Monday, April 22, 2013

Free Will, Human Rights and Abortion Law in Ireland

Savita Halappanavar: her death has
prompted fierce debate on abortion
legislation in Ireland
The recent tragic case of Savita Halappanavar has re-focused the spotlight in Ireland on our anachronistic abortion laws.  In that case, Ms Halappanavar died from septic shock during a miscarriage, when she was prevented from having a termination despite her having requested on on a number of occasions.  One doctor went so far as to say it was highly likely that she would have survived had she been granted her request for a termination.

Alongside the timeline of these tragic events, the Fine Gael / Labour coalition government on the back of their Programme for Government had agreed to legislate for the X-Case.  In that case, a young girl who had been the victim of rape was deemed to have a right to an abortion if there was "a real and substantial risk" to  her life.  Crucially, that risk included the risk of suicide.  While the government, and the population generally, are of a view that the "real and substantial risk" test was appropriate, the question of suicide was for many a step too far.  Some argued that no one could clinically diagnose such a risk, that it was entirely within the gift of the woman herself to declare such a risk, and therefore such a provision would be wide open to abuse.

Over the weekend, it emerged that a Fine Gael position had been floated where suicide could be accepted as grounds where two obstetricians and four psychiatrists would have to agree in advance. Labour thought that was insane, and one 'leading perinatal psychiatrist' (there are apparently three of those in the country, so I guess we don't have any 'middling' or 'poor' ones) went so far as to call it abusive.

There is a fundamental and unspoken philosophical problem at the heart of all of this, and it is one which goes to the heart of neoliberal thinking.  At what point do we stop operating as a society or a group, and at what point do we begin operating as individuals?  Most of us have been raised and trained to think as individuals, in that late twentieth century quasi-aspirational, post-feudal thing, "you can be anything you want to be, if you put your mind to it!"  Each of us has our own personal freedom, our own capacity, into which the State shall not interfere, save in the protection of the rights of others, in the protection of the State itself, or in the enforcement of contract.

Leave aside for the moment the rights of the unborn child, which is in itself an ethical issue of some depth.  Much of the current discussion has focused on whether the mother can make a decision on her own accord, by herself.  In that state - pregnant and not wanting the baby, possibly miscarrying and wanting to give up hope for her child, hormonal (!) - is the woman in an appropriate state to make a decision?  I would argue that she is.

Presuming that some cabal of doctors can make the decision for her, can determine what her state of mind is, is abdicating to the state the freedom to think.  We cannot begin to presume to know more about what's in a person's mind, what's in a person's heart, when they are making these decisions.  To do so would be to create an entirely unacceptable principle that learned men (and possibly learned women!) are better served to dictate what is in some sense the objectively right thing to do.
"The institutionalized misogyny of the Catholic Church cannot now be allowed to reassert itself"
Now, on the one hand we have a similar principle established in our judiciary - as societies, we appoint people - and juries - to pass judgement on our fellow citizens in order that we determine an appropriate course of action should our laws be compromised.  But on ethical, quasi-religious ground the state should have no say.  That Ireland died with deValera and McQuaid, and that appalling righteousness that accompanied the vestments of authority.  The institutionalized misogyny of the Catholic Church cannot now be allowed to reassert itself so that Fine Gael might wrest one last election victory from the hands of senior voters who think that their Ireland of the 1950s is what we need right now.

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