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Abortion, disability and law: notes from a conference

A conference on the topic of ‘Abortion, Disability and the Law’ was held in Athlone last Friday. It was jointly hosted by the Anscombe Bioethics Centre in Britain, and the Consultative Group on Bioethics of the Irish Catholic Bishops’ Conference. The subject matter could hardly have been more topical because it is precisely the lives of disabled unborn children that are most under threat if we repeal the 8th amendment.

The papers delivered at the conference covered the ethical issues at stake in this debate, the law, the experience of people who have given birth to babies with supposedly terminal conditions, as well as the mental health aspects of abortion.

What follows is a summary of the paper made available on the day.

In his address to the conference, the Bishop of Elphin, Kevin Doran, noted the positive change from talking about ‘disabled people’ to speaking instead of ‘people with disabilities’. He said this new, more people-centred way of thinking about disability was codified in the 2005 Disability Act. Given all that, he asked, “why would we accept discrimination against unborn people with disability, simply because of their disability?”

Turning to pre-natal diagnosis, the Bishop said that while such tests can be employed for good purposes, increasingly, they are used “as a means of screening out babies who, in the eyes of adults, should not be brought to birth”. When those tests are used in such a way that they lead to what amounts to a death sentence for the child, they are gravely immoral.

Moving on to doctors, nurses and all who work in healthcare, he noted that their fidelity to a well-formed conscience is important, not only for the well-being of their patients, but also for their own integrity. That integrity requires them to prevent and heal illness and care for those who cannot be healed—it never involves “intentionally bringing about the death of the patient, either by some action or by failing to act”. A conscientious objection to such actions has the noble significance of “a social denunciation of a legal injustice that is being perpetrated against innocent and defenceless lives”. It is also a reminder that healthcare workers are not simply delivering a service to customers, but have a truly “personal” investment in a profession as “healer” and “advocate for life”.

In his address, Professor of Law at Trinity College, Dublin, Gerry Whyte, argued that a simple repeal of the Eighth Amendment would not take us back to the constitutional position on abortion that obtained in 1983 prior to the enactment of Art.40.3.3. On the contrary, “the explicit decision of the People to remove constitutional protection from the unborn”, would itself be a new element that would have to be taken into account by the Oireachtas and the Courts in deciding whether any limits could be imposed on a right to an abortion. After all, repealing the amendment “removes all constitutional protection from the right to life of the unborn”, and not merely its equality with the right to life of the mother.

The latter could be achieved by simply deleting the word “equal”, but repealing the whole article removes the right to life of the unborn entirely. Consequent to repeal, the only way to assert a limit to abortion would be to read the decision of the people as subject to natural law rights of the unborn; but that argument was explicitly rejected by the Court in 1995. In sum, the simple deletion of the Eighth Amendment “will have to be interpreted as an unqualified decision to remove constitutional protection from the unborn”, and then any subsequent legislation that imposed any limit on abortion would run the risk of being struck down for imposing an unconstitutional restriction on the mother’s right to an abortion.

Dr Helen Watt, Senior Research Fellow at the Anscombe Bioethics Centre, spoke on “reducing harm without moral compromise”, dealing with the ethics of legislators framing laws and regulations on abortion. Beginning from the premise that all equally have the right to immunity from lethal attack, and abortion for fetal impairment especially causes the mother anguish and complicated grief, she asks how we can justify moves to protect some from abortion but not others. She first distinguishes legislation from regulation. Bills or amendments that make a current law more restrictive run many risks but might be morally licit in principle, though it is better to be explicit about who may not be aborted (Down Syndrome children for instance), rather than to select who may be aborted.

Regulation, on the other hand, by which is meant not just setting up a ‘regulatory body’, but any legislation that tells people how to prepare for or perform an abortion should always be morally excluded. By the principle of complicity, we may never intend a wrongful choice by another, any more than by ourselves. Likewise, preparing for a wrongful act is itself also wrong, and “counselling or mandating the ‘lesser evil’ is something that has to be avoided”.

Even with the noblest of motives, it is important to remember that “Good ends must be sought by good means only, and never by bad means”, and those who are straining to uphold human rights, even for the most vulnerable and unprotected members of our society, should never act contrary to this maxim.

(Note: There was other talks delivered on the day but they have not been made available in printed form yet).