This post started as a thread on Lawyers for Choice Twitter, where in a moment (an hour and a half) of frustration I decided to debunk the No campaign booklet that was handed out to 200,000 houses and contained inaccuracies on every page. I had also been working on a post debunking No posters, but some of the same inaccuracies turned up all through the No arguments – so I’ll update this post as I go and appreciate any submissions you’d like investigated by a very tired academic human rights lawyer.
That’s my stall set out. Now for the substance.
This booklet, as seen here in its entirety, was handed out with only the tiniest acknowledgement that it was from a lobby group rather than a State entity. Take note of the colour, and the official language – “information on the Government’s proposals”. This is not a Referendum Commission booklet. It has never met a Referendum Commission booklet. It is funded by an anti-choice lobby group who, and this may not surprise you, are difficult to find information on. We’ll get back to that later.
Page by page, here’s the actual legal facts and sources of what’s alluded to in this booklet.
First up: “The 8th is the only place where unborn babies have constitutional rights.”
The 8th is the only place where an explicit right, ie the right to life equal to that of the pregnant person carrying them, is granted to foetuses. The M v MJELR case says that there are no other provisions applying to foetuses in the Constitution – for various reasons explained in the last section of my case note on M – in particular, that citizenship on which rights are based is a status that inheres in born persons. However, even within the judgment in M, and reflected through the way that all states deal with reproductive rights, is an awareness that even if the foetus does not have explicit rights, that does not mean there is no value in its existence. The reason why we have regulations on abortion is that we do value the existence of a foetus and its potential to become a full person endowed with rights. It is possible to respect that value, as indeed the pro-choice lawyers in this campaign also do, but to also respect the prioritisation of the living person in the case.
The next excerpt informs us that a Yes vote would “[give] the Oireachtas total control to make laws on abortion… without the need to refer to the people”.
In order to deal with this one we need to look at the Constitution a bit. Article 15 deals with the Oireachtas and its powers. Article 15.2 gives the Oireachtas the right to make legislation on whatever topic it may desire, provided it is Constitutional (as dealt with by Article 15.4). So the Oireachtas already has the right to make laws on abortion without asking us all – it’s just constrained by the 8th in such a fashion that it currently cannot legislate any differently than it has in the Protection of Life During Pregnancy Act 2013.
Also, we’re “referred to” frequently to cast judgement on the Oireachtas. What’s a general election if not that? It’s the greatest diplomatic power we have.
“If you repeal the 8th, this Bill [meaning the draft legislation] will be enacted as the law of the land.”
It might. But it’s not a guarantee. The draft legislation won’t automatically be passed by the Oireachtas in its current form. It’s a draft. It needs serious development.
What happens immediately on Repeal is that the PLDPA become the de facto law on abortion in Ireland. The PLDPA exists independently of the 8th – it doesn’t disappear too. And we have a long, long series of potential Oireachtas debates that will shape any new legislation being brought in. The Oireachtas could end up with a version more restrictive than the draft, rather than more liberal – it’s up to the TDs and Senators, and therefore, ultimately up to us to vote for people who represent us.
“This Bill transfers control of regulating abortion from the Constitution to the Oireachtas…”
No, it doesn’t. The Oireachtas retains the power it currently has, and has always had. It’s just more free to be creative in legislating than it is now.
The way legislation and the Constitution work is like this: You’re decorating your house. You can do whatever you like to it, provided your housemates agree. However, if your ceiling is 8 feet high, you can’t fit a 10 foot Christmas tree into the room.
The Oireachtas makes laws. It can do what it wants, provided it can pass the laws. However, if something in a new law contravenes the Constitution, they can’t vote it into operation – because the Constitution acts as a legal ‘ceiling’ that is the highest source of law in the country. When we amend the Constitution, we amend the terms on which the Oireachtas works (raise or lower the ceiling), but we don’t change its fundamental powers.
“Abortion will be legal for any reason up to 12wks.”
Yes. Bringing us in line with our international peers and ensuring that we live up to our human rights obligations.
“If it’s inconvenient, if it’s a girl and not a boy, if the timing is wrong…”
If you’ve been raped, if your partner is abusive, if you’re on vital medication contra-indicated for pregnancy…
If you’re not an illogical misogynist you’ll think of those too.
“Abortion up to 6 months on vague “health” grounds.”
No. In the draft legislation, and in terms that are likely to stay in legislation, there must be the agreement of two doctors that there is a risk to the life or serious harm to the health of the pregnant person if an abortion is not performed.
It’s not vague. It puts the power of medical decisions in the hands of medical professionals, who are qualified and who should have this power. I’m a lawyer – I don’t want to tell a doctor how to do her job.
“Perfectly healthy babies can be aborted on these grounds.”
Yes, because perfectly healthy pregnant people can be killed by prioritising a foetus over them due to doctors’ fear of criminalisation and 14 years in jail if they act in a potentially illegal manner.
Just to note, the draft legislation does not mention the status of the foetal development in its terms, as it focuses (as it should) on the pregnant person. The foetus could be developing abnormally or not, but if the pregnancy is at risk of seriously harming the pregnant person, theirs is the interest that is prioritised.
“Repealing The 8th Amendment Removes All Constitutional Rights From The Unborn.”
Lawyers For Choice Still Repeating That Lawmakers Consider There To Be An Interest In Foetal Existence And Will Legislate Accordingly, Like Everywhere Else.
“If you abolish the 8th politicians will have a blank cheque to introduce even more liberal laws without consulting the people.”
Or they could choose to leave the PLDPA in operation and do nothing. They could choose to discard the findings of the Oireachtas Committee and bring in rigid grounds-based legislation. This fear works both ways.
And the people are consulted, frequently, via elections. That’s how representative democracy works. Democracy seems to be an unfamiliar concept to the writer of this booklet.
“Unborn babies at all stages during pregnancy will have no constitutional rights, and you will never have a say on this again.”
The first half of this sentence we’ve dealt with; the second half is possibly the most ludicrous thing in the booklet. Of course we can have a say on this again. We can hold another referendum. How do you think the 8th got there in the first place? You can make the Constitution stricter also by referendum. You can have two on the same issue – remember the suicide-as-a-ground referendum do-over (and rejection)?
This is blatant scaremongering and, as a legal educator, offensively wrong.
They go into the consequences of a No vote next, and there are several paragraphs here.
“You retain the power to decide such matters in the future…”
No, you don’t. You get to elect politicians and they get to make the law, except they’re bounded by the Constitution and therefore powerless beyond that.
“Abortion on demand will not be legalised…”
… sorry, migrants, rape survivors, people in disadvantaged circumstances…
“…and late term abortions will not be carried out in this country.”
Except under the PLDPA if necessary to save someone’s life. Like right now.
“Both mother AND baby will continue to be protected…”
That’s great comfort to Ms’ X, Y, A B & C, D, P, Michelle Harte, Savita, and everyone else who’s been ‘protected’.
Also, full personhood for babies inheres at birth. We’re talking about foetuses.
“Abortion clinics will not open in Ireland and we will protect vulnerable women and children with disabilities from the abortion industry.”
This one stumped me, and I’ve been talking about this stuff for years.
Let’s try parse what I think it’s trying to say.
Abortions can be provided in existing medical facilities. It’s not a whole national infrastructure scheme we need, just training for medical professionals.
And the “abortion industry” is a new one on me in this debate, although I believe it turns up a lot in American anti-choice discourse. It doesn’t exist, though. So we’re all on the same page.
For “children with disabilities” in that statement, read “foetuses developing abnormally”, I’m guessing, because currently children with disabilities who become pregnant as a result of sexual abuse have to get the ferry like everyone else. We do not protect disabled people under our abortion regime. We make them more vulnerable. Co-opting their experience to describe a non-sentient developing foetus is unacceptable.
The “Plan for Life” on the next page has some good ideas that should be policy – free childcare, financial support – and some that are irrelevant to the question at hand – “a new state adoption agency”. However, nothing in it helps someone who’s pregnant and doesn’t want to be. Adoption, as the saying goes, is not an alternative to abortion. It’s an alternative to parenting.
“The new legislation proposed by the government is almost identical to the Abortion Act 1967 in force in the UK.”
No it’s not:; the Irish draft legislation https://health.gov.ie/wp-content/uploads/2018/…/General-Scheme-for-Publication.pdf vs the British Abortion Act 1967 https://www.legislation.gov.uk/ukpga/1967/87/contents. Also, important to remember – the ’67 Act is not in force in Northern Ireland. It’s in force in Britain.
“90% of all babies with Down syndrome are aborted.”
No they’re not, please see here: http://www.thejournal.ie/factcheck-babies-abortion-3823611-Feb2018/
And for goodness sake, stop using people with Ds as your argument when you’ve been specifically asked not to by Down Syndrome Ireland. I am not sure what would drive a lobbyist to do something so blatantly against the will of the community they’re claiming to be vindicating, but this is where this debate has gone. It’s unfair and it’s victimising disabled people, not helping them.
“The number of abortions ‘skyrocketed’ in the 5 years post-67 Act.”
No, all we can say is that the number of safe, legal abortions rose in those years. We don’t know how many people sought unsafe means before that.
Abortion rates in England and Wales in the last decade or so are declining or holding steady: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/679028/Abortions_stats_England_Wales_2016.pdf
The next page is about cancer treatment in pregnancy. It says that a doctor can immediately start chemo on a person diagnosed with cancer then adds “while also doing everything possible to also save the life of her baby.” But if the treatment, even if it is the only treatment available for that kind of cancer, would harm or stop the foetus’ development, it would not be lawful to administer. Therefore, that qualifying clause undermines the rest of the page. It is, unsurprisingly, not bold-text.
Next page is “What doctors say”. I’m not a doctor, so I won’t try to contradict them myself, but I can get you about 1300 people who are Doctors for Yes. Some of the most prominent have video testimonials on that page that are absolutely worth watching.
The last page begins by saying “Abortion is NOT healthcare.
However, the World Health Organisation says that “Yes, it is.”
“Ireland is one of the safest places in the world to have a baby…”
I’m going to just point you to this post where I’ve already laid out the figures on this.
“Top Irish obstetricians testified that pregnant women received any life-saving treatment they needed…”
Pregnant people need more rights than just bare existence. Not being dead shouldn’t be the standard that we aim for. Stories like Savita’s show how hollow this promise is. How near do you have to get to dying to qualify to have your life saved?
“In England 90% of all abortions are performed on healthy mothers, ending the lives of healthy babies.”
In 2016 97% of abortions in the UK were performed under Ground C of the Dept of Health’s HSA1 form, which states termination is permissable if “the pregnancy has NOT exceeded its 24th week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman”.
Can you describe “going to the doctor, scared, on the brink of your health being seriously harmed” as “healthy”? How much empathy do you have to lack to do so?
And lastly, “the lives of healthy babies”, or “existence of normally-developing foetuses”. There is no grounding for this. None. I can’t stress that enough. Why? 2% of abortions in England and Wales in 2016 were specifically on the grounds of foetal anomaly. (That’s Ground E of your HSA1 form.) The rest were performed specifically for reasons involving the pregnant person, not the foetus.
92% of abortions were carried out under 13 weeks, which is too early to know whether or not the foetus has many anomalies. As statistics goes, it’s Schrodinger’s pregnancy – we do not know their state. However, counting them all as “healthy” has an almost zero chance of being correct and is not a legitimate grounding for a claim like this.
As I like statistics and use them correctly, I can link you to my source – the UK Department of Health annual reporting, correct as of June 2017.
So here’s the crux of the matter. This booklet has all along not indicated that it was written by a lobby group. It contains misleading information under a veneer of nice graphic design and outright pretense to legitimacy. If you’re reading carefully, you’ll note that once or twice it’s ‘sourced’ things to anti-choice campaign websites, but there has been no indication as to authorship. The last page of text contains an indication of sorts. Here’s the picture:
See that tiny line of text at the very bottom, stuck under a footnote? There’s your attribution, such as it is.
If those are the organisations that sponsors ‘include’ – which organisations are being omitted? Who wrote this booklet? Who are the Coalition Against Abortion on Demand and which groups are gathered under that umbrella? Who is financing them?
Why, if you are working legitimately, would you hide this information? Will they release it if requested?
So that’s the booklet. I’ll update this post later with rebuttal on the posters. For now – go forth and footnote, fellow legal pedants!