IT IS a well-known aphorism that hard cases make bad law. It is even more apposite when applied to moral principles.
But across a range of issues it is exceptional problems that seem to be driving changes in our social codes.
The death in Galway of Savita Halappanavar, the seriously ill woman whose foetus doctors did not abort, was tragic and unnecessary.
However, she has been seized upon selectively by pro-choice campaigners as yet another woman to die in the name of religion.
Yet further examination of the case suggests that there is nothing in Irish law that would have prohibited her doctors from acting. It would not even have been defined as abortion as the intent would have been not to kill the foetus, but to save the mother’s life.
It may be that the culture in Irish hospitals and the approach of their midwifery staffs militate against this option being readily taken.
But a balanced judgment would suggest that the awful outcome was more due to incompetence or stupidity rather than to the law.
But the pro-abortion lobby invariably uses emotive cases to make its point rather than rely on any fundamental, universal principle.
Supporters of abortion on demand claim that a woman has total rights over her body. This is surely a narrow, selfish view of women, defining them as in a goldfish bowl isolated from family and society.
Is it really a principle that can be absolutely adhered to?
Are men and women who want to buy and sell consenting bodies for sex to be defended?
Away back in 1966 as Maurice Miller, MP for Kelvingrove, prepared to vote for the Abortion Bill, I asked him on what he based his definition of life.
“Independent survival outside the womb,” was his answer. That immediately seemed nonsense. It still does. First, day-old babies cannot survive independently.
Secondly, it is a moveable yardstick. Is a person’s right to life dependent on the current state of medical know-how? That’s no principle.
Yet it is a practice which is increasingly enshrined in law. Abortion has an age limit and doctors can allow people to die if they cannot readily find a cure. Take the handling of that very complicated medical issue – a person in a “permanent vegetative state”.
This syndrome reached the height of its notoriety with the case of Tony Bland, a Hillsborough victim with such severe brain damage that doctors decided that as he failed to respond to any outside stimulus his life should be terminated.
In 1993, the House of Lords ruled that Bland could be starved and dehydrated to death after an application by his doctors, supported by his parents.
Glasgow’s Archbishop Thomas Winning, among many others, condemned the court’s decision. To Winning, standing by and watching someone starve contradicted a universal principle that individuals have an unqualified right to nourishment and that other individuals and society have a duty to provide it.
However, it was the expert, though still subjective, opinion of doctors which carried the argument. The parents were saved further distress and the NHS resources.
As for Bland, the court deemed it not against his best interests to die.
Is that a sound basis for law? The medical profession clearly thinks it is as it expanded the Bland decision, interpreting it to cover other illnesses such as strokes or severe dementia.
The courts support this interpretation, holding that withdrawing nutrition does not breach Article 2 of the Human Rights Act 1998, which states: “Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally.” There was no breach, the courts found, because withdrawing tube feeding was an “omission” and not an “act”. A jesuitical distinction.
The law still does not allow these patients to be injected lethally. They must be starved to death. How humane! But it is moving towards euthanasia and this might be accelerated in Scotland with Margo MacDonald’s proposal for a law to allow “assisted dying”.
Those pressing for a modernisation of our social attitudes are quick to cite the individual’s or group’s human or civil rights.
Yet they are unwilling to recognise that for these rights to have any basis they must derive from an over arching moral code.
Remove these overriding principles and the individual’s rights are dug in sand. When the two clash, pressure groups throw out the long term code in favour of the individual’s or society’s short term convenience. It becomes a free-for-all.
The Christian churches and other moral authorities are not always right.
But the Catholic Church, at any rate, has a clear moral stance which dictates its pronouncements. Increasingly, it is vilified for declaring such opinions by groups allegedly dedicated to equality and diversity.
Freedom of speech, another basic right, is being flattened by hostile intolerants determined that their views shall not be challenged.
A Christian uses social media to express his mild opposition to gay marriage and is punished, not by the state but by his company. Scotland’s cardinal is insulted as a bigot for warning that society may be adversely affected by changing the definition of marriage.
The Christian has no guarantee of getting his job back and the vilification of the cardinal comes from an organisation, Stonewall, whose work is part funded by the Scottish government.
The remarks did cause hurt to individuals.
But the reaction was disproportionate.
This is a one way street.
Society, through legislation, the courts, employers and governments – and in the name of equality and the freedom of the individual – is becoming increasingly intolerant of views which challenge the new orthodoxies.
Religion, specifically targeted, is finding it difficult to rebuff the assaults. However, it is the wrong stronghold to assault.
The Catholic Church’s resistance to quick-fix solutions to heartbreaking social problems is based on a sometimes harsh morality that defends the individual.
Better that than a knee jerk reaction to every tear jerk headline.