Abortion debate must focus on law

Colm Keaveney says serious issues raised by the proposed abortion bill are not being properly debated

THE public debate around the proposed Protection of Life During Pregnancy Bill has focused far too little on the contents of the bill but instead has focused on the general issue of abortion with the debate reduced to the usual exchange of slogans.

Legislators are not medical or legal experts but it is our duty to inform ourselves of the issues involved by listening to testimony from such experts, taking the views of those we represent into account and then coming to a considered judgement on the matter.

Any legislator considering the testimony given to two sessions in January and May before the joint Oireachtas committee on health cannot fail to have serious concerns with what is proposed. These concerns range from constitutional issues to issues concerning the welfare and right to life of both women and the unborn.

Checks and balances are an essential feature of democracies, where the errors or abuses of one branch of government may be corrected by another.

In this case the legislative branch has had the opportunity to listen to expert medical testimony — an advantage not enjoyed by the courts in the X case in our domestic courts or in the C case before the European Court of Human Rights.

What the weight of expert evidence testified to is that it is an error to believe abortion is a treatment for suicidal ideation. The appropriate treatment for such ideation is to treat the mental illness. Testimony from perinatal psychiatrists indicated that they had never come across a case where abortion would have been the appropriate treatment for a pregnant women presenting with suicidal ideation.

The bill fails to properly reflect the right to equality of women as it mandates that those suffering a non-psychiatric medical risk have that risk addressed, whereas it mandates no similar action to remove risks arising from suicidal ideation, mandating instead a treatment we are told to be inappropriate.

Further evidence given to the committee indicated the legislation as proposed could lead to the normalisation of suicide, posing a risk to vulnerable women and men in our society. Human rights are, rightly, now an essential part of the life and law of democratic states.

A criticism sometimes levelled at the concept and practice of human rights is that it can lead to a focus on the individual to the exclusion of questions of the collective good. However, legislators cannot ignore that collective aspect but must seek to balance them.

Head Four, which deals with abortion in cases of suicidal idea-tion, also contains serious defects as it fails to deal with developments in the X case test in later cases dealing with suicidal ideation.

One significant case in this regard is Cosma versus the justice minister (2006). The judgment in this case, one not reversed by the Supreme Court, identified conditions that needed to be met for establishing a real and substantial risk to life arising from suicidal ideation.

These conditions included, among others, that evidence of a treatment plan for a presenting psychiatric condition (the court in Cosma’s case took into account that the woman involved had not been undergoing treatment) and that other means of avoiding the risk had been considered. Head Four fails to include any aspects of this judgment and would fail the standard laid down by the courts.

In cases where the woman’s life is at risk, a medical action necessary to save her may be performed and in cases other than the risk of suicide, the heads of bill provide welcome legal clarity in that area.

However, one of the constitutional constraints on any legislation in this area demands that the equal right of the pregnant woman and of the unborn be respected. Yet it appears from the heads of bill that the constitutional life to right of the unborn will not be mentioned. Indeed the question of even attempting to achieve a balance of rights is explicitly discounted.

The lack of any time limits within the legislation restricting when an abortion may be carried out, allowing for the possibility of late-term terminations, is not something that I believe public opinion would be willing to approve, regardless of the constitutional arguments around same.

Of course, one response to all of the above would be to accuse politicians who raise these issues of only doing so to save their seats. Indeed this was the very tactic deployed by one supporter of the proposed legislation in a column in this paper on Wednesday last. The beauty of such a charge is that there is little that can be done to counter it that cannot be presented through the same cynical lens.

We have been told by many that legislation in line with X has massive popular support. Stating that the bill has popular support and that anyone opposing it is a populist cannot both be true at the same time.

This debate would be better served by people refraining from arguments made personally against an opponent and instead to engage with the substance of their argument.

- Colm Keaveney is Independent TD for Galway East