Rights. Principles. Personhood. These words are central to the controversy surrounding abortion all over the world. Abortion defined as the “termination of a pregnancy resulting in or closely followed by the death of the embryo or fetus” triggers debates and protests throughout (Boddu 78). In the Republic of Ireland, one would find a narrow outlook driven by religion that in recent years is slowly widening as religion is losing its strong hold.
However, besides Malta which completely bans abortion, Ireland has the strictest abortion legislation in Europe (AFP). In the first part of this paper, I will examine the history of abortion law in Ireland and compare it to other countries. In the second part, I will analyze the pro-choice side and pro-life side of the abortion issue. To conclude, I will address my thoughts on the issue.
Before becoming the Irish Free State in 1922, the Republic of Ireland formed part of the United Kingdom and therefore was under its 1861 Offences Against the Person Act. This act criminalized abortion with a punishment of life imprisonment (Rossiter 11). Whereas the United Kingdom was more progressive with its legislature by legalizing abortion of fetuses “prior to 28 weeks of gestation by registered medical practitioners” in 1967, Ireland kept a narrow-minded grasp on abortion laws (Boddu 79).
After becoming independent, Ireland did not develop its own abortion legislature. However, the landmark 1973 Roe v. Wade case in the United States instilled fear in anti- abortionists that the courts might recognize the right to abortion. This propelled them to set up the “Pro-Life Amendment Campaign.” (Kingston, Whelan, and Bacik 4). Their lobbying proved to be successful with the passing of the Eighth Amendment to the Constitution in 1983. The amendment states that “the unborn’s right to life must be protected; the unborn’s right to life was equal to that of the mother; and, this right to life would be defended to the greatest degree practicable” (Boddu 79). In the 1991 Society for the Protection of the Unborn Child (SPUC) vs. Grogan case, the European Court of Justice ruled “distribution of information regarding abortion to be illegal” (Boddu 80).
Although, anti-abortionists were clearly winning the abortion issue, the tide changed the following year. In 1992, Ireland had its own landmark case with the X case. Referenced as “one of the most important constitutional cases to come before an Irish court,” the X case revolved around a 14 year old suicidal rape victim who travelled to the UK with her family to obtain an abortion (Kingston, Whelan, and Bacik 6). Before the abortion was performed, the Attorney General ordered an injunction against her to restrain from obtaining the abortion and was granted by Costello J in the High Court. This motion stirred up outrage, especially in the youth.
The injunction invigorated the pro-choice movement which helped bring the case up to the Supreme Court. The Supreme Court overturned the injunction due to the fact that X “faces a real and substantial risk to her life due to threat of suicide and this threat could only be averted by the termination of her pregnancy” (“Abortion in Ireland”). In the aftermath of the case, three amendments were proposed. They included: the Twelfth Amendment which would overturn the Court’s ruling and remove suicide as grounds for abortion in Ireland, the Thirteenth Amendment which proposed the right to travel outside the country for abortion, and the Fourteenth Amendment which proposed the right to “make available information on abortion services outside the State” (Boddu 80). The Thirteenth and the Fourteenth Amendment were passed, bringing a victory for the pro-choice movement.
The 21st century produced significant progress in the abortion issue. In 2009, three women, known as A, B, and C “challenged the ban on the grounds that it forces women to travel abroad to procure abortions, jeopardising their health and well-being in violation of the European Convention on Human Rights” (Boddu 80). Although the court ruled that A and B’s rights were not violated, it also unanimously ruled that Ireland violated C’s “right to respect for her private life given the failure to implement the existing constitutional right to lawful abortion in Ireland” (Boddu 80).
This ruling made it aware that the Ireland’s abortion legislature was ambiguous and needed to be changed to provide clarification. It was unclear for C, who had been undergoing chemotherapy, to find out if she qualified for a legal abortion under Irish law. The 2012 death of Savita Halappanavar brought the abortion issue to the forefront as protests emerged all over. Halappanavar had requested an abortion after suffering from a miscarriage but was refused based on the grounds that the fetus’s heart was still beating.
The priority of the fetus over Halappanavar led to her death. Following the turmoil, in July 2013, the Protection of Life During Pregnancy Act was passed. The Act provided clearer guidelines on abortion, stating that one to three physicians are required to concur before the termination could occur depending on if the woman was at risk of loss of life from physical illness, risk of loss of life from physical illness in emergency, or risk of loss of life from suicide (“Protection of Life”). Although there was protest by both sides of the abortion debate, this Act was a step forward.
As stated previously, Ireland’s abortion law is quite restrictive when compared to other European countries. Ireland’s abortion laws developed through “judicial interpretation and political amendment” which differed from most European countries which laws were created through “a variety of political and legislative compromises” (Kingston, Whelan, and Bacik 249). However, how does it compare to the United States? Similarly to Ireland, the US’s abortion law developed through the Supreme Court’s interpretation of the Constitution.
Prior to the breakthrough Roe v. Wade case, most states followed the English common law that abortion was allowed before quickening which is the “first recognizable movement of the foetus in utero” (Kingston, Whelan, and Bacik 250). Between 1824 and 1841, states began to enact laws criminalizing abortions. However, these statues were rarely enforced. In 1973, Roe challenged a Texas statue which prohibited abortions except on medical advice to save the life of the pregnant woman.
The Supreme Court ruled that women had a right to have an abortion in the early stages of pregnancy based on the constitutional right to privacy. This ruling invalidated all the state laws prohibiting abortion and set guidelines on abortion (Kingston, Whelan, and Bacik 256-258). In 1992, the court upheld the right to abortion in the Planned Parenthood v. Casey case, but “significantly weakened the legal protections previously afforded women and physicians by giving states the right to enact restrictions that do not create an “undue burden” for women seeking abortion” (“Facts on Induced Abortion”).
It’s evident that compared to the US and most European countries, Ireland holds a more restrictive view on abortion. Nevertheless, there has been significant progress over the years. Next, I will analyze the pro-life side of the abortion debate.
Fundamental to the pro-life view is that one must consider the fetus a person. Dr. John Willke of the National Right to Life Committee argues “the embryo must be a separate human person, not simply living tissue, from the moment of conception since the crucial forty-six chromosomes that determine a person’s separate and distinct genetic identity are all present in the fertilized egg” (Tribe 117). If one believes that a fetus is a person then the fetus has a right to life.
From a principlist approach, the principle of non-maleficence which obliges one to do no harm emerges. The principle of non-maleficence entails that “if one cannot do good without also causing harm, then one should not act at all” (“Principle of Beneficence”). This ensures that abortion which terminates the fetus is unethical and immoral under the theory of principlism.
One can also approach this view with Kant’s deontology theory. Kant’s deontology proposes four duties that “must be upheld at any cost” (Dooley and McCarthy 186). One duty states that one has to “treat people as ends in themselves and never solely as means to an end” (Dooley and McCarthy 186). If a fetus is a person, then abortion is wrong since a woman is treating the fetus as a means to an end. Women choose to abort because of their desire to not have a child which is the ‘ends.’
Additionally, Kant claimed that some actions are “intrinsically wrong” and that “no anticipated good outcome can give moral warrant or justification for carrying out these actions” (Dooley and McCarthy 45). Abortion can be intrinsically wrong since in having her fetus destroyed, the woman can be thought to be debasing herself and undermining the right to life of the fetus.
Another approach to the pro-life view can come from Catholic morality with the doctrine of double effect (DDE). DDE, a set of ethical guidelines that is used when it is impossible to avoid harmful effects, is ‘based on the fact that evil must never be directly and voluntarily willed for its own sake” (Irving 2). The doctrine has four conditions that must be followed to ensure a moral action. The first condition is “the action to be performed must be good in itself” (Irving 2). If one applies this to the abortion issue then this first condition is not obeyed since the act of abortion is “inherently evil” and results in the “the intentional and direct killing of an innocent human being” (Irving 2).
Although the first condition is already broken, let’s look at the other three also. The second condition holds that the action is “undertaken only with the intention of achieving the possible good effect, without intending the possible bad effect, although it may be foreseen” (Bruce, Gentry, and Hendrix 325). With this condition, abortion is immoral since the death of the fetus is intentional. The third condition holds that the “good intended must not be obtained by means of the evil effects” (Irving 2).
Therefore, abortion is immoral since as stated previously, the woman is treating the death of the fetus as a means. The last condition maintains that the action must be “undertaken for a proportionately grave reason” (Bruce, Gentry, and Hendrix 325). This condition might be or might not be fulfilled depending on the reason for the abortion. If a woman chooses to terminate her child because she is not ready then this condition is not fulfilled as it is not a grave reason. Yet, if a woman requires abortion because her life is danger then this condition could be fulfilled. Even so, abortion is never morally permissible since all four conditions must be satisfied.
Pro-life advocates argue that it is fundamentally immoral to kill an unborn child who is considered an innocent person. To them, it is considered murder, believing that the fetus’s right to life outweighs the woman’s decision or even health. Weaknesses on this view arise when the women pregnant is suicidal, their health is at risk, or when their pregnancy is result of rape or incest. For example, under all the previous theories, even if the woman is in danger of dying if an abortion is not performed, abortion will still be wrong. This results in a shortcoming in which both the unborn baby and the mother could die. Even so, pro-life advocates emphasize the importance of the fetus as person and the right to live. Now to understand more about the abortion debate, I’ll move on to examine the pro-choice side.
Essential to the pro-choice side is the freedom to choose. Pro-choice advocates assert that they have right to control their own body. A weakness lies with their lack of concern for the fetus, focusing only on the women being forced against their will to continue with their pregnancy. Their line of thinking is that since the fetus is inside her body, a woman has a right to choose if the fetus should remain in her body. One can look at this from a principlist point of view. Under the principle of autonomy, a person has the right to make choices without interference but with all the necessary information.
Therefore, pregnant women have to the right to be informed about abortion services and the right to have an abortion. The state should not force a woman to go through pregnancy. Professor Laurence Tribe argues, “laws telling a woman she must remain pregnant derive her of the very core of liberty and privacy” (104). Attorney Jed Rubenfeld agrees, stressing that laws restricting abortion reduce women to “mere instrumentalities of the state” and “take diverse women with every variety of career life-plan, and so on, and make mothers of them all” (Tribe 104). Kant’s deontology view on autonomy can also be used. His belief that people are “able to decide a course of action on the basis of careful reflection and in the absence of coercion from authority or custom” allows women choose to abort their unborn child (Dooley and McCarthy 4). Autonomy is central in a pro- choice view.
Other principles, the principle of beneficence and non-maleficence can also be applied. The principle of beneficence which obliges health professionals to do good and the principle of non-maleficence which obliges them to do no harm and remove conditions that cause harm suggests that they have a duty do help pregnant women who seek abortion. While pro-life supporters might dismiss the burden of going through pregnancy as “a mere inconvenience,” pregnancy demands physical invasion and risk (Tribe 103). Chief Justic Rehnquist asserts that pregnancy entails “profound physical, emotional, and psychological consequences” (Tribe 103).
Medical risks can also be involved. The World Health Organization estimates that “approximately one-third of maternal deaths are due to complications arising from illegally induced abortions” (“Safety of Woman”). Following the principlism theory, physicians should be able to perform abortions and not force these consequences on women, especially on pregnant women who are suicidal, at risk of physical illness or pregnant because of rape or incest. Additionally, whether abortion is illegal in a country or not, women will still find a way to have an abortion. In Ireland, women frequently travel to England. Each year an estimated five to six thousand travel to England to seek abortion (Rossiter 36). In secrecy, women gather enough money to travel.
This process dubbed ‘Ireland’s hidden diaspora’ is “both shameful and demeaning for many Irish” (Rossiter 33). If a woman doesn’t scrounge up enough money, she might consider using illegal abortion procedures that could be unsafe. Under the principle of beneficence and non-maleficence, it will be unethical for anyone to force women to continue with pregnancy and possibly suffer the damaging consequences of it.
Another principle, the principle of justice, stresses treating people equally and fairly. However, restricting abortion prevents this. Professor Tribe argues, “laws restricting abortion so dramatically shape the lives of women and only of women, that their denial of equality hardly needs detailed elaboration” (105). While men are not restricted and have the right to sexual and reproductive autonomy the same cannot be said for women under bans or restrictions on abortion. Women can only achieve gender equality when she has the ability to undergo an abortion if she chooses.
Besides principlism, Utilitarianism and its focus on consequences that deliver the greatest benefit to the most people can also be applied in a pro-choice view. Utilitarians believe that the end justifies the means and themotive doesn’t matter. If so, women who choose to undergo abortion produce the best results. With abortion available, women won’t be at a health risk or have their body, education, employment, family, or life disrupted. The outcome of an abortion will give abortion seekers the complacency they desperately needed and this will extend to their family and friends. While there exists the unfortunate sacrifice of the unborn baby, the overall beneficial outcome overshadows it. Utilitarians favor a pro-choice view.
Lastly, with both sides thoroughly analyzed, I will finish off with my view on abortion. I believe strongly in gender equality and on the right of women to have a choice. Since I do not consider a fetus a person, I firmly believe that the freedom of choice outweighs the right to life of the fetus. While I understand the needs of restrictions on later stage abortions, I believe the state should not force women to go through pregnancy. To me, the choice should always belong to the women as it is her body and not the states. Additionally, I think the stigma associated with abortion should be removed. Women should not feel guilt or shame or the need to stay silent. Health professionals who perform abortions should also have the right to not to face discrimination. I am pro-choice and believe that reducing abortion stigma would help move forward the abortion debate.
