The proposed Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill is an unusual combination of constitutional amendment and legislation designed, according to the Government, "to resolve the unsatisfactory legal situation regarding abortion which has existed since the X case judgment".
The proposal effectively overturns the X case judgment, gives further specification to the right to life of the post-implantation unborn human being, and protects the woman's equal right to life by excluding from the scope of the term "abortion" any necessary medical treatment for her which might lead to the unborn child's death. It is a very substantial advance on the current legal situation. Given current political and cultural factors, those concerned to protect unborn human life should accept it.
However, some pro-life people object vehemently to the proposal and call for its rejection. Objections include: (1) it is incorrect to define "abortion" as applicable only after implantation; (2) it withdraws protection from pre-implantation unborn human beings; (3) it gives far too much discretion to doctors with respect to treatments which might endanger the unborn.
As regards (1), there are four points to be made. First, the proposed definition of abortion is purely legal. The fact that it may differ from the philosophical, medical, or dictionary definitions is irrelevant. To specify a category of action as criminal requires determining precisely the kind of behaviour to which the word "abortion" refers for the purpose of this legislative instrument. All law-drafting requires such definition, and there is nothing morally problematic with that.
Second, one cannot, legally or philosophically, infer from the definition a specification of when life begins.
Third, where a certain type of action is to be deemed criminal with sanctions attached, the law must define it in such a way that instances can be proved in court beyond reasonable doubt. Thus, the traditional legal definition of abortion put it in terms of induced miscarriage, which is (generally) an event for which there can be clear evidence. This is not the case with abortifacient actions occurring prior to implantation.
While one can hold that such actions are immoral, they are not in the individual instance determinable in the way that the criminal law requires. Selling certain types of object (such as the morning-after pill) could be banned; but the offence involved would not be that of procuring an abortion. Accordingly, it could not be included in this particular proposal.
Fourth, the recent development of in vitro fertilisation means that the destruction of many pre-implantation human beings could not possibly be treated under the legal heading of abortion. Full protection is needed for all such lives; but it is matter for a different piece of legislation. To demand that all of these be lumped together is to confuse law with ethics, to overlook important legal technicalities, and to perpetuate just the kind of vague generality and uncertainty in the law that the X case judgement revealed so starkly.
As regards (2), while the proposal gives no protection to the pre-implantation unborn, neither does it take away any protection they already have, and the general principle enshrined in Article 40.3.3 of the Constitution that the unborn have an equal right to life still stands. In voting for this proposal, one is not (contrary to what some critics claim) voting against protection for pre-implantation unborn, since the proposal does not concern them.
Nor are there any grounds for the odd idea that accepting the government's proposal would somehow block the introduction of legislation giving further legal protection to pre-implantation unborn. In fact, given the political context, the opposite is nearer the truth.
Turning to objection (3), the fear is that doctors will regularly kill unwanted foetuses under cover of "real and substantial risk of loss of the woman's life", so that the law will be abused.
Certain elements in the government's proposal could meet this concern. Section 2 (2) of the Second Schedule states that "a person shall be presumed to have intended the natural and probable consequences of his or her conduct, but this presumption may be rebutted". When medical treatment for the woman has the effect of killing the unborn child, there should presumably be a forum to which the doctor may be asked to rebut the claim that he or she intended that death.
The obvious mechanism of accountability is the coroner's function. The death of an unborn child as a result of medical treatment should be treated in the same way as the death of any other person arising from a medical operation, requiring the same reports and notification of the coroner's office, as stipulated in the Coroners' Act 1962 and elsewhere.
The general principle of equality of treatment, a feature of the Equal Status Act 2000 as of the Constitution's Article 40.3.3, indicates the appropriateness of requiring such notification.
As with other deaths arising from medical intervention, the coroner's office normally will not pursue the matter, once a proper report has been filed.
However, if a particular maternity hospital or particular surgeon appeared to file an unusually high number of such reports, the coroner could initiate an inquiry.
Since the government's proposal allows the Minister to make appropriate orders with respect to keeping records of such instances (section 5), the Government could reassure people by indicating now that the Minister will in due course make the appropriate orders requiring notification of the coroner's office in the event of an unborn child's death.
Overall, the Government's proposal is a shrewd balance of the morally desirable and the practically feasible. It ought to be accepted.
Dr SΘamus Murphy SJ is senior lecturer in philosophy at Milltown Institute