Abortion in Ireland

The European Court of Human Rights has declared something to the effect that Ireland’s almost total prohibition of abortion is not acceptable to it and must be changed in some way. The full judgement is here and is worth reading, as these things usually are, not least because it is being represented by frothing EU* sceptics (and I am usually an unqualified supporter of the frothing fraternity) as the EU imperiously ignoring democracy and the will of the people and decreeing law in an arbitrary fashion for its own ends. Much as I dislike the idea and the practices of the ECHR, it does not act imperiously or arbitrarily, and its decisions are based on the facts, the representations and the relevant law**, all carefully documented in the judgement.

The problems begin when quite a lot of that law was not made by the people it is being applied to, and when a lot of it only exists as a result of previous interpretations, by courts and commissions, of laws, regulations and codes which were likewise not directly passed by the people or their elected representatives. There comes a point where the judgements and decisions, however well considered and carefully and precisely anchored in law, are based on laws which should not exist, and are illegitimate for that reason.

Just to clarify my own position on this, although it’s not relevant to the points I’m making, I instinctively feel abortion to be a barbaric act unworthy of any society that claims to be civilized.

This is not a question of the tyranny of the majority, of ‘we can’t have that sort of thing’. The whole argument hinges on whether an unborn child is or is not a human being***, or at what point the transition occurs. If the foetus is human it must be entitled to protection equal to that of its mother (which would not necessarily preclude abortion in some circumstances). If it is not human there is very little to discuss. The argument is seldom set out in these terms (which might suggest that I am wrong to strip it to its bones, but I think not).

The Irish people stated clearly, with their own voice****, their desire to recognise the humanity of the unborn child, with everything that entails. It is because the majority hold the foetus to be human that the majority may impose its will on the minority in order to protect another group. So the question becomes again, ‘are the unborn human?’

Medical science can only attempt to answer the question of whether an unborn child satisfies certain criteria for being human; it cannot, except very broadly, define what those criteria should be. This is not a scientific matter, but a moral one. Ultimately it is a matter of opinion. The defence of human life is taken very seriously by people of all political persuasions, and where they can, they ensure that the actions of their rulers reflect the importance that attach to the matter. The fact that not everyone agrees on the details only means that it is more important to discuss them. There is general acceptance that murderers are human, but considerable division on the question of whether their right to life remains absolute after the act of murder is proven.

It is unlikely that slavery would have been abolished in the Empire, or in the US, if some people had not defended the unfashionable idea that slaves, or those considered as potential slaves, were equal in humanity to the people enslaving them, regardless of economic or any other arguments. Bartolomé de las Casas prevented the enslavement of Indians in Spanish territory by arguing precisely that before King Felipe II (and by winning the argument he inadvertently started the Atlantic slave trade, but that’s the way it goes).*****

The point I'm trying to make here it is that is not a matter for the ECHR, but for the people of Ireland and their representatives, as is abortion law in Britain similarly a matter for us and for Parliament. The fact that different peoples and societies reach different conclusions of the humanity of the foetus shows that there is no obvious overaching truth in which to base a principle of law that is outside democratic control. Meanwhile, babies in Britain will continue to be killed and women in Ireland will continue to have their lives turned upside down and in some cases ruined, and those whose opinions have caused these things to happen will continue to search for an authority which can take the responsibility out of their hands. But there probably is no such authority, and it isn't the ECHR.

*Yes, I do know the ECHR is not an organistion of the EU.

**Article 8 of the Convention on Human Rights, of which much has been made in the judgement, is here. It is hard to see how it has been breached by Irish law, because Irish law itself has not been breached but that's judges for you.

***A referendum was held in 1983, resulting in the adoption of a provision which became Article 40.3.3 of the Irish Constitution, the Eighth Amendment (53.67% of the electorate voted with 841,233 votes in favour and 416,136 against). Article 40.3.3 reads as follows:

“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.”

****We all like to dehumanise the people who we fear or despise, or who remind us of our inferiority, or inconvenience us greatly. History is full of examples, as is the modern day, and it is as common in modern Europe as in the more lawless parts of Africa over the last 30 years, in Nazi Germany or during the bloody persecutions of Elizabeth I, although perhaps less institutionalised and, thankfully, with less extreme results, at least at the moment. But it is only human to value ourselves more than others, and to attempt to rationalise any decision we take or opinion we hold, whatever the original reasons behind our choice.

*****In fact, being a clever chap, he presented a legalistic argument, rather than a strictly ontological one. He persuaded the King that the Indians, as residents in his lands, were his citizens and entitled to his protection. The conversation, which took place over many days and involved large numbers of lawyers and courtesans, each with their own interests, among which the discovery of moral truth is unlikely to have figured highly, must have been particularly fascinating.