The Eighth Amendment: A nation divided once again

The Eighth Amendment: A nation divided once again View Gallery

The two implacably opposed sides are preparing for a long war of attrition

As 30,000 people took to the streets to demonstrate last weekend, many must have wondered at the now ingrained familiarity of abortion protests; the marches for repeal of the Eighth Amendment, and the candlelit vigils by those who want to preserve the status quo.

The pro-choice side is hopeful that change is coming, as the issue inexorably moves up the political agenda. Meanwhile, opponents of abortion rights fear that the days of Ireland’s strict abortion laws may be coming to an end.

Momentum is clearly building. Last week, six TDs from the Anti Austerity Alliance-People Before Profit (AAA-PBP) group wore ‘Repeal’ shirts in the Dáil. They have already moved a bill for a referendum to repeal the Eighth Amendment. The Citizens’ Convention on abortion will meet for the first time this month.

As far as pro-life group Youth Defence is concerned, Repeal the Eighth is just “an empty slogan being used to mask the fact that abortion campaigners want to legalise the killing of pre-born babies”.
Last Saturday, Youth Defence launched a video entitled #RepealKills. Drawing comparisons with Nazi Germany’s Final Solution, the clip had garnered more than 200,000 views on Facebook by Wednesday.

Bills aimed at allowing abortion in cases of fatal foetal abnormalities have already been defeated in the Dáil, with the attorney general insisting that the proposed legislation would conflict with the constitutional protections of the Eighth Amendment, which is the foundation for Ireland’s abortion laws.

The Eighth Amendment was inserted into the Constitution in 1983, and guarantees the equal right to life of the unborn and the mother.

Various doctors and others have expressed concern that the existing legislation only allows doctors to intervene and provide care that could terminate a pregnancy if there is a threat to a woman’s life, as distinct from a threat to her health.

Former health minister Leo Varadkar said the constitutional restrictions on abortion were too “restrictive” and had a “chilling effect” on doctors.

“Speaking as minister for health, and also as a medical doctor, and knowing all that I do now, it is my considered view that the Eighth Amendment is too restrictive,” he told the Dáil during his time as minister for health.

“While it protects the right to life of the mother, it has no regard for her long-term health. If a stroke, heart attack or epileptic seizure happens, perhaps resulting in permanent disability as a result, then that is acceptable under our laws. I don’t think that’s right.”

The middle ground

Successive polls show strong public support for Varadkar’s position. The public clearly want change. But how much change?

Varadkar also said he did not “support abortion on request or on demand”. Does that reflect the consensus?

Does Ireland want a slightly less restrictive regime, a liberal abortion regime – or something in between?

In July, an Irish Times/Ipsos MRBI poll found that 67 per cent of respondents support repeal of the Eighth Amendment, to allow for abortion in cases of rape or fatal foetal abnormality.

In March, a Red C poll commissioned by Amnesty International Ireland found that 38 per cent favoured abortion to be made available as a woman chooses.

However, the people who will ultimately decide this are not those who are protesting on either side. All the protesters made up their minds long ago. The change will be determined by the so-called middle ground.

If Ireland proceeds to try to draw up guidelines, or new legislation to facilitate greater access to abortion, the guidelines should be informed by accurate medical and scientific facts. Issues likely to emerge as key, or decisive, factors include the science around foetal development and foetal pain, abortion and claims around potential psychological risks, fatal foetal abnormalities and concerns about the impact an easing of restrictions might have on those with less serious disabilities.

Dismal outcomes

At present, Ireland, the North, Andorra and Malta have the most restrictive abortion laws in Europe. Terminations are only allowed in Ireland if there is a threat to a woman’s life.

In most of Europe, abortion is allowed without restriction up to between ten and 14 weeks of a pregnancy. However, many countries have later limits, while others make exceptions in cases of foetal abnormalities and rape.

In England, pregnancies can be aborted up to 24 weeks’ gestation.

Abortion statistics for 2015 published by Britain’s Department of Health show the vast majority (92 per cent) of abortions in England and Wales were performed under 13 weeks’ gestation. Some 80 per cent were performed at under ten weeks’ gestation.

Proponents of abortion rights talk about zygotes, embryos and foetuses. Opponents of abortion rights talk about unborn babies.

When life begins is at the crux of the controversy over abortion. When does an embryo or foetus become a person? At fertilisation, at birth, or somewhere in between?

The Catholic Church states that the embryo must be treated as a person from conception and so do many others who oppose abortion.

The counter-argument is that this point merely marks the beginning of biological life, and that the embryo has no awareness or consciousness. Plenty of embryos are discarded during the in vitro fertilisation (IVF) process. We have the morning-after pill. Society, this would suggest, has already accepted the counter-argument.

What about the threshold of viability? In many countries, this has been the most common criterion used in drafting laws regulating abortion.

The threshold of viability has decreased. It was 24 or 25 weeks in the 1990s. A landmark US study, published in the New England Journal of Medicine last year, suggested that the new marker of viability should be 22 weeks.

The study reported a massive variation in the rate of active treatment for babies born at 22 weeks at different hospitals. Of seventy-eight 22-weekers who received aggressive care, just 18 survived to become toddlers. And of those 18, only seven were largely healthy.

The outcomes are pretty dismal, but the study has already had a significant impact on the abortion debate overseas. Should 22 weeks be the real definition of viability?

‘A continuous sleep’

What about examining the first sign of brain activity? The problem here is that brain activity does not demonstrate that the foetus is actually “conscious”.

The official position of the Royal College of Obstetricians and Gynaecologists (RCOG) in Britain– the scientific view, so to speak – is as follows: “In reviewing the neuroanatomical and physiological evidence in the foetus, it was apparent that connections from the periphery to the cortex are not intact before 24 weeks of gestation and, as most neuroscientists believe that the cortex is necessary for pain perception, it can be concluded that the foetus cannot experience pain in any sense prior to this gestation.”

It also says that “there is increasing evidence that the foetus never experiences a state of true wakefulness in utero and is kept, by the presence of its chemical environment, in a continuous sleep-like unconsciousness or sedation”.

The issue of foetal consciousness and foetal pain has become serious political fodder in legislative battles over restricting abortions later in pregnancy in the United States. We can expect this, too, to drift into the Irish debate.

Medical terms and scientific facts have all too often been misinterpreted and misappropriated to support a particular ideology in the current debate. Take abortion and psychological risk. In August, Cora Sherlock of the Pro Life Campaign wrote an article in which she questioned whether society would “continue to ignore issues like the risk of psychological harm from abortion”.

Sherlock cited what she described as a “comprehensive Finnish study by Mika Gissler”, which “shows that women who have [sic] abortions are more likely to end their lives by suicide than women who continue with their pregnancies”.

But professor Mika Gissler utterly rejects this interpretation of his work. “Unfortunately, the anti-abortion people have misused the main message of the study,” he wrote in an email to this newspaper last week.

“We showed that [the] suicide rate is much higher among women who terminated their pregnancy. This is not due to causality, but [due to] common risk factors.”

Gissler said that his research also showed that deaths from accidents and homicides increased among women with a recent induced abortion.

“So it is, again, about common risk factors, not causality,” he said.

Lingering emotions

The link between abortion and mental health problems is dismissed by organisations tasked with the protection of women’s health and mental health including the American Psychological Association, the American Psychiatric Association, the American College of Obstetricians and Gynaecologist, and the Royal College of Obstetricians and Gynaecologists.

“For women with an unplanned pregnancy, there is no difference in the risk of depression or other mental health problems between those who have an abortion and those who have the baby,” said the ACOG in a statement last week.

A US study published last year concluded that 95 per cent of women who had had abortions believed it was the right decision. The study was carried out by researchers from at the University of California’s San Francisco’s School of Medicine, and published in the multidisciplinary academic journal Plos One.

The study, involving 670 women, was careful to avoid generalities. it also differentiates between having lingering emotions after an abortion and regretting the abortion altogether.

At least 12 women travel overseas from Ireland every day to have an abortion. Extrapolating from the above study suggests that more than 200 women who terminate their pregnancies each year regret it. Elements within the pro-choice movement have not always been happy to concede this point.

When Lynn Coles and Bernadette Goulding set up a website called Women Hurt to support women who regret their abortions, the then director of the National Women’s Council of Ireland argued that it sent out a “counter-productive” message.

Goulding said she and Coles were – and continue to be – “accused of making women feel guilty. That was never my aim. There probably are women out there who don’t regret it, but there are [also] those of us who do regret it”.

Goulding said she believed there was “a total denial that there is any such thing as post-abortion distress”.

She added: “I had an abortion myself. I thought it was the right decision. I rushed in and made the decision in haste. I had huge regrets afterwards, and suffered a sense of loss.”

Goulding argues that “pro-abortion advocates are often hesitant to recognise the reality of post-abortion grief because they fear this means they have to recognise the death of a baby, which may somehow undermine the political argument for legal abortion”.

Powerful stories

Women carrying foetuses with serious, life-limiting abnormalities have taken centre stage in Ireland’s heated abortion debate.

Parents who have made the painful decision to terminate these pregnancies have spoken out about being forced to travel overseas. Some have described being made to feel like criminals. Their tragic and powerful stories have resonated with the public.

But there is a dispute around the use of the term “fatal foetal abnormality”. The HSE does not use the term, opting instead for the term “life-limiting condition” in its recent guidelines for bereavement care following pregnancy loss and perinatal death.

The HSE cites a study that highlights the challenges inherent in applying defining terms such as lethal or fatal foetal abnormality. It was published in the British Journal of Obstetrics and Gynaecology in 2012, entitled Fatally Flawed? A Review and Ethical Analysis of Lethal Congenital Malformations.

The authors analysed the concept of “lethality’ as applied to foetal or congenital malformations.

The study points out that the word ‘lethal’ is conventionally used “to describe something (eg, an action or agent) that will cause death”.

However, the authors said they could not identify “an agreed list of conditions that fit into this category,” adding that “none of the malformations that are most commonly described as being lethal are actually lethal in the strictest sense”.

The study explained that this was because “prolonged survival has been described in all of the conditions listed”, with one exception (a condition called renal agenesis).

Anti-abortion campaigners have used the study to undermine support for facilitating terminations for women in these circumstances.

In a recent article in the Irish Catholic newspaper, Barry Walsh, vice-chair of the Fine Gael executive, quoted the study at length to argue against allowing termination of these tragic cases.

But the researchers are appalled at how their study is being misused in the Irish abortion debate.

“I was hopping mad to find a study which was essentially about clarifying language in ethical reasoning and medical communication in order to give women a clearer idea of the choices they faced, so that they could make them in an informed way, used by somebody who is trying to do just the opposite – restrict choices for women or, at least in the Irish context, resisting efforts to give them safe choices,” said Dr Andrew Watkins, a paediatrician and a co-author of the study.

In his article, Walsh pointed to a woman, Tracey Harkin, who had written about her daughter Kathleen Rose who was “diagnosed with Trisomy 13 in the womb, and yet she recently celebrated her ninth birthday”.

“Pointing to exceptions to make a personal moral point is counterproductive,” Watkins said.

He also said the study made the point that words such as “lethal” were used too loosely. He said the reasons were “manifold”, but that it was mostly a form of mental shorthand – a way to soften difficult decisions in the mind of the doctor or patient. He said this was “commonly subconscious”.

Watkins said this information was “cherry-picked and taken by Walsh in his article and turned into a ‘eugenic docs [doctors] lying to parents about murdering their babies’ or such like”.

He said parents could be dealt a variety of hands which weren’t necessarily knowable in utero, so some people were working on the basis of probabilities.

He added that some conditions were actively painful, while others were associated with high mortality and little if any sentient existence, or were almost always universally lethal.

Watkins and his co-authors believe it would be very hard to draw up a list of “allowable” conditions, as the issues are different from patient to patient and family to family. They feel that any such list would necessarily be incomplete, and that there would be anomalies and tragedies at the boundaries.

Watkins pointed out that adults could reject futile medical treatment. Someone with metastatic cancer (cancer that has spread) and kidney failure might reject the burden and complication of dialysis, for example.

This choice is not available to the infant or foetus, which faces even more complex medical situations. They are at risk of having treatment forced upon them, regardless of what they might have decided if they had the capacity to.

“So somebody has to decide for them. It is probably best if that is somebody, however messy or imperfect, who loves them as much as anybody is likely to,” Watkins says.

Defining choice

Cora Sherlock has argued that if we are to allow abortion in cases of serious foetal abnormalities, who will be next? If unhealthy, seriously disabled babies are not entitled to the same rights as healthy babies, where will that lead us?

Sherlock has cited figures from the National Down Syndrome Cytogenic Register (NDSCR) for England and Wales. The most recent report found that of the 1,188 pre-birth diagnoses of Down Syndrome, 75 per cent ended in termination. The true figure is likely to be even higher, as the outcome was unknown in 17 per cent of cases.

In 2011, a Danish newspaper reported that the country’s prenatal testing programme meant Denmark “could be a country without a single citizen with Down Syndrome in the not too distant future”.

Opponents of abortion rights express concern that we will eradicate difference if we allow abortion under these circumstances. They argue that we would create a society where eugenics is gently presented and unthinkingly accepted.

Proponents of abortion rights caution against confusing being pro-choice with being pro-abortion. Choice can mean choosing to bring a child with Down Syndrome or other genetic conditions into the world. In other countries, it is clear, however, that most people choose not to.

Last Thursday, the Coalition to Repeal the Eighth Amendment outlined concerns with the Citizens’ Assembly, which meets on October 15.

Ailbhe Smyth, convenor of the Coalition to Repeal the Eighth Amendment, said it was vital that the Assembly consults widely with medical, legal and human rights experts – both nationally and internationally. She said a tight reporting timeframe was imperative as “public patience on this issue is running low”.

The Coalition also wants the Oireachtas Committee that will consider the Assembly’s recommendations to be appointed now.

Colm O’Gorman, executive director of Amnesty International Ireland, appealed to the media for a different approach to the conversation.

“The media needs to start to provide a platform for a discourse that informs public opinion,” he said.

The debate, O’Gorman said, “seems to get stuck on whether abortion is right or wrong. It needs to move on to an honest or objective reflection on what would a framework for abortion in Ireland look like, as opposed to a vitriolic tit-for-tat that is just designed to shut down the conversation”.

We do not know what the Citizens’ Assembly will recommend, or indeed how quickly politicians will act on those recommendations. We do not even know whether we will definitely have a referendum. But successive polls show people want change.

At times, this debate has been hijacked by some of the more extreme elements on both sides. Campaigners – and various journalists – have been subjected to vitriolic attacks.

Various parties have called for an informed and considered debate on abortion. If we manage that, it will be a first.

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