The Fabulous Father Flannery

It’s depressing to see the Irish Times continuing to spin a line about the Redemptorist priest Tony Flannery that is less about simple facts than about perpetuating a narrative that the Catholic hierarchy, whether at home or in Rome, is out of step with Irish society and the modern world.

Today’s editorial, for instance, says that Tony Flannery and some of his colleagues are “under threat due to their insistence on the importance of personal conscience”. This could hardly be less true, not least because the Church is pretty big on conscience; Peter Kreeft puts it well, paraphrasing St Thomas Aquinas:

“if a Catholic comes to believe the Church is in error in some essential, officially defined doctrine, it is a mortal sin against conscience, a sin of hypocrisy, for him to remain in the Church and call himself a Catholic, but only a venial sin against knowledge for him to leave the Church in honest but partly culpable error.”

Tony Flannery can say what he likes; what he can’t do is say what he likes as a Catholic priest, giving the impression that it’s within the bounds of Catholicism. And as the head of Tony’s order stated today, Flannery’s comments involved “fundamental areas of Catholic doctrine, including the priesthood, the nature of the Church, and the Eucharist.”

How convenient...

Tony Flannery was one of a handful of priests who hit the headlines last year after being disciplined by Rome; Brian Darcy, whose ‘silencing’ was clearly nothing of the sort, was the most famous of this batch, but Tony Flannery, as one of the founders and leaders of the Association of Catholic Priests, may be even more important.

One of his brothers, Frank Flannery, is a close confidante and adviser of Enda Kenny; it’s been speculated that Enda’s line on Cloyne may have ultimately derived – perhaps by an indirect route – from Tony Flannery. Certainly, Tony Flannery welcomed the speech; I’m not quite sure why, given his own opposition to mandatory reporting of abuse allegations, which led Ian Elliott, the Irish Church’s chief child protection officer, to criticise him for what Elliott described as “an attempt at minimising the serious nature of clerical child abuse”.

This weekend, in the aftermath of the big Dublin pro-life vigil, the New York Times reported that Tony Flannery intended to break his silence about what he regards as an inquistition-style campaign against him by Rome because of his line on certain aspects of Church teaching.

The story seems to have broken at a rather inconvenient time for the Irish Church, just after having its new primate-to-be announced and fresh from helping rally 25,000 people onto the streets of Dublin in the biggest counter-government demonstration since Enda Kenny became Taoiseach. And isn’t that handy, given that Tony Flannery is brother to one of Enda Kenny’s right-hand men?

The dog that used to bark...

Anyway, the Irish Times ran a column similar to the New York Times one on their website on Sunday morning, it having come from the Press Association; shortly after running the piece, however, they redacted what was probably the most important part of it.

The redacted paragraphs were substantively identical to these three from the New York Times piece:

“In the letter, the Vatican objected in particular to an article published in 2010 in Reality, an Irish religious magazine. In the article, Father Flannery, a Redemptorist priest, wrote that he no longer believed that ‘the priesthood as we currently have it in the church originated with Jesus’ or that he designated ‘a special group of his followers as priests.’

Instead, he wrote, ‘It is more likely that some time after Jesus, a select and privileged group within the community who had abrogated power and authority to themselves, interpreted the occasion of the Last Supper in a manner that suited their own agenda.’

Father Flannery said the Vatican wanted him specifically to recant the statement, and affirm that Christ instituted the church with a permanent hierarchical structure and that bishops are divinely established successors to the apostles.”

With these removed, the Irish Times gives the impression that Tony Flannery got into trouble because of his openness to women priests and married priests, and his line on homosexuality, contraception, and communion for married divorcees. The reaction to this narrative has been utterly predictable, given how, as the Irish Times says, in connection with lastyear’s misconceived ACP survey, “Fr Flannery is correct when he speaks of a disconnect between the Irish laity and Rome.”

Don’t get me wrong: I’m sure Rome’s not happy about any of that either, not least because there’s a duty on priests to try to bridge such disconnects, but that’s not what's caused this.

The heart of the matter...

Rather, the main issue here is that Tony Flannery rejected the very idea of a sacramental priesthood as founded by Christ. Leaving aside how this would have put him in a position as paradoxical as it would be untenable, it was clearly something that Rome couldn’t let go.

Rome didn’t have much choice in this. Its hands were tied. Indeed, if Father Flannery’s in danger of excommunication – and seemingly, despite his claims, he was never threatened with this, which the Irish Times could surely have discovered if it had bothered – it’s because he pretty much put himself out of communion by denying the sacramental reality of Holy Orders. That’s the way excommunication works: in practice you excommunicate yourself, and the Church only tells you what you’ve done.

I’d even wonder whether by claiming that the Last Supper has historically been misrepresented by the Church he implicitly cast doubt on the sacramental reality of the Eucharist, and indeed almost all the sacraments and the basic authority of the Church. I think that may be what the head of the Irish Redemptorists meant when he spoke of Tony Flannery being ambiguous on this point.

The CDF’s dealings with Tony Flannery will have been designed to help him realise the seriousness and implications of what he’s said so he can figure out in conscience where he stands, ideally with a view to him coming afresh to an acceptance of Church teaching

Now that's not quite true, is it, Tony?

Monday morning’s paper saw the misleading effect that the redacted article conveyed being heavily pushed. Despite being about a central, fundamental, and essentially internal Catholic issue, the entire story was presented as yet another piece in the long-running Irish Times storyline I call ‘Catholic Hierarchy out of step with modern life’.

Tony Flannery sulks in Monday’s paper that the CDF has never approached him directly, describing how he’d been summoned to Rome to answer to the head of his order. He shouldn’t have seen anything sinister in that, the Church being best understood not as a neat pyramid but as a loose network of largely autonomous organisations; a Redemptorist priest who’d taken a vow of obedience, Tony Flannery is subject to a line management system, for want of a better phrase, which Rome was respecting.

On meeting the head of his order, he was faced with a choice he said he found impossible:

“Either I sign a statement, for publication, stating that I accepted teachings that I could not accept, or I would remain permanently banned from priestly ministry, and maybe face more serious sanctions. It is important to state clearly that these issues were not matters of fundamental teaching, but rather of church governance.”

Of course, this is rather at odds with today’s statement from the head of the Irish Redemptorists, and it’s telling that Tony Flannery glosses over how he denied the very basis of the priesthood; this cannot be dismissed as a mere matter of Church governance, being quite clearly a matter of fundamental teaching.

Feed my lambs... tend my sheep... feed my sheep...

Remember: Tony Flannery had denied the sacramental nature of the priesthood, saying that he no longer believed it had been instituted by Christ, and that it was, in effect, the creation of an elite who usurped power in the Church. I have no idea what he means when he says the Creed and says he believes in an ‘apostolic Church’.

It is quite possible to argue this, of course: it’s a commonplace of Protestant theology, for instance, with Protestants generally rejecting the notion of a sacramental priesthood instituted by Christ, and tending to believe only in the broader ‘priesthood of all believers’. But that’s the thing: that’s a Protestant view, and one completely incompatible with Catholicism.

“Catholic doctrine and discipline may be walls,” wrote G.K. Chesterton in 1908, “but they are the walls of a playground.” Shepherds are meant to protect their sheep, and it’s the job of the Church to step in when one of its priests teaches something that is utterly contrary to Catholic teaching. It’s not hasty about doing so, either: Tony Flannery’s spent years away from the Catholic mainstream, but in denying the sacramental basis of the priesthood he clearly went too far.

The Irish Times is putting forward a profoundly misleading narrative of what’s happened here, and sadly, where the Irish Times misleads, others tend to follow,. It may simply be that they think their readers wouldn’t care about issues of ecclesiology, but the fact remains that by stripping the story of its most important element they distort the story profoundly. So much for the ‘Story of Why?’.

Legislating for X: An Unorthodox View

And so the Oireachtas is conducting its hearing on how best to legislate for the X judgement, the Government having said that after pondering the Expert Group's report, they're going to legislate and regulate in accordance with the Supreme Court's ruling in the 1992 X case.

Labour's high command are rejoicing, as they look set to manage the rare feat of achieving something in their manifesto. Fine Gael are in disarray, as they'd said they wouldn't legislate for abortion. Pro-choicers are crying 'victory!'. Pro-lifers are weeping and wailing and gnashing their teeth. The bishops have finally found some backbone and said what they think. People who think that religious citizens shouldn't have a say in how their country runs things are angry. It's all very loud. It's hard to hear oneself think.

Still. We should try. I happen to think it's possible to legislate for X while still keeping Ireland abortion-free. Or, if you like, for both Labour and Fine Gael to keep promises that helped get them elected. I might be wrong, but hear me out...

Crossing the Red C, with some difficulty...

A few weeks back a poll found that 63pc of people wanted a new referendum on limiting the constitution such that a threat of suicide would be excluded as grounds for abortion, and 82pc wanted a new referendum to extend the grounds for abortion to include threats to a mother's health, or in cases where a woman had been raped. Leaving aside moral issues, I’m not sure how that would logistically be possible, as it’d mean that a right to abortion would be dependent on other legal processes and verdicts of guilt, but still, it seemed that 45pc of people wanted both to tighten and loosen the constitutional limits. 

It is possible to make sense of this, but doing so requires some contortion.

The same poll also found that 36pc of Irish people want abortion on demand, which is a depressingly high figure, but does at least suggest that the likes of Ivana Bacik and Clare Daly are most definitely in a minority, with most people recognising that without a right to life all other rights are meaningless, and that basic 'golden rule' ethics mean that we shouldn't will that others should suffer a fate we'd not have wanted for ourselves.

85pc of people in that poll said that they would be happy for the government to legislate in accord with the X case. Some pro-choicers have decreed that this means there's massive support for their position.

They'd be wrong. I support legislation for the X principles, and I'd not be the only pro-lifer who does so. The question, of course, is 'what sort of legislation?' and 'would it be enforced?' Because if we're to legislate in line with what the Constitution actually says, this would entail very narrow legislation, and would probably require serious and careful monitoring.

My biggest concern is that I'm not sure our politicians have the political will to do this.

Enter the European Court of Human Rights...

Unfortunately, most people still don't seem to get what the Supreme Court said in the X case, or what our obligations are in connection with the ECHR. The European Court of Human Rights wants us to clarify things, as the X judgment has remained a theoretical thing for twenty years: the ECtHR wants us to make this practical. There are plenty who point out that we don't need to do what the ECtHR says, and they're right, up to a point, but I tend to think that disregarding our treaty obligations is something we shouldn't do.

The ECtHR, in considering the X case and its ramifications, says this:

"The Court does not consider that the constitutional courts are the appropriate fora for the primary determination as to whether a woman qualifies for an abortion which is lawfully available in a State. In particular, this process would amount to requiring the constitutional courts to set down on a case by case basis the legal criteria by which the relevant risk to a woman’s life would be measured and, further, to resolve through evidence, largely of a medical nature, whether a woman had established that qualifying risk. However, the constitutional courts themselves have underlined that this should not be their role."

Or, in other words, courts have legal proficiency, not medical proficiency. They are simply not qualified to make medical decisions or to rule on medical matters. They may lay down legal principles, but it is inappropriate for them to evaluate medical situations.

Keep this in mind, and then remember what the X decision did: it established a legal test, as a way of interpreting the Constitution, and it applied that test in a real-life medical situation. The ECtHR is of the view that the first thing the Supreme Court did was entirely valid, and that, as a general principle, the second thing was outside its sphere of competence. Yes, it was legal, but only because in the absence of a consistent and transparent medical process, we didn't have any choice. It wasn't a good idea. It wasn't, as the ECtHR says, 'appropriate'.

Revisiting the X Case...

The central point of the X case revolved around the issue of whether the threat to a mother's life that justified a termination of pregnancy, should such a termination be necessary, had to be certain or merely probable.  Chief Justice Finlay ruled that:

 "... the test proposed on behalf of the Attorney General that the life of the unborn could only be terminated if it were established that an inevitable or immediate risk to the life of the mother existed, for the avoidance of which a termination of the pregnancy was necessary, insufficiently vindicates the mother's right to life. 

I therefore conclude that the proper test to be applied is that if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible, having regard to the true interpretation of Article 40.3.3° of the Constitution."

It's this test in accordance with which the government is obliged to legislate, not the X application, and it is only in accordance with our ECHR obligations, rather than the Irish Constititution that legislation is needed – Chief Justice Finley pointed out during the 1992 X case that “This Court has on a number of occasions said that legislation to protect constitutional fights is not strictly necessary”. 

Now, as the expert group has recognised, this test has two conditions:

“The Supreme Court in the X case held that the correct test was that a termination of pregnancy was permissible if it was established as a matter of probability that:

1) there is a real and substantial risk to the life of the mother; and

2) this risk can only be averted by the termination of her pregnancy.”

Over the past twenty years we've tended to emphasise the first condition and basically ignore the second. The issue in the X case wasn't whether terminations of pregnancy might be allowed in Ireland, in certain circumstances. It was proximity and magnitude of risk.

What was not in dispute was that termination should be permissible when it was the only option, the only way of protecting the mother's life.

"As far as practicable..."

This shouldn't surprise us. Take a look at the Eighth Amendment to the Constitution:

"The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right."

The State guarantees as far as practicable to defend and vindicate the right to life of the unborn, with due regard to the equal right to life of the mother. Or, if you like, the State is bound to protect the lives of the unborn, as much as it possibly can, save where doing so would endanger the lives of their mothers. That's what the Irish people voted for in 1983. 

The crucial issue here, on which the X case turned, was what was meant by the phrase "as far as practicable". During the hearings for X, Justice McCarthy asked Peter Shanley SC, acting for the government, if he accepted that the 1983 amendment envisaged a 'lawful abortion' in Ireland, and Shanley said that he did:

"Yes, I accept that. For example, a mother suffering from a cancerous condition which requires chemotherapy has the right to have her pregnancy terminated. The pregnancy may be terminated if, but only if, there is an inevitable danger to the right to life of the mother."

(It's worth noting, of course, that Shanley wasn’t a doctor either, and that it's not a given that cancer treatment necessitates termination of pregnancy, as Frederic Amant, for instance, points out.)

Justice Hederman spelled out what the Eighth Amendment meant in this regard, saying:

"The death of a foetus may be the indirect but foreseeable result of an operation undertaken for other reasons. Indeed it is difficult to see how any operation, the sole purpose of which is to save the life of the mother, could be regarded as a direct killing of the foetus, if the unavoidable and inevitable consequences of the efforts to save the mother's life leads to the death of the foetus. But like all examples of self-defence, of which this would be one, the means employed to achieve the self-protection must not go beyond what is strictly necessary."

Hederman thus distinguished between the direct killing of a foetus and the death of a foetus as an ancillary consequence of another procedure, the intended aim of which is the preservation of life. 

Catholic moral teaching would use the terms 'direct abortion' and 'indirect abortion', based on a distinction between direct and indirect effect, an ethical principle which informs general medical treatment in Ireland, as 2000's Oireachtas Committee on Abortion recognised, noting that "It forms a crucial element in the Medical Council ethical guidelines in this area."

We needn't get hung up on McCarthy's phrase 'legal abortion'; contrary to the claims of some pro-choicers, this isn't a matter of wordgames, not least as the term 'abortion' has a fair few meanings, some of which seem to be incompatible. As William Binchy put it to the Oireachtas Committee on Abortion in 2000:

"… it’s not so much the language that counts here, it’s the activities that are done and the context in which they are done that’s important – the principles that underlie the activities in question."

Is abortion medically necessary?

What's the point of this issue of necessity? Well, the expert group says that one of the key principles underlying any method of giving concrete effect to the X decision is that:

"The constitutional obligation on the State is by its laws to respect, and as far as practicable, defend and vindicate the right to life of the unborn."

Any legislation that doesn't meet that obligation would be unconstitutional; any legislation that goes beyond facilitating termination of pregnancy save when it's utterly unavoidable if it's to remove a danger to a mother's life would simply be in breach of the Constitution. 

Finley's little word 'only' is probably the key to this whole thing.

Abortions clearly take place to save the lives of mothers. They’re rare, but they happen. In England and Wales, for instance, 46 of the 189,931 abortions performed in 2011 – that’s 0.02pc of the total – were carried out in order to protect the life of the mother, one being an emergency abortion, and all others being ‘Ground A’ abortions, justified on the basis that:

“the continuance of the pregnancy would involve risk to the life of the pregnant woman greater than if the pregnancy were terminated”

Abortions under Ground F to save a mother’s life in an emergency situation are incredibly rare in England and Wales. There was, as noted, only one such in all of 2011, and seemingly not one Irish resident has undergone a ground F abortion there since the X case in 1992.

Given that roughly 4,000 of Britain’s roughly 190,000 annual abortions are performed at the behest of Irish women, it seems that approximately one in 47 abortions in the UK is an ‘exported’ Irish abortion. And, as we’ve seen, it looks as though 46 British abortions a year might pass the X test. Leaving aside margins of error, and bearing in mind the fact that the figures tend to be roughly the same each year, the statistics suggest that in any given year, one of these 46 will probably be performed for an Irish mother. One. 

The thing is, though, that this one might not meet the X criteria. Even if it meets the first criterion, there being a real and substantial risk to a mother’s life, would it meet the second?

What these rarities don’t establish is whether these abortions were the only way of saving those women’s lives. That’s the key question: is it ever the case that the only way to save a mother's life is to perform a direct abortion?

Pro-lifers will invariably say ‘no’, and that there are always other ways of protecting women, including interventions -- indirect abortions, if you will -- which inadvertently result in the deaths of unborn babies*. They tend to have the medical profession on their side on that one. 

It’s important to understand in this context that Britain’s 1967 abortion law doesn’t make abortion legal, but instead gives doctors a number of defences for situations where they believe it’s necessary to perform abortions. Treatment for ectopic pregnancies and so forth were never deemed offences under under the 1861 Offences Against the Person Act, so the 1967 act didn’t give doctors defences for dealing with such terrible situations; treatment for ectopic pregnancy isn’t classed as abortion in UK law and are counted separately from abortions.

Those who disagree will generally change the subject when asked to give examples of instances where abortion -- understood as direct targetting of unborn human beings -- is the only possible way of saving a woman's life.

Often they'll move the conversation to the issue of suicide. If, as in X, a mother threatens her own life, then it can be directly necessary to save her life. Leaving aside the fact that in X abortion manifestly wasn't necessary to protect X, such that it didn't pass its own test**, let's think about this.

Abortion and the risk of suicide

The Samaritans and the Irish Association of Suicidology advise that “suicide is never the result of a single factor or event”, and that “The reasons an individual takes their own life are manifold, and suicide should not be portrayed as the inevitable outcome of serious personal problems.”

These same guidelines recognise that "not all people who die by suicide have mental health problems at the time of death", but point out that the majority of those who kill themselves do, and Britain's Centre for Maternal and Child Enquiries said in its 2011 report that while suicide when pregnant is a relatively rare phenomenon, suicide in pregnancy or post-delivery tends to be linked to mental illness.

The evidence is pretty clear that there's no medical basis for presenting abortion as a medical solution to any mental health problem; it may not make things worse for women, but it is unlikely to make things better. Even Fintan O'Toole conceded this recently when he said::

"Last year, the Academy of Medical Royal Colleges in the UK commissioned a systematic study of global scientific evidence on this question. It found: 'The rates of mental health problems for women with an unwanted pregnancy were the same whether they had an abortion or gave birth.'"

It's not just Fintan who recognises that abortion doesn't help women's mental health. In 2011 the Royal College of Obstetricians and Gynaecologists issued the latest revision of their evidence-based guidelines on the care of women seeking induced abortions, stating that:

“Women with an unintended pregnancy should be informed that the evidence suggests that they are no more or less likely to suffer adverse psychological sequelae whether they have an abortion or continue with the pregnancy and have the baby... Women with an unintended pregnancy and a past history of mental health problems should be advised that they may experience further problems whether they choose to have an abortion or to continue with the pregnancy.” 

Given this it is, of course, rather surprising that the vast majority of abortions in Britain are on mental health grounds. 185,973 -- 98pc -- of Britain's abortions in 2011 were 'Ground C' abortions, that is, they were permitted because "the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman". It would seem that almost all of these were on mental health grounds, to judge by the previous year when 185,291 abortions -- again 98pc -- were Ground C abortions, with 99.96% of these reported as being performed because of a risk to the woman’s mental health.

With UK law saying that abortion on mental health grounds is permissible only when the risk of injury to mental health would be lower if an abortion were performed than otherwise, and with the medical evidence now recognised as showing that mental health problems are not reduced by abortion, it seems that such abortions in Britain are almost invariably performed in defiance of UK law.

Setting aside the Supreme Court’s application...

The expert group, listening to the ECtHR and looking at the X decision, made some interesting decisions. They seem, effectively, to have disregarded the X application, and paid heed only to the X test.

The preface gives a clue to why they did this, saying:

“The members of the group who are not doctors are not settling legal issues, the lawyers are not deciding medical controversies and the administrators are not adjudicating on the medical or legal questions.”

In this they recognised areas of competence, noting that medical matters are beyond the competence of legal professionals; this was in line with the ECtHR’s recognition that courts – even the Irish Supreme Court – are inappropriate fora for deciding medical controversies.

The group was adamant that abortion – in the context deemed permissible by the Supreme Court – should be considered a medical procedure, noting:

“Given the circumstances in which a right to a lawful termination of pregnancy would arise, i.e. when there is a real and substantial risk to the life of the woman which can only be averted by the termination of her pregnancy, this procedure would necessarily fall under the category of medical treatment.”

As such it envisaged any decisions that abortions should be necessary as having, by definition, to be made by medical professionals. The Supreme Court, in the X case, had received no medical evidence, relying instead on the evidence and opinions of a psychologist; from the point of view of the expert group, that’s not good enough.

The expert group, then, have recommended to the government that in a situation where a suicidal woman might seek an abortion, the decision as to whether or not it should be granted should be an exclusively medical one. Doctors, probably including at least one psychiatrist, would have to be able to swear that an abortion was granted because there was no other way of saving that woman’s life.

Enforcing the ‘Only’

As we’ve seen, abortion almost certainly wouldn’t help alleviate any suicidal ideation or other mental problems said woman might be suffering, such that granting it would probably be illegal even in Britain.

In Ireland, however, the bar would have to be set much higher; if the Constitution is to be respected, doctors would be barred from granting abortions when they see them as the best, or the most convenient, or the most humane solution. They’d only be allowed to grant them when they see them as the only solution.

As the expert group says:

“The State is entitled and, indeed, obliged to regulate and monitor the exercise of [the limited constitutional right to abortion] so as to ensure that the general constitutional prohibition on abortion is maintained.”

 As such, the expert group seems to envisage monitoring rather beyond what happens in Britain, saying:

“Any proposed system should be duly monitored. There is a need to keep records on the number of women who seek and who are given terminations and the medical reasons that gave rise to the treatment for clinical purposes. Statistics are also required to inform policy, as well as to ensure that the principles and requirements of the system are being upheld. The Review Panel system and its effectiveness should also be monitored. Finally, it is important to protect and suitably anonymise all records, to safeguard the privacy and identity of both patients and doctors.”

This, of course, is where it gets interesting. Monitoring in Britain is minimal, with doctors having to submit the most scanty of forms to explain why they believed abortions justified, their discretion being trusted. HSA4 forms, from which Britain’s abortion statistics are compiled, are sent to the Chief Medical Officer, are not required to give detailed justifications, instead merely requiring two doctors – except in emergencies – to certify their good faith opinion that the termination meets at least one and the same ground set out in the Act, given the information that they have about the woman’s circumstances. 

If there is evidence that a certifying doctor has not formed an opinion in good faith, then those performing the termination are not protected by the Act and may have potentially committed a criminal offence by terminating the pregnancy. The doctors involved may also be acting contrary to their professional duties.

HSA2 forms, which are required for Ground F and G abortions, requires doctors to certify that they were “of the opinion formed in good faith that it is/was necessary immediately to terminate the pregnancy”

The expert group, however, seem to think Irish doctors should be obliged to set forth the medical reasons that necessitated the treatment; what this might mean is not clear, but what is clear is that a mere box-ticking exercise would run contrary to the Constitution. 

This wouldn’t be unnecessary fussiness or prurience. It would simply be a case of the State acting in accord with its duty to vindicate and protect the rights of the unborn, as far as practicable. And what happens when the monitoring panel looks at a case where an abortion took place which the panel deems to be anything other than strictly necessary?

Well, as things stand, and as in Britain, abortion is a felony under the 1861 Offences Against the Person Act, for which a sentence of penal servitude for life can be imposed. Doctors can still be charged under this. The guidelines for filling out the HSA1 and HSA2 forms say:

“If there is evidence that a certifying doctor has not formed an opinion in good faith, then those performing the termination are not protected by the Act and may have potentially committed a criminal offence by terminating the pregnancy. The doctors involved may also be acting contrary to their professional duties.”

It seems to me that even with amendments, this principle could be upheld.

I think this would work. We legislate for X, but demand that decisions to abort be made by doctors, and doctors only, and with every single abortion – direct or indirect – to be scrutinised after the fact by a monitoring panel of medical practitioners. This wouldn’t happen so often that the medical profession in Ireland would be overwhelmed; if the British figures give us a real guideline on this, there’d only be one case a year where doctors would even have to consider whether a mother was in such danger of death that an abortion – as understood in the colloquial rather than strictly medical sense – would be the only possible way of saving the mother’s life. 

Doctors performing or authorising abortions should have to justify to the panel not merely what the risk was to the mother, but also why there was no other way of saving her life other than killing her child. 

And if the Constitution is to be taken seriously, the monitoring panel would be obliged, in cases where they believed doctors had performed abortions which were not clearly necessary, to have said doctors struck off and reported to the Director of Public Prosecutions. And as we’ve seen, it’s very hard to think of a situation where abortion would be necessary. It wasn’t necessary in the X case.

Would this guarantee that there’d never be abortions in Ireland? No, but just as abortion isn’t a magic wand, neither is the law magic. It would, however, guarantee that direct abortion would remain illegal.

_____________________________________________________________________________

* Yes, babies. Because that’s what the Medical Council guidelines say. As indeed the NHS in Britain tends to. Just like most expectant mothers, and other normal human beings.

** Finlay deemed the test to be passed in X because, 

"In my view, it is common sense that a threat of self-destruction such as is outlined in the evidence in this case, which the psychologist clearly believes to be a very real threat, cannot be monitored [in the sense in which a physical threat can] and that it is almost impossible to prevent self-destruction in a young girl in the situation in which this defendant is if she were to decide to carry out her threat of suicide."

 Justice Hederman, dissenting, thought this was nonsense. 

"If this young person without being pregnant had suicidal tendencies due to some other cause then nobody would doubt that the proper course would be to put her in such care and under such supervision as would counteract such tendency and do everything possible to prevent suicide. [...] This young girl clearly requires loving and sympathetic care and professional counselling and all the protection which the State agencies can provide or furnish."

The evidence considered by the Court showed Hederman to be right, and Finlay to be wrong, as it records the psychologist who dealt with X as saying under cross-examination that:

 "My recommendation would be she was not safe unless under supervision. I would have thought, given the state which I found her in, in-patent treatment would be essential. I don't think the parents can offer 24-hour supervision."

My italics, obviously. It 's worth noting that this evidence was never contested in the Supreme Court.

X would not be safe without in-patient treatment, said the only person who gave direct testimony as to her mental state; even though X's parents couldn't protect her, she would be safe under professional supervision. The psychologist's judgement on this was not contested. The court was aware that abortion was clearly not the only way of resolving this. There was another option.

It's just as well that the ECtHR reckons it inappropriate for constitutional courts to make medical decisions, given that Finlay's decision didn't comply with the test that he lay down. The Oireachtas has the job now of legislating to comply with that test. It should try to avoid Finlay's mistake.

Vigil for Life? I'm going with 7,000

If imitation is the sincerest form of flattery, I should probably be feeling very proud of myself at the moment.

You remember how a couple of months back I strained my eyes to exhaustion by counting the marchers at the ‘March For Choice’, reaching a total of 850 or so marchers, which tied in pretty neatly with my initial estimate, a second estimate based on how much space Roman armies used to take up – because, after all, counting crowds is part of my training – and what people on the march had said about how much space the march took up, and the figures first reported by the Guards and the Irish Times, before they were pressurised into changing their numbers?

Well, somebody’s tried a similar kind of thing with Tuesday’s ‘Vigil for Life’, one Andrew Flood, writing on the Workers Solidarity Movement website, having valiantly taken up the gauntlet to count Tuesday's numbers, and, after dotting away on a 19-second video, having counted 1029 people at the vigil.

Andrew says he’s using the same method as me, but he’s not, and that should be obvious; I used three methods, none of which was without problems but all of which gave results in the same range, and for one of them I relied on information given by pro-choice friends who were on the march.

There is a superficial similarity between Andrew’s method and one of mine, as both of us took screenshots from a video and dotted heads as we counted them, but they’re substantively different. It’s ludicrous for him – or anyone else – to say we used the same system.

I counted based on video footage taken close up in daylight from a single inspection point near the end of the march, this being pretty close to best practice when counting moving crowds, whereas Andrew counted based on low-resolution video footage taken from a distance, at night, with such foreshortening that the rear two thirds of the vigil are basically indistinguishable.

This, you can be sure, is generally not how stationary crowds are counted. Still, I think Andrew deserves some credit for trying. It’s tedious work, and isn’t easy on the auld eyes.

1029? Bumped up generously to 2000? Sounds possible...

“Now obviously,” he says, “this is a broad estimate... it’s certainly not the 10,000 claimed by Youth Defence.  Not the 8,000 claimed by the Pro-Life Campaign and faithfully reported by RTE after some pressure.  It’s not even the 4,000 first reported by RTE.  The initial Garda estimate of 2,000 sounds more reasonable, allowing for a bit of coming and going and a few people being out of shot. Sprinkle on some wishful thinking and the fact that people had been visibly spread out to take up lots of space and you might get a reasonable Garda going for 2,000.”

On first reading this I was quite impressed. After knackering myself counting a crowd close-up in daylight, there was no way I’d have tried to do the same thing with a swooping long-range camera in the dark. Indeed, I’d looked at that same 19-second video before Andrew had done so, and assumed it wouldn’t be possible to count that crowd. It wouldn’t, I thought, even have been possible to estimate.

I’d seen somebody claiming there were only 300 there; I’d also heard that Youth Defence were claiming 10,000, which struck me as daft. 2,000 sounded quite plausible the way these things go. And, in truth, that’d not be a bad number, for the afternoon of a cold weekday, and everyone still at work. Still, I thought, I really wish people wouldn’t bump up their own numbers. 10,000 seemed almost as absurd as Ivana Bacik’s fantasy 5,000 at her March for Choice. Should’t we at least try to be honest?

And yet...

And then, after a few moments, I watched the 19-second video again, with the screen enlarged, freeze-framing as I went. I didn’t keep the stills, as with the one I’d worked from at the start of October. I just paused, and looked, and showed them to a (bored) friend, and very quickly concluded that this couldn’t be done.

Yes, I could see Andrew has taken four screenshots – as compared to the twenty I used for the ‘March for Choice’ – and dotted away, and done so ingeniously, applying red dots to people holding candles and green ones to people without them, but looking at this critically, I just didn’t think this was possible.

It was dark. The camera moves. It’s shot from a distance. There’s serious foreshortening with the crowd. The video’s low resolution.

Buses...

Still, it seemed an honest attempt at this, and I thought credit was due to him for trying. I only started to get uneasy when I heard somebody saying that about 2,000 people had come up to the vigil from around the country on buses they’d hired. Was that credible?

Well, a friend said that Youth Defence and the Pro Life Campaign people had told him that their local chapters had organised buses for 1,400 and 1,200 people respectively. That’d give 2,600 who’d come up in buses from the country, leaving aside people who’d made their own way there and those from Dublin and roundabout. Allowing for some double-counting, 2,000 sounded plausible.

What’s more, other data seemed to support this, as I heard of one person having personally arranged four buses from Galway, and of two buses having come from Monaghan, which has a lower population than all bar four Irish counties. More populous counties, you might think, would send more. Still, modern coaches take 55 people, while minibuses take 15-20, so even if we low-balled our figures, and assumed a coach and a small minibus from each county outside Dublin, that’d give us 2,170 people.

2,170 people excluding those who’d come under their own steam, and people from Dublin itself. Is a figure lower than 3,000 even remotely credible?

Common sense seemed to give serious grounds for doubting Andrew’s numbers anyway, so I decided to think about these figures again.

Crowd-counting 101...

The basic rule for crowd estimation is a straightforward equation based on space and density; it gets more complicated with moving crowds like ‘March for Choice’, but when a crowd’s standing still, as at a peaceful vigil, it’s pretty simple.

“There are two ways of estimating numbers,” says Nigel Stanley, head of TUC campaigns, on the BBC website, “One is drawn from having a rough idea in advance of the capacity of streets in the area where people gathered for the start of the march.”

To work this out you need precise maps with street measurements, multiplying width by length to get the area, which you’ll remember from school. Then you apply a rule of thumb that three people per square metre is comfortable and four is like a rock concert – the rule can vary between cultures, because Americans, for instance, tend to need lots of personal space, but this works well for British and Irish people. It’s important to keep in mind that density tends not to be uniform, and that crowds tend to be more compressed in some places, less compressed in others.

When dealing with marches you have to get stuck in and actually count samples and work out how long it takes people to pass certain inspection points – two or more for preference, but you do what you have to –  but with a stationary crowd you can and generally should just work with area and density.

So the professional crowd counters say, anyway, and a variant of that is my normal practice when dealing with battle accounts; it’s hard to read a field unless you’ve a good idea how many men fit on it.

Figuring out the perimeter...

So, how much space did the Vigil for Life take up? Well, if you’d selectively read the Twitter feed at the time, you could be forgiven for thinking there was hardly anybody there at all. 

“Looks like crowd at #vigil4life tiny fraction of crowd at any of the #savita protests despite national well funded mobilisation by bigots,” said @WSMIreland, adding “tricky to estimated size of #vigil4life as view obscured by expensive giant video screen & fancy PA but maybe a little over 300.”

“Tiny numbers at #vigil4life somewhat magnified by photos not revealing entire centre street is speakers platform,” it continued, proclaiming, “Pictures from scene suggest #vigil4life in hundreds @drivetimerte claims of 1000’s nuts,” and retweeting “They’re pipping cheers through speakers!! I'm at #vigil4life this is nuts. About 4-500 tops”.

Workers Solidarity Movement, then, seemed pretty sure at the time that there were only a few hundred there. Perhaps as few as 300. Certainly not the 1029 Andrew himself would subsequently count, let alone the 2,000 he was eventually to hazard, or the 5,000 Nell McCafferty – no pro-lifer she! – estimated on Facebook after having a gander on the spot.

@WSMIreland posted a few interesting pictures along the way. This one, taken from the Stephen’s Green end of Kildare Street is particularly good, as it shows the front end of the vigil, spilling forward from Molesworth Street across Kildare Street to the front gates of Leinster House.  

The WSMIreland caption to it is a bit baffling, though, decreeing “Pic showing just how small #vigil4life is compared to any for the #savita vigils held on Kildare st outside Dail.”

Well, it would show that if the Vigil had been along Kildare Street, but it wasn’t: it faced the Oireachtas buildings, rather than, say, the National Library and the National Museum, though it seems to have rather sprawled a bit on Kildare Street, if this rather colourful image is accurate. It’s almost as though WSM Ireland wanted to mislead people. Or just didn’t have a handle on what was going on. What’s your money on? Spectacular incompetence or egregious dishonesty? Either way, it doesn’t do a lot for their credibility on this issue.

I like this one too, which shows that the crowd stretched back to the junction of Molesworth Street and South Frederick Street. That’s useful. 

The Google Streetview version helps put things in perspective

A shame about the tweet linking to it saying “Picture showing spread out #vigil4life rally not even half filling Molesworth St. despite massive spending by bigots,” but there you have it.

I’m not quite sure why a determination to protect human life, and an unwillingness to have done unto other human beings what we would not like to have been done unto us – basic Golden Rule stuff, when you get down to it –  constitutes bigotry, but let’s leave that for now.

Well, now we have our crowd dimensions, if it not its density. The crowd on Molesworth Street stretched from wall to wall, taking up the footpaths rather than just the road, and as I’ve said, it went from the junction of South Frederick Street to the gates of Leinster House. Let’s pull it up on Google Maps, shall we?

And if we have the space, let's try for density...

I’m going to disregard the overspill sections on Kildare Street, because I have little idea how far the crowd spilled to left and right, and less idea how dense the crowd would have been where it wasn’t penned in my the edges of Molesworth Street. It’s best, I think, to treat it as a straightforward oblong.

Well, looking at the scale, and measuring it out like we used to do in geography class, it seems that the vigil must have taken up a space about 20 metres wide and 130 metres long, which – leaving aside the odd obstacle such as vans and screens – gives us 2,600 square metres. Now, according to the standard rule of thumb which sees three people comfortably together per square metre, this would give us 7,800 people at the vigil, or it would do if there were no obstacles.

If everybody was jammed together like at a gig, well, then we’d get 10,400, which supports Youth Defence’s claims, but I think we all know it wasn’t that crowded, so let’s stay with 7,800 tops, assuming a consistently comfortable crowd density.

But obviously we need to lower that because the area wasn’t entirely occupied by the crowd; looking at the aforementioned 19-second video, and a rather longer one made by Youth Defence, it looks as though they shared that 130 x 20 metre zone with a big screen, a speaking platform, and two or three vans.

None of these obstacles was all that big: if you look five seconds into the 19-second video, you’ll see that the platform can’t have been much more than 6 metres on any side, despite @WSMIreland’s claim that it took up the “entire centre street”. To be honest, looking at it in the Youth Defence video, I doubt any of its sides were more than 4 metres along, but let’s go mad and say that was 6 metres on each side, and go with, I dunno, 6 metres by four metres for the screen thing towards the back, and 5 metres by 2 metres for each of three vans. All told, that means 80 square metres need to be knocked off our total. 

2,520 square metres with three people per square metre at a consistently comfortable density, gives us 7,560. If the crowd had been packed like in a concert, that rises to 10,080 people, which ties in with Youth Defence’s claims, but judging by all the photos I’ve seen, and video footage too, I’m no more convinced by that now than I was on Tuesday; 10,000 has nice rhetorical value, but I think that figure’s wishful thinking more than anything.  7,560 sounds a lot more plausible to me, though it assumes an evenly packed crowd. 

Generally you should allow a 20pc margin of error on these things, according to the aforementioned Nigel Stanley, which suggests that there could have been anywhere between 6,000 and 9,000 people at the vigil.  Watson and Yip, however, reckon that if you’re confident on crowd density and area, you can apply a 10pc margin of error, which means somewhere between 6,804 and 8,316.

RTE’s eventual “several thousand” starts to sound reasonable when put that way, and the figure of 8,000, claimed by the Pro Life Campaign since Tuesday is certainly very possible. It’s not far off the mark, at any rate, and may in fact have been a conservative estimate.

6,000 sounds like a plausible minimum figure, then, but on balance, I’d go with 7,000, allowing that it might well have been rather more than that.

Foreshortening and density...

So how on earth can Andrew have gone so wrong, assuming he did so, which even the bus figures suggest he must have done?

An obvious starting point is that Andrew expected the numbers there to be low to begin with, as can be seen at how at 16:48 and 17:00 he’d retweeted the WSMIreland saying “Looks like crowd at #vigil4life tiny fraction of crowd at any of the #savita protests despite national well funded mobilisation by bigots” and  “tricky to estimated size of #vigil4life as view obscured by expensive giant video screen & fancy PA but maybe a little over 300 #savita”, before opining that the vigil’s organisers would have got a better turnout if they’d paid random people €50 each to attend.

Less than an hour or so later, in a thread which began with somebody else claiming that only about 300 were there, he said that pictures clearly showed that the crowd didn’t go halfway down Molesworth Street and were very spread out, with there being hundreds there, not thousands. At 19:33 he repeated the claim that Molesworth Street had been less than half full. Of course, even leaving aside the issue of density, it’s irrefutable that the crowd went as far as South Frederick Street, which is more than halfway down Molesworth Street.

Still, regardless of Andrew’s predisposition to number the vigil crowd in the hundreds, the video he worked from is of very poor quality, as I’ve said. It’s really hard to count from that, and when you contrast the video with the Google overhead shot, you start to see a massive problem. Look at the van which is on the border of his third and fourth panel. That van, which is three quarters of the way back in Andrew’s montage, was only a third of the way down the crowd-occupied portion of the street. I’ve marked its location on the overhead shot, locating its position with reference to buildings identifiable beside it. 

The video suffers from a terrible level of foreshortening, such that it’s about as problematic as a source can be, and appears to have led Andrew to say “really there is no way at all that 6,000 peopel were tucked away behind the white van.” 

Tucked away? Two thirds of the vigil’s length was behind that van! But then, Andrew doesn’t seem to have had any concept of that, claiming as he had done twice that evening that the vigil took up less than half of Molesworth Street, rather than about 60pc of it as well as a sizeable area on Kildare Street. 

Andrew’s count has 558 people in the three frames ahead of the van, and 471 in the frame behind it. Or, putting it another way, he has 558 people in the front third of the vigil, and 471 in the central and rear two thirds combined. Now that doesn’t sound very likely, does it?

Of course, it is just about conceivable that this could have happened, and if you work from a single source, as Andrew appears to have done, it can happen that you can get desperately misled into believing such highly improbable things. Single-source journalism, as the Irish Times seem to be discovering nowadays, is a mug’s game. The thing is, though, we don’t need to work from a single source. Here, for instance, is a still showing the back of the crowd, taken from that slightly longer Youth Defence video I mentioned earlier.

It’s a far better resolution than the video Andrew used, and gets in a lot closer, and shows us that the crowd was pretty dense at the back where Molesworth Street reaches South Frederick Street. Not crushed together like at the front rows at Slane, mind, but tightly packed for all that. Not surprising, really, given how cold it must have been.

Ah, but was it all like that? Perhaps it was dense at the very back, and maybe at the front, but nowhere else? Well, you know that van that Andrew used as a marker, the one that’s a third of the way back? Well, here’s a shot of the area around that.

We’re dealing with a pretty tight crowd, all told, pushed up right to the sides of the van. In fact, there seem to be about thirty people next to the van occupying as much space as the van. Again, it’s hard to count, given the darkness, but if we enlarge and squint and drop van-sized counting frames into position, it seems to back up the overall impression that this crowd is pretty compact, with roughly three people to every square metre. So far I’m not seeing anything to suggest that this was a sparse crowd.

It has to be said that Andrew, in his count, shows a screenshot where there’s what looks like a patch of spare ground. He presents this as evidence that the crowd was scattered. You can see it, about five seconds in. Watch the video. I could be very wrong, but I’m pretty sure this is the enormous “speakers’ platform” we keep hearing so much about. Yes, I know, not that enormous then; indeed, if you look at it on Andrew’s stitched together four-frame shot, you’ll see that it’s not that much wider than the speaker on it is tall!

In any case, it seems to be the only decent-sized gap in the crowd, and certainly shouldn’t be misrepresented as evidence that people at the vigil were standing metres apart.

Better to light a candle than curse the darkness...

Anyway, these last couple of screenshots from the video with higher resolution don’t merely give us an indication that the crowd density was high throughout. They also reveal that there were far more people at the vigil without candles than there were with candles. Seriously, try counting them. Take other screenshots from the Youth Defence video if you like, and if you can find good enough shots. You’ll find the same pattern across the vigil.

This is especially interesting, because Andrew’s count suggests that there were slightly more than twice as many people with candles as without. His figures give us 323 people without candles, as opposed to 706 with them. But it’s very clear from the better quality video footage that this ratio could hardly be more wrong.

Indeed, on the evening of the vigil, it seemed that @WSMIreland really didn’t grasp just how many people lacked candles, as can be seen in the caption to this picture saying “pic showing how #vigil4life organises have spread out crowd to make numbers appear greater at ground level”.

Leaving aside how poor quality this shot is, those dark patches clearly aren’t empty spaces. They’re people without candles, or people whose candles are blocked from the camera by their bodies.

That Andrew’s figures are hopelessly wrong can be seen by looking at that shot of the very end of the vigil. Andrew says he counted 167 people behind the screen, though having enlarged his pictures I can’t even see half that many dots. Do you reckon you can do better? On the clearer picture, I mean, not in Andrew’s foreshortened thing. Me, I gave up after 300, thinking that life is too short for this sort of thing.

That said, given that life is too short anyway, I’m glad more than 6,000 people took to Dublin’s dark streets on a cold weekday evening to say that we shouldn’t be cutting it short for others.

I'm going to let Andrew wrap it up, given he inspired this post. Very sensibly, he includes an all-important caveat in his post:

“A final word.  I actually don’t think the numbers mobilised have any importance as to whether women should have access to abortion in this country.  My position is simple, if one women wants an abortion she should be able to access it regardless of how large or small a majority of people agree with her choice. That is what the pro-choice position means - the choice is for each women and not anyone else to make.  However the political reality is that the arguments about numbers are going to be used to scare cowardly politicians so I’m not inclined to allow the crazy no abortion whatsoever forces that represent no more than 15% of the population these days away with anything.”

I half-agree with him. I don’t agree with his conclusions, or with his belief that only 15pc of the population are opposed to abortion, but I do agree with this: this isn’t a matter of numbers. Either we believe human life matters, and that without a right to life we can’t have any other rights, and that we shouldn’t deny others the opportunities we’ve had ourselves, or we don’t. Ultimately it comes down to that.

Like the girls said.

Assumptions, Omissions, and Definitions

Twitter can be trying at the best of times, but Irish Twitter has been especially so of late, most notably in the aftermath of Savita Halappanavar’s death and in connection with the government’s expert group report on A, B, and C v Ireland. 

The constant linking of these issues, based on the unproven assumption that Savita died because she was denied a termination of pregnancy, has been particularly frustrating. As Kitty Holland, the journalist who broke this story, has admitted, it has not been established that Savita’s situation would have been helped in any respect by a pre-term delivery.

Indeed, given how Savita’s husband Praveen describes how Savita requested a termination, it’s far from certain that such a termination would have been legal even in Britain. 

Contrary to inaccurate reports in the Irish Times, it is simply not true that British doctors are “legally able to carry out abortions until the 24th week of a pregnancy for all reasons, not just medical”. Rather, the 1861 Offences Against the Person Act remains in force, with the 1967 Abortion Act providing a limited number of defences for doctors who carry out abortions. 

It is not clear that Savita’s situation would have been covered by these defences, as we simply do not know whether termination would have been necessary to prevent grave permanent damage to Savita's health, or indeed whether it would have been more risky for Savita to have continued with the pregnancy than to have ended it. The facts of this case just aren't known.

That’s not to say that a termination wouldn’t have been granted in Britain were someone in Savita’s situation to ask for one, merely that such a termination might not have been legal. 

It would, in any case, have been up to the doctors present to decide, as even in Britain requesting a procedure does not grant a right to it.

Bulverism ahoy!

Annoying too has been the absurd Bulverism that’s gone on. ‘Bulverism’ was C.S. Lewis’s term for the tendency of people to dismiss others' arguments by saying something along the lines of ‘Oh, you only believe that because you’re a Communist/Environmentalist/whatever,’and to assume that such dismissals constitute refutations. 

Clearly related to the fifth and thirty-second of Schopenhauer’s 38 Ways to Win an Argument, this is a variety of ad hominem wholly devoid of intellectual credibility. The most common variety of this at the moment seems to be one which asserts that people only hold their beliefs about protecting life or helping the poor or protesting against the death penalty or whatever because they’re Catholic fundamentalists or something similarly oxymoronic*.

Generally speaking, Catholics tend to argue for moral issues from a natural law standpoint, rooted in philosophy and reason without reference to revelation, rather than from a faith-based one. It’s almost invariably their opponents who introduce religion into discussions.

It’s particularly bizarre to see the strain of Bulverism that gets deployed when members of Ireland’s Iona Institute are on telly. People mutter en masse about how Breda O’Brien or Patricia Casey only believe what they do because they are members of the Iona Institute and are only on telly because they are members of the Iona Institute.

Now. A moment's serious though should banish both of these objections. Firstly, it’s surely a bit more likely that people are members of the Iona Institute because of what they believe than they have their beliefs because of their membership, isn’t it? I think it’s pretty easy to establish that, say, Patricia Casey had opinions before the Iona Institute was founded in 2007. And I’m pretty sure that Breda O’Brien, say, was appearing on television long before the Iona Institute was set up, given that she’s been a columnist for the Irish Times for more than a decade, and was one with the Sunday Business Post before that.

If people have issues with what Iona Institute members or patrons say, then they should tackle that, because we all have an interest in honesty and accuracy; I’m glad that some people do adopt such a grown-up approach on occasion, questioning statistics and so forth, but sadly this seems all too rare. 

Listening to all the voices…

I think part of the problem may be due to a general lack of awareness about broadcasters’ obligations towards balance, such that they can't just put up a panel of sheep to bleat in unison, but have to find people who can and will express views that challenge fashionable orthodoxies. They can be desperate for people who'll do that.

So here’s the question: if you’re a broadcaster, and you’re in need of people who are willing and able to argue that, say, it’s best, all things being equal, for children to be raised by a mother and a father, or why human life should be protected at all stages, no matter how vulnerable, who are you going to call?

Believe it or not, lots of people hold such views, as surveys and referendum results constantly show, but habitually keep their heads down because they get shouted down if they voice them. A friend of mine is of the view that Irish politics tends to be dominated by conservative voices, but the Irish media – and social media – tend to be dominated by liberal ones, and I think she has a point. If we want to have a healthy society, we need to be willing to listen to all the voices out there, even if some of them challenge our preconceptions and make us uncomfortable. 

And let’s not go down the road of claiming that people shouldn’t be on television because they’re not elected – as I've seen people saying often over the last fortnight – unless you want the only people on television to be TDs, Senators, county councillors, and the President. Of course, people tend only to make such claims about unelected people they disagree with. Unelected ones they agree with are fine. 

(It's a bit like the phenomenon where people say religion should never have an influence on politics, but tend not to be bothered about how religion motivated the politics of William Wilberforce, Sophie Scholl, Martin Luther King, Oscar Romero, and Jerzy Popiełuszko.)

Yes, I know pro-lifers are guilty of nonsense too – this headline infuriated me when it was brought to my attention, as hysteria helps nobody and it annoys me enormously when facts are strained to fit narratives, but it seems to me – and I follow a pretty diverse cohort of people – that at the moment it’s certainly the pro-choicers who are by far the more guilty party. 

A second criterion…

One thing that’s amazed me about the whole debate is how people on both sides argue about legislating for the Supreme Court’s 1992 ‘X’ decision without engaging with the fact that the Supreme Court laid down two requirements for abortion to be legal in Ireland. Pro-choicers talk about how the Court ruled that the Constitution allows for abortion when there is a real and substantial risk to a mother’s life, while pro-lifers contest the validity of the judgement and such things. Neither group seems to be engaging with what the Court said, and it was a huge relief for me to see yesterday that the Expert Group's report on A, B, and C v Ireland had clearly recognised that both criteria need to be taken into account.

The Expert Group’s report notes that in 1992, 

“A majority of the members of the Supreme Court held that if it were established as a matter of probability, that there was a real and substantial risk to the life, as distinct from the health, of the mother and that this real and substantial risk could only be averted by the termination of her pregnancy, such a termination was lawful.”

There are two requirements here for abortion to be legal in Ireland. The first is that there should be – as a matter of probability – a real and substantial risk to a mother’s life. The second – and this is the one that people tend not to acknowledge – is that termination of pregnancy should be the only way of averting this risk.

The only way. This means that if there’s any another conceivable way of averting risk, abortion is not permitted under the Constitution. Here’s the crucial passage from Chief Justice Finlay’s 1992 decision on X:

"I therefore conclude that the proper test to be applied is that if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible, having regard to the true interpretation of Article 40.3.3˚ of the Constitution.”

Dancing round the Constitution…

Now, plenty of people seem to think that Ireland’s politicians have sat on their hands over this issue for the last twenty years, though as the Expert Group’s report shows, and as Noel Whelan wrote recently in the Irish Times, “The pattern could be more correctly described as spurts of intense activity followed by years of acute sluggishness.”

The fact is that the Supreme Court’s decision doesn’t give politicians a lot of leeway for legislation, as legislation would probably be unconstitutional if it allowed for abortion in cases where a mother’s life is endangered but did not rule out abortion in cases where there might conceivably be other ways of saving a mother’s life.

Given the constraints of the Constitution, I don’t envy the Government working out how to comply with the European Court of Human Rights’ wish that they realise an accessible and effective procedure to enable pregnant women to establish whether they qualify for a lawful termination of pregnancy in accordance with Irish law. 

That said, I think the Expert Group’s advice is a reasonable start, though whether the Government will pick from the options the group presents, or come up with something else, remains to be seen. 

It’s interesting that the report implicitly disagrees with the Supreme Court’s willingness in 1992 to accept the recommendations of a clinical psychologist as evidence that a patient could be suicidal, insisting that the opinion of psychiatrists is imperative in such matters. This makes sense, as if under certain conditions abortion is to be considered a medical procedure, then it is only fitting that it should be for medical practicioners to decide whether it is necessary or not.

My inexpert feeling about this is that as proposed, this could be okay, and it's conceivable that the government could come up with a mechanism that prioritises the lives of women while also vindicating the lives of unborn human beings. 

To make sure this works effectively within the Constitution, however, I think they'll need to make sure the review procedures for decisions to terminate should be as clear as for decisions to refuse terminations, and I think it'd be wise to to ensure that legislation precludes doctors who have any financial interest in abortions being granted from having a say in these decisions. 

That might sound cynical, but as February's revelations about gender-based abortions in British abortion clinics showed, we cannot assume that doctors will always be paragons of integrity. We don't assume this about politicians, policemen, priests, or plumbers, after all. Or journalists.

Wordplay? Or just the recognition that some things aren’t simple?

Of course, making matters messier is the fact that terminology is so tricky in these matters. Pro-choicers sometimes accuse pro-lifers of playing word games on these things, and insist that abortion is clearly defined in the dictionary and as a medical term, but the fact is that language changes and words vary in meaning. Dictionaries merely describe what words mean at a given time, and often in a given place and to a given people. These things are not fixed.

Currently the Oxford English Dictionary defines abortion as follows:

“The expulsion or removal from the womb of a developing embryo or fetus, spec.(Med.) in the period before it is capable of independent survival, occurring as a result either of natural causes (more fully spontaneous abortion) or of a deliberate act (more fully induced abortion); the early or premature termination of pregnancy with loss of the fetus; an instance of this. 

In more general use the unmodified word generally refers to induced abortion, whether caused by drugs or performed surgically, and the term miscarriage is used for spontaneous abortion.”

Does this settle things? Well, maybe, though by the primary definition it seems to suggest that it’s nonsense to speak of abortion being illegal; if it’s a naturally-occurring process, the law’s no more capable of preventing it than it is of prohibiting avalanches. It’s striking that this 2009 definition doesn’t speak of abortion of something which is done with the intention of destroying the child in utero, but merely as something that leads to the loss of the child. It’s very general. 

But here’s the thing. In 1989, the OED defined abortion rather differently:

“The act of giving untimely birth to offspring, premature delivery, miscarriage; the procuring of premature delivery so as to destroy offspring. (In Med. 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.)”

So, apparently in 1989, there was no such thing, from a medical viewpoint, of abortion from the sixth month of pregnancy on; any termination of a child in the womb after that point wasn’t abortion. No, I have no idea what it was. Also, apparently,in non-medical usage the word ‘abortion’could be used in 1989 for either natural miscarriage or premature delivery – in which case the child might live! 

And, of course, in 1989 the OED recognised that abortion could refer to the intentional destruction of preborn offspring. This definition seems to have disappeared. Nowadays the OED doesn’t acknowledge that the purpose of what it calls ‘induced abortion’ can be – and of course often is – to destroy an unborn child. It now omits intention entirely, focusing solely on effect.

Confused? You should be. Words change, and dictionaries change with them. The word ‘abortion’, after all, is derived from the Latin for‘miscarriage’, so it’s hardly surprising that the terms should be confused. It first appears in English, for what it’s worth, in a 1537 translation of Erasmus, which says:

“To the phisicians craf he oweth his lyfe, ye whiche as yet hath nat receiued life, whyle thrugh it abortions be prohibeted.”

Abortions were prohibited in the physicians’ craft in the early sixteenth century, so. Presumably that didn’t mean that natural miscarriages were illegal. Not that that gets us very far. What about nowadays?

Hardly surprising that the Pro-Life Campaign isn't totally opposed to abortion...

The OED isn't a medical dictionary, of course, and so it's worth taking a look at Stedman's medical dictionary, which describes abortion as follows:

"Expulsion from the uterus of an embryo or fetus before viability (20 weeks' gestation [18 weeks after fertilization] or fetal weight less than 500 g). A distinction made between abortion and premature birth is that premature infants are those born after the stage of viability but before 37 weeks' gestation. Abortion may be either spontaneous (occurring from natural causes) or induced (artificially or therapeutically)."

Medically, then, it seems that the natural expulsion of infants from the womb is abortion, assuming they're below a certain age or weight, but the deliberate destruction of a human being within the womb is not abortion as long as the child is at least twenty weeks old.  

But, of course, English dictionaries – medical or otherwise – are descriptive things, not prescriptive ones; they tell us how people use words, not how people should use words, and the reality is that medical views on these things differ.

It’s well worth reading the 2000 report from the All Party Oireachtas Committee on Abortion, which recognised that the Ireland's Pro-Life Campaign isn't entirely opposed to abortion but is, rather, opposed to abortions in the sense in which term is colloquially used. Page 19 onwards shows just how unsatisfactory our terminology is on this issue, as the Committee reports:

• The then president of the Medical Council saying that abortion is not mentioned in Medical Council guidelines as it is, in practice, a lay term, though it has a technical medical meaning which relates to any termination of pregnancy, whether spontaneously or induced, prior to about fourteen weeks of the pregnancy.
• The then Master of the National Maternity Hospital saying that in the medical profession and in the clinical textbooks abortion has always been described as a pregnancy that is lost in the first trimester of pregnancy, which is up to fourteen weeks.
• The then Master of the Coombe Women’s hospital saying that the medical term ‘abortion’ means the premature ending of a pregnancy at any point before the foetus or baby is viable.
• The then Chairman of the Institute of Obstetricians and Gynaecologists saying that medical treatments to save mothers’ lives are not generally referred to within the medical profession as abortions, even if unborn children should die as the result of such interventions; the terms ‘legal abortion’ and 'procured abortion', he said, refer specifically to situations where the intention is to take the life of the unborn.
• A consultant obstetrician gynaecologist recognising semantic change, ‘abortion’ having come to mean in both medical and lay usage the destruction of an embryo or foetus, and pointing out that the term is nowadays mostly used to mean the deliberate destruction of unborn human beings.

Even the euphemistic phrase ‘termination of pregnancy’ was acknowledged by the Committee as being ambiguous, as it was pointed out to it a pregnancy can be terminated by going into labour, every pregnancy eventually being terminated.

Anybody who thinks this is simple is kidding themselves. The Expert Group has presented its report to the Government, and now the Oireachtas has the job of coming up with a legally-supported mechanism that will fulfil the needs of the Constitution without going beyond the Constitution, and which will somehow make sense of the fact that doctors, lawyers, and laypeople can’t actually agree on what the word ‘abortion’ means.

Good luck with that.
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* True. Fundamentalism is, in its broadest sense, a Protestant movement that took its name from a series of books called The Fundamentals, which opposed liberal trends within Protestantism. At the heart of fundamentalism is the principle that the Bible is not merely inspired, but is inerrant, and is inerrant at the level of the very words used by the original Biblical authors, which pretty much demands a literal reading of Scripture.

These attitudes have spread beyond Protestantism, such that there are, of course, fundementalist Muslims. However, they are completely contrary to Catholicism, which has historically sought to read the Bible in a nuanced and layered way. No, really.