Repeal of the equal protection currently recognised as being owed to the unborn child would open the door to a systematic injustice, whereby the law denies the most basic and essential protections to those fully deserving of such concern.
By Seán MacGiollarnáth, O. Carm.
Many advocating for the repeal of constitutional protection for unborn children say that they have been on a journey of discovery. Some public representatives have moved from declarations not to support abortion legislation to support for a wide-ranging abortion regime. Although not obviously a co-ordinated process, there has been a remarkable synchronicity in this significant shift in perspective.
Regina Doherty’s recent comments are indicative of the direction of this journey. Minister Doherty said that she had changed her mind on abortion, and the cluster of positions she now holds she identifies as follows:-
The Minister deserves a respectful response. It might be good to start with a penetrating question Pope Francis asked in Laudato Si. The question is addressed to a world in which the unborn child is so often treated as a product and as disposable. Pope Francis writes:-
“Since everything is interrelated, concern for the protection of nature is also incompatible with the justification of abortion. How can we genuinely teach the importance of concern for other vulnerable beings, however troublesome or inconvenient they may be, if we fail to protect a human embryo, even when its presence is uncomfortable and creates difficulties? “If personal and social sensitivity towards the acceptance of the new life is lost, then other forms of acceptance that are valuable for society also wither away” (Laudato Si, 120)
Pope Francis is clear that all babies are to be protected, and are deserving of respect. His comments suggest that our efforts to look after others may be futile or misplaced if we disregard the unborn. Our approach to the care of others, such as the sick, the homeless, our friends and relations, cannot radically neglect the unborn child.
The remarks of Pope Francis are the fruit of insight and experience, not just his alone but that of the Church and her pastoral mission of celebrating and protecting human life for centuries. A law permitting abortion will mean an enormous shift in the model of medical care offered in Ireland. Currently, obstetricians offer care for two patients. Given the legislative plans announced by the Cabinet, it is clear that a vote to remove Article 40.3.3 would mean that babies would have no effective legal protection for the first 12 weeks of their lives after conception, and that after this period, up to about 24 weeks, such protection would be conditional and insecure. Such a legal position is unjust to a baby, who has the same dignity and is due the same respect as his or her mother and father, and all of us. He or she is one of us.
With reasonable foresight, we can see that a law permitting abortion will serve as a cue to human behaviour. Law shapes and changes our culture and practices; a law permitting abortion will introduce the risk of seeing abortion as a solution to an unexpected pregnancy, or where the baby might be either mildly or severely handicapped. An attitude of appreciation and gratitude for the gift of life may slowly disappear.
The Minister’s remarks on being pro-women reinforce the need for great discretion and gentleness in speaking to, being with, and accompanying any mother, and indeed father, who face special challenges while awaiting the birth of their baby. Fathers can’t be ignored nor can they themselves ignore their responsibilities. It is possible to be discreet, gentle and sensitive with mothers and fathers while also fully respecting the truth and the obligation to be equally concerned with the care of the unborn baby whose life and health is also fully deserving of love and care. The work of agencies such as CURA and LIFE can reveal how this might be done.
Whatever journey the Minister has undertaken, there remains an obligation of justice, to give each his or her due. What of the unborn baby? Are we obliged to act justly towards babies? Of course we are. The scientific evidence is that our human lives began at conception, at which point there is an individual human organism. As Professor Jérôme Lejeune, the French geneticist, pointed out this is “no longer a matter of taste or opinion,” and “not a metaphysical contention, it is plain experimental evidence.” The Minister and others cannot ignore this scientific reality.
This organism, with its unique identity, will persist through the various points of development before birth, and after birth, to infancy, childhood, teenage maturation, adulthood, and so on unless it dies naturally. Protection from unjust attack is not unreasonable.
Minister Doherty says that she can’t make a decision for others in this matter. However, by voting for repeal of Article 40-3-3, we are making a decision which will mean that others will lose significant rights. The motivation for a vote to repeal may be to indicate tolerance or a wish not to impose oneself on others. The practical effect however is very different. It is the removal of all express constitutional rights for the unborn.
Suggesting that this is a religious position is to risk side-lining human biology from ethics and to confuse science and faith and disregards the biological data. We are, as Alasdair MacIntyre noted, ‘biologically constituted’ at every point of our development. It is certain that any expectant mother and the father of her baby will understand these matters clearly when it concerns their child, whatever their religious belief.
It is presumably clear enough that at some point of his development, the child acquires a right to protection in law from lethal action. Why? One reason, suggested by Don De Marquis, is that the loss of one’s life deprives one of all ‘the experiences, activities, projects, and enjoyments which would otherwise have constituted one’s future’. Given the vulnerability and dependency of the child, this is a question of justice. A law protecting unborn human life from all actions which would deliberately threaten his or her right to life is primarily a matter of justice, fully accessible to common sense and reason. Human solidarity is a precarious good. A law permitting procured abortion always threatens it.
If the 8th amendment is not retained, there will be no explicit constitutional and foundational legal obligation to act with justice towards the unborn child. The recent Supreme Court decision M v Minister for Justice and Equality made adequately clear that a repeal would mean that the unborn child would no longer be a bearer of rights under the Constitution.
Repeal of the equal protection currently recognised as being owed to the unborn child would open the door to a systematic injustice, whereby the law denies the most basic and essential protections to those fully deserving of such concern. The effect would be to undermine Ireland’s excellent model of care, where both an expectant mother and her baby are given full consideration.
The law is not simply an imposition of the will of the ruler (e.g. any large number of the members of the Oireachtas, or the Executive and their parliamentary supporters) but is intended to express equal concern for the rights of all members of the community. And, for Christians, each one of us is special and a thought of God, as Pope Benedict XVI said. In His providential care, God creates each and every human being and entrusts him or her to the care of the world, but first to the baby’s mother and father. There is nothing to warrant that innocent unborn babies be other than fully protected and equal to all others before the law.
Seán MacGiollarnáth, O. Carm.
Carmelite Friar and parish priest in Dublin, previously worked as a solicitor.