The National Party and the Right to Life
For some reason the advocates of repealing the Eighth Amendment to the Irish Constitution which guarantees the equal right to life of the unborn child with his or her Mother, enacted in 1983, would like to begin right there in 1983 or very shortly before it anyway. It’s credible that part of the reasoning is that the proposition itself was rather grubbily handled in a period of political instability and so to begin here is to initiate the conversation within the context of a hide-bound principle being subjected necessarily to all that comes with practical political action. The grubbiness of its proposition tells us nothing useful about either the Amendment or the issue, only that there are some flaws in how law is made, but to frame the debate is to bias the debate and that will do the repeal crowd just fine.
Any alternative starting point would be equally random, as would be identifying the philosophical issue at the core of the Amendment. Is it about abortion? Well yes and more. Is it about the right to life? Well yes, but it’s hardly an all-encompassing answer. Is it about law? Again yes, what it can do, what it can’t do, what it simply declares concerning human ideals in interaction with human realities, but if it’s a law it’s an incomplete one.
If we’re just talking about killing children and doing so either legally or under legal requirement we can go all the way back to the early Roman Republic and in particular the Twelve Tables, a very rough equivalent of a modern Constitution and in particular the provisions in Table IV under the heading of the broader law and tradition concept of Paterfamilias. Paterfamilias was a real patriarchy writ large, “A Handsmaid’s Tale” is a third wave feminist utopia by comparison. Among the many rights granted to “the Father of the Family” the most relevant to current discussion would be ‘jusvitae necisquepotestas’, literally the power of Life and Death over any and all members of his household, and indeed the obligation to choose death in the case of a severely handicapped child. About as late term an abortion as you can imagine.
The Father, Roman Law supposed, could only have the best interests of his family at heart, and would know more intimately well their real life situation, more certainly than, say, public opinion or restrictive law. And, certainly he would choose better, having sought expert advice, than the application of an abstract principle. It was a right not generally availed of since public opinion regarded its use as vile, and while in law the Pater could claim such a right, in practise any who did so were thoroughly despised, still further as Rome became more civilised. It is unclear when or even whether the law was eventually revoked entirely, but it didn’t last.
If there is an argument that explains why we have not simply replaced Paterfamilias with Materfamilias, I have not heard it, and if there is an argument that explains how it is less vile when exercised by a woman than by a man, it surrounds the nebulous difference of term limits and whether “bodily autonomy” is really a superior concept to “family autonomy” when it comes down to the line of taking innocent life by free choice. It is about the substance of when one person’s life becomes subject to the discretion of another. This comparison, admittedly suffers from the flaw of being archaic, and the advocates of repealing the Eight Amendment, having not referenced Materfamilias explicitly will deny it. So we must be modern of sorts so they of little intellect may have some chance of keeping up.
The legislation covering abortion was up until 2013, the Section 58 of the Offences Against the Person Act 1861. It has reached a point close to faith among abortion advocates that this Law had been introduced as part of a wave of puritanism across the world and that it took until 1861 indicates that up until then there was a widespread tolerance for and “understanding” of abortion. As with most articles of faith within the death culture this is pure make believe. The reality is that Parliament in the UK as with parliaments around the world reacted with glacial slowness to the reality that abortion, through surgery rarely, but abortifacient more usually, was even happening at all. It was pardon the dark pun, inconceivable, that just because the means were becoming more widely available at the turn of that century, that the occurrence of such a vile practice might more widely ensue.
There accompanies this a side argument, absurd in itself, that because there was some theological debate in medieval times among Christian, by which then meant exclusively Catholic, scholars concerning the “moment of ensoulment” that this too represented a debate on, or even a tolerance of, abortion. In fact the Church had always taught that humanity began at conception, that abortion was a grievous sin, and therefore the issue of ensoulment was debateable within the intellectual safety of being a purely academic exercise.
There were no laws in place throughout the Western World to criminalise or even to attempt the prevention of abortion because it seemed so utterly unbelievable that anyone would do such a thing. If this seems ridiculous with hindsight, so too will the idea that parliaments around the world removed prohibitive laws so quickly and almost in unison in the mid 20th Century.
And so we came to Roe vs. Wade, the infamous United States Supreme Court decision of 1973 which, without the necessity of elaborating detail, declared that the child in the womb was not, within the meaning of the 14th Amendment, a “person” and since the mother clearly was, that she was to be given Materfamilias in the first trimester, limited only slightly in the second, and not expunged entirely in the third. It is worth noting that it was the State which had an increasing “interest” in the life of the foetus and not that the foetus’ rights as such were acknowledged as gestation progressed.
Feminists, or indeed anyone, should not rely on this too much; a court that has the power to declare non-personhood has unlimited power and there is no reason why a court so empowered could not have as easily decided, leaving aside social and political pressures, that the mother was not a person and that the unborn child was.
Other countries have enacted other laws concerning abortion, and indeed some of the States of the US had legal abortion before this SCOTUS decision, but I would contend that it’s uncontroversial to say that Roe vs. Wade is central to the Irish debate on abortion for two reasons. One, the language, “personhood” “privacy” “choice” “autonomy” etc. which is all pervasive among repealers finds its origin here, and while there was almost no possibility of an Abortion Act similar to the British one being introduced in Ireland in the 1980s, the Pro-Life Amendment Campaign was directly a response to the very real fear that an Irish Supreme Court might follow the American case. In a debate about which little is agreed the predominant role of Roe would seem to be the one thing.
That American ruling has been in place and enforced now for nearly five decades and under it more than 1.6 million American babies (just not persons) are killed every year. The issues it has raised and the efforts both to defend and limit it have grown complex over the years both in philosophical argument and in political discourse. How extraordinary then that though it has always been the “end-game” of Irish abortion advocates their own thinking, leaving aside altogether subjectives like morality, has been so very shallow. Stupid even.
So very stupid, that they have very nearly won. They have been opposed with arguments so very subtle at times and so deeply researched in others that they have relatively quickly overawed that opposition and as this is being written we are within months of a referendum which would in the first instance Repeal the Eighth Amendment and usher in legislation which thus far looks likely to go at least as far as the American law. In theory, if not in practice, very much further than the British ’67 Act which Irish women are supposedly rushing in great numbers annually to avail of and is, if only it were closer to hand, the apparent solution to all problems. As this is written there is too, if opinion polls are to be believed, a majority in favour of Repeal and a narrower but still substantial majority in favour of the legislation.
The Eighth Amendment is itself quite simple, and logically unassailable, in itself, argued of itself. It reads “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”
There was a time, and not so very long ago, that the forces of what we can reasonably call life and death on abortion lined up on two logical arguments.
The death side, in denial of who they were, said that the child in the womb was not a child, and insofar as it was human it was human in the way a finger is human, technically, in part, and not wholly so. It was not a human being certainly, it was perhaps a “potential” human being. In popular phraseology it was “a clump of cells” and definitely not a “person”. The mother of the child then was the only whole human being involved and the only person to be considered. In short abortion killed no one and should be not only legal but as freely available as any other surgery. There is a premise that has to be accepted here, but having been accepted the conclusions are logical enough.
The life side begins with an opposing premise, that the child in the womb is, was and could only be, whole and entire as a human being and insofar as it mattered after that it was a “person” too, but the distinction was irrelevant. Which it is? This is the side the National Party is on, not by choice, nor vote, nor ideology, but fact. While the humanity of the unborn child might have been arguable in public discourse in the 1960s and 70s, the scientific capacity to see and know what is taking place in the womb during gestation has advanced to the point where the development of the child demonstrates its humanity in the earliest stages beyond reasonable doubt. Including specifically the much argued “when does human life begin?” DNA which says conception, not as an opinion but as a fact. Proceeding from the premise established, the conclusions were and are logical too, made only to seem within the realm of opinion.
If the foetus is a human being, whole and entire, separate from but obviously dependent upon his/her mother, the woman, then it has rights. Insofar as we accept there is such a thing as human rights and we do. The most fundamental right being the right to remain alive, without which there is little point in having any others.
Then there was, and still is, the murderous middle ground. They grant that the “unborn” have some right to life, they grant that this begins somewhere during pregnancy, but then they mix and match the why and the when. And inevitably they end up fixing arbitrary dates on an arbitrary right. Note that they concede, as they must, that the child does not become a human being, a person, during delivery. Note too that they refuse to be drawn on what the earlier time might be or even if it matters at all. But they fix in law a date before which the child has no right to life or a very limited one and thereafter various dates on which that right becomes more effective. Where they get these dates from no one knows. How they decide when the circumstances of conception or the health of the infant affect the equation of humanity, know one knows either. In short the most unreasonable people of all are to be found in the “reasonable middle ground”.
In more recent times, disturbed by the fact that it is no longer credible to deny the development of the unborn child in the womb, and wanting abortion on request full term (Roe) the issue of personhood has been pushed further to the front by the death side. In particular the advocates of Repealing the Eight Amendment have made their argument, not on the un-humanity of the foetus but rather on the basis that a human being might have different rights at different stages of life. It’s impossible to imagine where this argument will end up, in the sense that what they are saying is strictly undeniable, that a fully grown woman is more “developed” than a foetus and consequently while there might be some argument about humanity the crucial issue is whose humanity is worth more and should therefore be protected more. They conclude quickly in the context of the Eighth Amendment that the unborn cannot have an equal right to life to the mother, being less developed, and must then have no right to life at all.
This is a weird new stage in the abortion debate because, logically followed, it has stopped being about abortion altogether. It is about development, and the classification of human value based on development. It is particularly strange that this argument is advanced more commonly the further Left you go on the political spectrum. The logic is never followed of course, the statement is just repeatedly screamed and anyone raising even curious questions are labelled everything from “misogynist” at the mild end of abuse to “Nazi” at the more extreme.
So we have the Left who reject the idea that outcomes in life can ever be unequal except by some deep set manipulation and unfairness arguing that there can be an inequality at the most basic level, the right to life. And the Right, who have always held that inequality of outcome is determined by many factors, not least ability and hard work, and can be and is often fair, upholding the most basic equality of opportunity that comes with being alive. There is of course no contradiction in the Right’s position. It is the position that the National Party holds across the board, equality of opportunity, results determined by free choice, and yes sometimes luck. And being called anti-choice for it by the same Leftists who only believe in choice on one issue while advocating varying degrees of State totalitarian control over almost every other area of people’s lives.
If abortion did not involve a second human life, the unborn child, the naturally libertarian instincts of the National Party view of the world would conclude that it is not for the State to make decisions for the individual. Again, across the board it is our view that in order to justify a law on any matter a convincing case must be made that the individual’s action affect another individual to the point where the State has a duty to set a limit. It is a high bar to meet. The deliberate and intentional killing of one person by another meets that bar with a clear margin.
In particular the deliberate and intentional killing of an innocent person by another for any reason whatsoever clears the necessary bar to empower the right and the duty of the State to protect the innocent and the Eighth Amendment only asks that the State do so “as far as is practicable”. It is a peculiarly moderate measure to deal with a horrendous crime, it is even one might venture to say the least that can be done. For abortion is not just killing, it is murder, plain and simple, and can have no justification in law.
Mater Familias is no advance on Pater Familias, a matriarchy of death is not progress, it is demeaning to women at a core level to suggest that it is something they should positively seek as a right, and it is murderous in intent and effect. All else in the referendum debate is essentially a footnote to the basic. That the unborn child should have a right to life equal to the mother, is a truth self evident. That the State should protect and vindicate both person’s right is similarly self evident. It is unfortunate that we are even having the discussion at all, but that is where we are now.
Uachtarán An Pháirtí Náisiúnta