Saturday, January 05, 2013

We cannot simply roll over and legislate for abortion (Opinion)

The National Car Test (NCT) is all about safety. 

That’s why there are so many different ways to fail. It could be the lights, the brakes, the steering or the tyres. 

If any one of those is defective, then the car is defective. 

There’s no point in trying to tell the tester that two out of three is a good score and, after all, the lights and the brakes are fine.

Long before the NCT, St Thomas Aquinas used a similar method to describe how human actions are good or evil (moral or immoral). He explained that there are three essential ingredients in every human action. 

They are the object (what I am doing), the end (my intention in doing it) and finally the circumstances in which I do it. For a human action to be morally good, all three of these elements must be good (just like in the NCT). 

If any one of those elements is defective, then the action is immoral. This basic principle can be very helpful to us when it comes to evaluating our decisions about the care of expectant mothers and their unborn children.

Choices

People have all sorts of reasons for the things they do. Sometimes they are generous reasons and sometimes they are selfish. Some people believe that, by having an abortion (or enabling someone else to have one), they are acting responsibly and even solving a problem for other people. 

On the other hand, many people have abortions simply because being pregnant interferes with their life-style. Some doctors see abortion as part of their care for their patients, but others do it simply to make money. 

It is certainly better to be motivated by generosity and compassion than by greed and selfishness. 

But no action can be good or morally justified on the basis of intention alone (just because “I meant well”). 

Object

Some actions are always objectively evil (or wrong in themselves), no matter what our reasons are for doing them. This is because they conflict with reason or truth. One of these is the deliberate killing of the innocent, which conflicts with the truth about human dignity. 

This is why the Catholic Church and indeed many other groups and individuals regard abortion as fundamentally immoral.  It is true that, following an abortion, some problems may be resolved. 

These apparently ‘good’ consequences do not change the fact that what was intentionally done, the heart of the action, was fundamentally immoral. The end doesn’t justify the means. It is worth remembering also that morality is not just about what happens (the external consequences); it is about what I become through my decision to make it happen or to condone it, or even my failure to prevent it. 

Circumstances

Actions don’t happen in a vacuum. There are always circumstances. In the case of abortion, the mother may be very young; she may be frightened, or poor or under pressure from other people. An inexperienced doctor might be faced with a sudden emergency and, without thinking it through properly, might abort the baby. 

The level of personal freedom involved determines the level of moral responsibility. A woman acting out of fear would be less responsible, for example, than an experienced medical professional who is probably better informed and less emotionally involved. 

The important thing to remember is that while they can be mitigating, the circumstances cannot turn a fundamentally bad action into a good action.

Medical treatment

From both a practical and a moral point of view, there is a vast difference between abortion and medical treatment. It would be truly awful if people were to support the legalisation of abortion in the mistaken belief that it is necessary for the care of women in pregnancy. Nothing could be further from the truth. The following examples may help to explain this.

a) Cancer of the cervix

The treatment for cancer of the cervix during pregnancy is the same as it would be at any other time. It doesn’t ignore the reality of pregnancy or the well-being of the unborn child, but it is realistic about what it is possible to achieve. In early pregnancy, the baby would be unlikely to survive even if the mother’s treatment were to be delayed, whereas the woman’s life would be placed at great risk. 

Medical treatment, involving surgery, medication or a combination of both must be the priority. Objectively it is not an abortion because the target is the disease, not the baby. 
While the foetus inevitably dies, the intention is to save whatever life can be saved. If cancer were diagnosed later in pregnancy, once the baby is viable outside the womb, the pregnancy would be ‘terminated’ by delivering the baby early with the intention of saving both lives.

b) Ectopic Pregnancy

An ectopic (or tubal pregnancy) happens when the fertilised ovum doesn’t travel down into the womb. It can be quite dangerous for the mother and often requires surgery which results in the death of the embryo. This, like the previous example, is justified under what is known as the principle of ‘double effect’ because the bad effect is not intended, and is not disproportionate to the good effect, and because the mother’s life is saved by the treatment of her fallopian tube and not by the destruction of the embryo. There are also chemical treatments for ectopic pregnancy which involve directly destroying the embryo. 

While the end result seems to be the same for the embryo, these treatments using metathrexate are morally unacceptable because they actually target the embryo directly. 

c) Ecclampsia

Another common problem during pregnancy is ecclampsia (associated with high blood pressure). This is unpredictable and can be very dangerous if it is not properly managed. 
Ecclampsia is associated with the second half of pregnancy and normal treatment includes the early delivery of the baby, together with medication to control the hypertension. There is, therefore, no conflict between the treatment of the mother and the survival of the baby. 

d) Severe Bleeding/Infection

Infection or severe bleeding in the womb obviously places both the mother and the baby at risk. If the pregnancy is sufficiently advanced, the baby will be delivered and the mother will be treated immediately and there is a good prospect of saving both lives. If the pregnancy is not that far advanced, the mother has to be treated for the infection or the haemorrhage. The death of the foetus as a side effect of treatment is foreseen but not intended. Since it is not intended, it is neither illegal nor immoral. If the doctor were to directly target the unborn, that would be different, but there is no medical reason for doing so.

e) Suicide ideation

Finally, we must address the question of the risk of suicide in the case of women who may be depressed or anxious during pregnancy. A woman might consider suicide because of a pregnancy but, if her life is at risk it is from herself not from the child in her womb. The appropriate response to the mother’s crisis is to treat her depression or anxiety, through counselling or medication. Abortion, even if it could be morally justified, is not a treatment for depression. The evidence actually points to its being, in its own right, a cause of depression.

The law of the land (the 1861 Act – passed by a Protestant Parliament) and the teaching of the Catholic Church actually have much in common. Both prohibit any action which is done with the “intent to procure a miscarriage” i.e. a deliberate abortion. Neither the Church nor the State prohibits medical treatment which is intended to save life, even if it is not possible to save both lives, provided only that no life is disregarded or deliberately ended. Ultimately the practical decision on the day has to be a medical one. In Ireland, the result is that, without abortion and thanks to the quality of medical care, we have one of the lowest levels in the world of maternal death.

Expert Group

The report of the Government’s Expert Group is presented as a response to the judgement of the Supreme Court in the X case, and subsequently the judgement of the European Court of Human Rights (ECHR). 

At the outset, I would question the jurisdiction of the ECHR in this matter because abortion is not a human right. The finding of the Supreme Court in the X case was, at most, that under certain circumstances abortion may be a civil right. Civil rights are not human rights.
More important, however, are the various options presented by the Expert Group, because they all propose the legalisation of abortion, whether by ministerial order or by legislation. 

No consideration seems to have been given to the possibility that the State could respond to the judgement of the ECHR by seeking to reverse the judgement of the Supreme Court in the X case. 

This would, of course involve a further referendum. The present Government seems committed to holding a range of referenda, so there is no reason why a referendum on an issue of such importance should not be facilitated.

X case

The people of Ireland, in the eighth amendment to the Constitution (1983), acknowledged the right to life of the unborn, and the equal right to life of the mother. In its decision in the X case, the Supreme Court, in effect, argues that the right to life of the unborn child is not really equal to the right to life of the mother. 

An argument like this could validly be used in respect of other rights because there are quite clearly some human rights, such as the right to education, from which an unborn child cannot benefit. The right to life is, however, a precondition of the exercise of any other right at any time in the future. 

Mr Justice Finlay maintained that the threat to the life of the mother (which was a matter of speculation or at best probability), carried greater weight than the threat to the actual life of the unborn (which was certain). His judgement also failed to take account of the fact that, while the pregnancy was the circumstances in which the young woman in the X case found herself (through no fault of her own), the risk to her life was not from the child in the womb but from herself.

Mr Justice McCarthy acknowledged that the magnitude of risk applying to the mother would always be less than that applying to the child to be aborted. Then, in spite of that, he went onto say that abortion is envisaged by the eighth amendment, and used the expression “with due regard” as if it in some sense cancelled out the expression “equal right to life”.

Mr Justice Egan interprets the terms “with due regard for the equal right to life of the mother” and “as far as practicable” to mean that an abortion will not in every possible circumstance be unlawful. His conclusion does not follow logically from the premises. 

In reality, the above phrases simply acknowledge that, despite the best efforts of the State to carry out its responsibility, the unborn will sometimes die, whether naturally, through medical complications, or through some human agency which is beyond the reasonable control of the State. To acknowledge that the unborn may die, and that the State may be helpless in the face of this death, is fundamentally different to suggesting that it may ever be lawful for the unborn to be killed. Once again, the key issue is that of intention.

The Supreme Court, instead of interpreting the Constitution, went beyond it and changed its meaning, which it is not the competence of the court to do. The court should have respected the stated intention of the vast majority of the Irish people, and might usefully have made reference to the principle of double-effect, which allows for all necessary medical treatment for the mother. 

The basis for the decisions in both the X case (1992), and subsequently the C case (1995), would seem to be the very strong public sympathy for the young women concerned who were pregnant. The ground-swell of compassion was perfectly valid and understandable in both cases, but what is not understandable is that judges of the Supreme Court should allow the emotionally charged atmosphere to obscure one of the essential facts, namely that the unborn child also has rights, both under natural law and under the Constitution.

State response

Given that, in both the X and the C cases, the State seemed disposed to believe that the mother was subject to grave pressure, and likely to commit suicide, the question arises as to how else the State might have carried out its responsibility of care, other than by consenting to and, in the C case, formally participating in an abortion.

Two questions in particular arise in respect of these cases

What resources were made available, and what specialist agencies were approached to provide on-going counselling and care for the mother, with a view to reducing or removing the risk of suicide?

What consideration was given to the possibility that the abortion, in itself a violent act, may have added significantly to the trauma of the mother in either case. What kind of post-abortion care has she, the mother, received in either case?

Future

I appreciate that, circumstances such as the recent death of Savita Halappanavar, place politicians under enormous pressure. It is not my wish to add to that pressure. 

I would point out, however, that the judgement in the X case has ramifications which far exceed anything that might be required to provide appropriate medical care for women during pregnancy. 

It would be very unfortunate if politicians, in an attempt to respond compassionately to the death of Savita, were to see the legalisation of abortion as a solution. 

A Government which by definition has responsibility for the common good cannot, in my view, simply roll over and legislate for abortion, since the common good cannot be achieved by any means which undermines the good of the individual. 

I am asking public representatives not to implement the report of the Expert Group but to seek an alternative response to the ECHR which would equally respect the right to life of mothers and their unborn children.

Previous governments have presented us with follow up referenda in which the option was a little abortion or a lot of abortion. 

I am calling for a referendum which allows the people the opportunity to exclude abortion altogether. 

This should be accompanied by legal clarification of how medical treatment to save the life of the mother can be provided under existing legislation even when, as an unintended consequence, the unborn child would die.

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