From Whom is all Authority and to Whom as Our Final End: The Influence of Thomistic Philosophy on Contemporary Abortion Law in Ireland

It’s fascinating; much of the literature on the legal issues surrounding Irish abortion law begin by addressing the staunchly Catholic nature of the Irish Constitution (Bunreacht na hÉireann), of which it’s Preamble reads:

In the name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred, We the people of Eire, Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial, Gratefully remembering their heroic and unremitting struggle to regain the rightful independence of our Nation, and seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations, do hereby adopt, enact, and give to ourselves this Constitution.” IR. CONST. pmbl.

The framers of the Constitution aimed to establish an Ireland centrally based on a Catholic world view and specifically concerned with securing human dignity through the protection of fundamental human rights- as they are understood in the Thomistic tradition of natural law doctrine. See Dermot Keogh, The Irish Constitutional Revolution: An Analysis on the Making of the Constitution, in THE CONSTITUTION OF IRELAND: 1937-1987 (Frank Litton ed., 1988). “Rights were seen as a necessity of free moral action but also understood in the in the overall context of the common good. And both were seen as part of a larger natural order, the order of God’s creation.” V. Bradley Lewis, Natural Law in Irish Constitutional Jurisprudence, 182 Catholic Social Sci. Rev. 171, 173 (1997). In accordance with the Thomistic understanding of natural law, the legal order of Ireland has for a long time considered practices found to be morally sinful by the Roman Catholic Church to be illegal; the prime example being abortion. Dorota A. Gozdecka, Moral Obligation of the State or a Woman’s Right to Privacy? (April 2009).

Although the Fifth Amendment removes from the Constitution the “special position” of the Catholic Church, Catholic social doctrine continues to pervade contemporary Irish abortion law: Sctions fifty-eight and fifty-nine of the Offenses Against the Person Act 1861  criminalize abortion in all circumstances. Under this Act, however, a woman who “procure[s] a miscarriage” is subject to life imprisonment. Those who assist the procurement of a miscarriage are subject to a prison sentence of up to five years. Approved by referendum in 1983, the Eighth Amendment introduced a Constitutional ban on abortion, wherein the right to life of the unborn became constitutionally protected. IR. CONST. amend VIII (“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”).

By further Amendment, there became a very narrow exception to the ban on abortion; that is, where the life of the mother is in immediate danger. But what constitutes ‘risk to life’? In 1992, a fourteen year old girl of the pseudonym “X” became pregnant after being raped by the father of a friend from school. Accompanied by her parents, X traveled to London where she could legally obtain an abortion. Prior to leaving, X’s father contacted the police to inquire whether a forensic evidence should be preserved for a prosecution of rape. The Attorney General promptly secured a Court Order prohibiting X from attaining an abortion or traveling outside of the country for nine months. X became suicidal.

On appeal, the Irish Supreme Court overturned the lower Court’s Order and allowed X to travel to London for an abortion. An excerpt of the Opinion follows:

Such harmonious interpretation of the Constitution carried out in accordance with concepts of prudence, justice and charity . . . leads me to the conclusion that in vindicating and defending as far as practicable the right of the unborn to life, but at the same time giving due regard to the right of the mother to life, that the court must, amongst the matters to be so regarded, concern itself with the position of the mother within a family group, with persons on whom she is dependent, with, in other instances, persons who are dependent upon her and her interaction with other citizens and members of society. . . .

Having regard to that conclusion, I am satisfied that the test proposed on behalf of the Attorney General, that the life of the unborn could only be terminated if it were established that an inevitable or immediate risk to the life of the mother existed, for the avoidance of which a termination of the pregnancy was necessary, insufficiently vindicates the mother’s right to life.

I therefore conclude that the proper test to be applied is that if it is established as a matter of probability that there is a real and substantial risk to the life — as distinct from the health — of the mother, which can only be avoided by the termination of her pregnancy, that such termination is permissible, having regard to the true interpretation of Article 40.3.3 of the Constitution. . . .

With regard to this issue, the findings of fact made by the learned trial judge in the High Court are as follows: When the defendant learned that she was pregnant, she naturally was greatly distraught and upset. Later she confided in her mother that when she learned she was pregnant, she had wanted to kill herself by throwing herself down stairs. On the journey back from London she told her mother that she had wanted to throw herself under a train when she was in London, that, as she had put her parents through so much trouble, she would rather be dead than continue as she was.

On Jan. 31, in the course of a long discussion with a [ police officer ], she said: “I wish it were all over; sometimes I feel like throwing myself down stairs.”

On the day of her return from London, the defendant’s parents brought her to a very experienced clinical psychologist. He explained in his report that he had been asked to assess her emotional state, that whilst she was cooperative she was emotionally withdrawn, that he had concluded that she was in a state of shock and that she had lost touch with her feelings.

His opinion was that her vacant, expressionless manner indicated that she was coping with the appalling crisis she faced by a denial of her emotions. She did not seem depressed, but he said that she “coldly expressed a desire to solve matters by ending her life.” In his opinion, in her withdrawn state “she was capable of such an act, not so much because she is depressed but because she could calculatingly reach the conclusion that death is the best solution.”

He considered that the psychological damage to her of carrying a child would be considerable, and that the damage to her mental health would be devastating. . . .

In my view, it is common sense that a threat of self-destruction such as it is outlined in the evidence in this case, which the psychologist clearly believes to be a very real threat, cannot be monitored in that sense, and that it is almost impossible to prevent self-destruction in a young girl in the situation in which this defendant is, if she were to decide to carry out her threat of suicide.”

Excerpts From Statements: How Judges Reasoned

Reacting to this decision, anti-abortion groups quickly proposed a constitutional amendment explicitly excluding suicide as a risk to life exception to the prohibition on abortion. While this proposed amendment ultimately failed, the fact that such a proposal gained as much traction as it did really makes a statement about the views of abortion in Irish society. However, on the same day, the Thirteenth and Fourteenth Amendment were approved by referendum. Under the Thirteenth Amendment, the laws prohibiting abortion are not to be construed so as to limit freedom of travel in and out of the state. Under the Fourteenth Amendment, there shall be no limit on the freedom to obtain or make available information relating to services (abortion) lawfully available in another state. Bunreacht na hÉireann – Constitution of Ireland.

While progressive these laws may seem, tough economic conditions render access to abortions nearly impossible for those without means to travel abroad. More Irish Women Seeking Help for British Abortions, says Charity. plus ça change, plus c’est la même chose.

 

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