least, the medical authorities would seem to believe.
With that it mind, it's worth considering what happened in the horribly sad case of the lady we'll presumably all know henceforth as 'Miss Y', a story which is filling Ireland's papers and which has two victims: a small child, prematurely taken from the womb and currently fighting for its life, and a young woman who has been the victim of a rapist, a culture that left her terrified of pregnancy, a state unprepared to help asylum seekers let alone pregnant ones, and a pro-choice charity that her own account suggests allegedly gave advice both incorrect and incomplete.
The backstory we can only imagine, of course, but if all the papers other than the Irish Times are right, Miss Y arrived in Ireland as an asylum seeker and someone who'd been raped before leaving her home country; here she would have lived in one of those pitiful Direct Provision centres, and a fortnight or so after arrival she underwent a medical examination.
This examination established that she was eight weeks pregnant; shocked by this news she immediately expressed a desire to end the pregnancy,and the nurse with whom she was dealing suggested she talk to the IFPA. It makes no sense to paint this as her having been denied an abortion at this point, as she'd not spoken to the proper people, and there's no suggestion in her recent Irish Times interview that she was immediately suicidal. In shock, yes, and distressed and surely sick with worry, yes, but not suicidal.
It looks like she was given no meaningful care at all at this stage, which doesn't reflect well at all on how we treat those who would seek asylum among us.
Anyway, Miss Y followed the nurse's suggestion and contacted the IFPA, which on the face of it seems to have mucked her about for ages: it talked about 28-week limits in Britain when the reality is that there's a 24-week limit there -- leaving aside how most abortions in England are almost certainly technically illegal -- and it apparently never told her about how such pro-choice charities as the Abortion Support Network might have helped her with money. It seems too that it didn't send her to doctors or arrange for her to get proper counselling or psychiatric help. Certainly, she said nothing about such things when being interviewed.
During this period she became genuinely suicidal, even attempting suicide -- she tried to hang herself -- shortly after the IFPA informed her that it would cost her €1500 to go to England for an abortion. In an article she wrote a day after interviewing Miss Y, Kitty Holland said it is understood that Miss Y was referred to the HSE in May, which suggests that if she was referred to the HSE it happened in the aftermath of this incident. However, leaving aside how it is unclear whether Miss Y ever acted on the reference and contacted the HSE, it is difficult to accept this detail as true: if this really happened, did Miss Y say it in the Irish Times interview with Kitty Holland? If she said it, why didn't Kitty report it? Is it really plausible that Kitty failed to ask whether Miss Y had any dealings with the HSE between her initial examination and her mid-July approach to a GP?
Eventually, during her twenty-third week of pregnancy, she went to a GP who directed her to hospitals where she was established as being both suicidal and 24 weeks pregnant; although she wanted an abortion, she was told that it was too late for one. She then attempted to starve herself to death -- technically this was her second suicide attempt, and should probably be seen as such rather than as a hunger strike -- and the HSE took out a court order so she could be forcibly hydrated, though this was not acted on, as Miss Y was persuaded to start eating again in the belief that she would need to be strong if there was to be an abortion.
Instead, though, she was presented with the decision of her termination panel to the effect that her pregnancy could be terminated by by premature delivery through caesarian section. Miss Y accepted this, as she felt she had no choice, and the delivery took place, it appears, on Wednesday 6 August, 26 weeks into Miss Y's pregnancy, and two weeks after her arrival in hospital.
(Nothing that has been reported suggests that the criteria for evaluating risk were established in line with the sensible principles laid down by the High Court in the 2006 Cosma case, which required that patients should be evaluated in the context of ongoing therapeutic relationship involving counselling and all psychiatric treatment that she needed and that the evaluation should show that all other ways of treating suicidality should have been considered properly before the 'last resort' was deemed necessary. But perhaps these principles have been deemed null and void by the X Legislation; I am no expert, and cannot say. I would like to know, just as I would like to know what is the normal therapeutic response when presented with a suicidal patient, and indeed with a patient seeking to starve herself to death. Without knowing these answers, I'm loath to comment.)
Now, much of the early outrage on this -- and you'll see it being picked up on in the likes of the Guardian and following that the New York Times -- seems to have been based on the assumption that Miss Y had sought an abortion for seventeen weeks and had been deliberately denied one until it was too late and a caesarian was the only option. However, by her own account she only went to the proper authorities in the twenty-third week of her pregnancy; things moved quickly after that.
It seems, therefore, to have been on the first day of her twenty-fourth week of pregnancy that Miss Y went to hospital to be assessed and scanned. Should she have been granted an abortion at that point?
Many, clearly, think so; many others, equally clearly, do not; both views are defensible, depending on one's premises. Medically, though, it seems that there's a case that an abortion at that point would have been not merely illegal or immoral, but, as detailed above, impossible. Miss Y's child was by this point not simply a unique human being, but a unique and viable human being, and it is impossible to abort viable human beings. You're not engaging in an abortion then, medically speaking. You're doing something else.
It is crucial to remember that this very scenario was foreseen during the discussions surrounding last year's X legislation. Indeed, the heads of the bill spelled out the obligation to preserve the life of the unborn child if at all possible, noting that:
"In circumstances where the unborn may be potentially viable outside the womb, doctors must make all efforts to sustain its life after delivery. However, that requirement does not go so far as to oblige a medical practitioner to disregard a real and substantial risk to the life of the woman on the basis that it will result in the death of the unborn."
Last year's legislators didn't pluck this obligation out of the air. They were acting, after all, in strict accordance with the provisions of the 1992 X judgment, which the aforementioned Fiona de Londras summed up last year as demanding the following reading of the Constitution:
"Article 40.3.3 of the Constitution recognises the equal right to life of pregnant women and the unborn. This means that abortion is generally prohibited in Ireland but is constitutionally permissible where three conditions are met: (i) there is a real and substantial risk to the life of the woman, (ii) in all probability that risk can be averted only by termination of the pregnancy, and (iii) the foetus is not viable such that abortion (rather than early delivery) is the appropriate means of termination."
(It should be remembered that in 1983, when article 40.3.3 was added to the Constitution, twice as many people voted for it as against it; it's utter nonsense to talk of a cadre of "Catholic fundamentalists" getting their hands on Bunreacht na hEireann and jamming the eighth amendment into it, as I saw one particularly crude piece claiming during the week. The eighth amendment was twice as popular than it was unpopular, and of those eligible to vote, only one person in six voted against it.)
So the X judgment ruled that abortion was permissible only when there was no other way of saying a woman's life, or, if you like, that it was legitimate to take one human life if not doing so meant the loss of two. It did not rule that abortion was permissible when it was the best, or the most humane, or the least distressing way of saving a woman's life. It ruled that it was permissible if it was only way of doing so.
What does this mean? Well, to start with, every single person who for the last twenty years and more has been arguing that we should be legislating for the X judgment has in effect been campaigning for what happened to Miss Y. I'm not saying that they were campaigning for this knowingly; I don't believe that for a moment. I am, however, saying that all their slogans and marches and articles and banners have implicitly demanded the very mess that happened in the last month or so. Every single one. They can hardly say they weren't warned.
Breda O'Brien, for instance, wasn't joking when she wrote in the Irish Times on 6 July 2013 that the bill allowed that "a baby can be delivered prematurely, but cannot be killed after viability." Scorning the notion that this supposed "protection" for the unborn was an appealing facet of the Bill, Ms O'Brien described this "much vaunted provision" as a "truly monstrous proposal", posing a grim and challenging rhetorical question:
"In a couple of decades, there will be young adults appearing before tribunals, passionately demanding to know why they, as perfectly healthy unborn children, were singled out for deliberate premature delivery, and left blind, disabled or suffering from cerebral palsy? All in the complete absence of any demonstrable benefit to their mothers."
One would, at the very least, wonder where the burden of proof would lay in such cases. Would doctors be obliged to demonstrate that there they couldn't think of any other way to keep desperate mothers alive?
Breda O'Brien was hardly alone in pointing this out. It was in the heads of the bill, after all. Everyone who campaigned for X legislation, who voted for X legislation, who supported politicians because they'd promised X legislation, who cheered when X legislation was passed -- this is their mess. And that includes those who saw this as a step towards the repeal of the Eighth Amendment, and the eventual introduction of openly pro-choice legislation, because they were willing to allow situations like this, horrible messes like this, as a 'step'. They were willing to use human beings as a means to the end they wanted.
They were willing to treat people like things.
It won't do for supporters of the X legislation to say that they didn't realise this would happen: they were campaigning for X to be given legislative force, and as such it was their duty to understand what it was they were campaigning for. If they campaigned in ignorance then, why should they be assumed to be campaigning in an informed way now? Why would they even believe that of themselves?
I'm not blaming those who were open in their opposition to so-called 'Protection of Life During Pregnancy Act'. I may disagree with those who want to repeal the Eighth Amendment, but at least they're consistent in their thinking, wrong though I believe it to be. No more than Ireland's pro-lifers who opposed legislating for X, they didn't do this. They'd rather the problem had been dealt with discreetly in the first place. Out of sight, out of mind.