John Bruton

Opinions & Ideas

Category: Abortion

LIFE IS THE PRIMARY HUMAN RIGHT

Speech by John Bruton, former Taoiseach, at the Pro Life Education dinner in the Clayton Hotel, on Saturday 8th September at 8pm

LIFE IS THE PRIMARY HUMAN RIGHT

I know everyone here feels a deep sense of disappointment at the decision the people took to remove the protection of the lives of unborn Irish boys and girls from the constitution.

The arguments advanced by those of us who favoured retaining the 8th Amendment were valid, and remain so.

They were philosophically coherent, and expressed a thought out value system, that protects the weak and the voiceless.

It is a value system that is based on respect for humanity and human life, and on the dignity and equality of each human person and not just on sentimentality or good feelings. It is never compassionate to end the life of an unborn baby.

There was no engagement, by the proponents of Repeal, with the question of when life begins, with when a human life should be recognised as a person, and hence when it ought to acquire human rights. That question was too difficult, too profound, so it was effectively ignored in the preparation of the abortion Referendum, in the Citizens Assembly, the Oireachtas Committee and the Dail and Seanad debates.

This is notwithstanding the fact that modern ultrasounds enable us to see the humanity of an unborn baby in ways that previous generations could not.

The pro life case recognises that there are responsibilities as well as rights, and  is, as I have said, based on a coherent value system.

Rights and responsibilities sometimes conflict with one another, and choices have to be made.

A value system is what then helps us make these, often very difficult, decisions, as individuals, and as a society. It provides the basis for a hierarchy of rights and responsibilities

In real life situations, some rights have to get priority over others.

The pro life case is that the right to life is the primary right, because, without life, one simply cannot exercise other rights. It flows from that that the primary responsibility, of the state, and of each of us as citizens, is to protect life.

Proponents of abortion either put other rights ahead of the right to life, or do not recognise a life before birth as human with human rights, at all.

A clear hierarchy of human rights is replaced by pure pragmatism. Everything is contingent, nothing is fundamental.

I do not think that is what the Irish people intended, but it is where we have arrived.

WHAT TO DO NOW….CREATING A SUPPORTIVE ENVIRONMENT FOR LIFE

Now that the law is being changed, and the criminal law will no longer be a factor deterring abortion, we have to consider other ways of avoiding the abortion of Irish babies.

There is a positive agenda to be promoted here.

We must continue to work vigilantly at legislative level, within the new constitutional dispensation. And there is much that can be achieved in the immediate future, as I hope to show in this speech.

But, even more, if we are  reduce abortions in future, we must work to building a climate of opinion, within families and in the wider public, that  will support women in making the courageous decision to allow their child to be born.

We must create a supportive environment for life.

That can be encouraged by public debate, and by conversation with friends. People who believe unborn babies are human, and should enjoy some basic human rights, should not be afraid to take part in these conversations. Whatever their view of whether abortion should be a criminal offence, many people will agree that babies before birth are human, and that they should be allowed to be born.

Creating a supportive environment will also involve solving the housing crisis, because the non availability of affordable housing is a deterrent to bringing a new life into the world. Those who object to new housing developments in their area should ask themselves if their objections are consistent with their pro life convictions.

Creating a supportive environment for new life will also involve giving greater recognition to the cost of rearing children in both our welfare and our tax codes. Children are recognised in the welfare system, but not in the tax code. The child tax allowance was abolished many years ago, while the tax allowance or tax credit for adults living in the same household has been steadily increased.  That was perverse.

In light of the ageing of our society, and the costs that will entail for families and the tax paying public, we should regard financial supports for families with children  both as socially progressive, and as an investment in our own future.

Creating a supportive environment for life will also involve making sure that adoption is made as accessible as possible to those who feel they cannot keep their baby.

The pro Life movement here should also look beyond Ireland in its efforts to protect life.  It must be inclusive.

Scandalously high levels of infant mortality in Africa are a pro life issue too.

The Irish Pro Life movement should continue to involve itself in the debates about what constitutes a human right, in the Council of Europe and in the in UN Agencies.

At the moment, these bodies take a very narrow view, regarding life before birth as not really human, and as undeserving of protection. That can, and should, be changed by good philosophical, legal, and medical arguments.

Indeed, one way to influence Irish legislators and courts to take a more inclusive and generous interpretation of the right to life here may well be to get the UN and the Council of Europe to take a more generous and inclusive view.

PROTECTING THE RIGHT OF CONSCIENCE AND RELIGIOUS FREEDOM

Religious freedom will need to be defended in the Termination of Pregnancy legislation, prepared by Minister Simon Harris, and soon to be debated in the Oireachtas.

No person, medically qualified or otherwise, should be forced by the threat to his/her employment, or of criminal sanctions, to be involved in the ending of a human life, against his or her religious convictions.

Article 44.2.1 of the Irish Constitution guarantees, subject to public order and morality,  the “free…..practice of religion”.

I would argue that “free practice of religion” is not confined to what one does inside the walls of a church, mosque or synagogue, but extends to daily life.

So a law that forces someone to take part in, or to facilitate, an action that that person believes is contrary to a deeply held religious conviction could be in conflict with Article 44.2.1.

Head 15 of the proposed Termination of Pregnancy Bill recognises this, in so far as it says no doctor, nurse of midwife shall be compelled to “participate” in carrying out an abortion.

Other hospital staff are not granted any such protection for their consciences, even though their participation may be also crucial to the ending of the life of the baby.

They too could be considered to be aiding and abetting an abortion, but they are to enjoy no protection for their consciences. That aspect of the Bill should be changed.

The concept of “aiding and abetting”  is well understood in Irish law .

Head 15 of the Bill requires a doctor, who has a conscientious objection to doing an abortion herself, to “make arrangements to transfer the care” of the woman to a doctor who will do it. This is aiding and abetting the abortion, and there is no conscience clause here either.

Given the amount of information on the internet, or likely to be available there in future, I believe this transfer requirement is unnecessary. Those seeking an abortion can find a doctor who will do it, without forcing a doctor, who objects to abortion, to aid and abet them.

I fear that doctors who are known to oppose abortion will be targeted under this clause by people wishing to catch them out and put them under threat of criminal prosecution because of their religious or human rights beliefs. There have been examples of this sort of targeting in other fields, where there are strong but conflicting views in the population.

Rather than place this burden on doctors who believe abortion is wrong, it would be more sensible to publish an affirmative list of those who have no conscientious objection to doing abortions.

Head 20 of the Bill provides for a body corporate to be prosecuted, and for directors, managers and secretaries to be prosecuted and punished.

So a hospital that declines to carry out abortions in accordance with the Bill could see its directors, and managers gaoled for up to 14 years for declining to do something that may be against their religious consciences, and which was itself illegal for the last 150 years or more. Again this is of questionable constitutionality.

ABORTION……… WITHOUT LIMIT AS TO AGE OF UNBORN BABY

There are other areas where amendments to the Bill should be promoted. Here the focus should be on Head 4 of the Bill, and on the definition of when an unborn baby is “viable” and should have a right not to be killed under Head 4.

“Viability” is defined as the point in a pregnancy when the “foetus” is capable of survival outside the womb without what are called “extraordinary life saving measures”. This is a very loose definition.

“Extraordinary life saving measures” are taken successfully in hospitals every day to save the lives of babies and adults.

Under the proposed legislation,  the possibility of taking such life saving measures- even though they would be regarded as routine in the case of premature babies- must be ignored in deciding whether  an unborn child could be capable of life outside the womb. To use such a definition, as a basis for ending life, is to do violence to the ethics of the medical profession.

Under Head 4 it will be permissible to end the life of what is deemed a non “viable” baby , at any stage in the pregnancy, if allowing the baby to be born would pose a” risk” of serious harm to the mental  health of the child’s mother.

Again this is a very loose ground for ending a life.

It involves the doctors in making a prediction about the FUTURE mental health of the mother after the baby might have been born.

Whatever about adjudicating about present mental health, deciding about future mental health is completely speculative. And on the basis of that speculation, a baby’s life is to be ended.

Indeed it is arguable that having an abortion is more likely, at some stage in the future, to trigger mental problems.

Furthermore there is nothing in the Bill to say that a qualified psychiatrist would have to be involved in making this life ending decision on the basis of an alleged threat to mental health.

These examples show that there is much constructive work to be done in preparing amendments to this Bill. The government does not have the votes to use the guillotine to close off debate on this, so there is plenty of scope for people here to explain what is at stake to their TD’s and Senators in a respectful and constructive dialogue.

LOOKING BACK AT THE REFERENDUM DEBATE….LESSONS FOR IRISH SOCIETY

I would now like to look back at the recent referendum debate and see what can be learned from it.

The reaction of those who won the Referendum was not always magnanimous, or respectful of the pluralist nature of Irish society and Irish values.

For example the Minister for Health, speaking in the Dail after the Referendum, on 31 May, did not seem to me to display the balance, and attentiveness to other points of view, that one would like to see in someone who will be deciding on the detailed content of the Termination of Pregnancy Bill.

He spoke of the Referendum result inaugurating what he called “a brighter Ireland”. It will not be a bright Ireland for the little babies who will have their lives ended before being allowed to see the light of a single Irish day.

He talked of the Referendum result “consigning a misogynistic legacy to the history books”. He did not seem to reflect on the fact that half the babies whose lives will be ended before birth will be girls. Those little girls will face the most extreme form of misogyny.

He claimed the “Yes” campaign was built on a “coalition of compassion”.  He thus seemed to imply that those who voted “No” are not compassionate. Maybe that is not what he meant, but nothing could be further from the truth.

He spoke of the Referendum meaning that we are “maturing into a tolerant, non judgemental, inclusive Republic”.  The Minister’s own speech was rather judgemental, and not particularly tolerant of those who sincerely disagree with him on the issue of abortion.

I hope that this was just elation, in the immediate aftermath of winning a political battle,  and that he will now show tolerance and inclusiveness, when considering amendments to the legislation he has proposed.

In a mature Republic, one would listen to, and deal respectfully with, the arguments and values of the other side, on any important issue. That did not happen during the years of preparation of the Referendum, and the mantra of “Compassion” was deemed sufficient to end all argument about the basic question of when life begins, when a life becomes a human, and hence when it ought to acquire human rights.

WHAT ARE THE NEW SHARED VALUES OF IRISH SOCIETY?

It is unclear what the new shared values of Irish society are to be. The Referendum did not end the debate.

If life is not the primary value, what is?

To fill that vacant space, and drawing on the most modern medical knowledge, the pro life arguments will need to be made, over and over again, to the young people of Ireland and to the generations that will succeed them.

These arguments, if repeated often and courageously, will remain in people’s minds, and will influence the private decisions that Irish women, their partners, and their loved ones will make in future, as to whether to accept a new person into their family circle, with all the responsibilities, joys and sacrifices that that entails.

UNACKNOWLEDGED CONTRADICTIONS

There are contradictions that still need to be resolved.

The recent Referendum decision sits very uneasily beside the deep and genuine concern, expressed in all quarters, for the welfare of boys and girls AFTER they have been born, and the strong laws we have passed to protect them.

It also sits uneasily beside the expressions of concern about where and how babies, who died fifty years ago in Mother and Baby homes, were buried.

Where, and how, will the supposedly non “viable” babies, who will be aborted in Irish hospital be buried? What care will church and state take to ensure that they are buried with dignity? Or will they be treated as mere hospital waste?

Human Rights organisations justly pride themselves in speaking up for the rights of those who cannot speak for themselves, or for those whose voices are not heard, because they are politically powerless, or simply unpopular.

But, in Ireland in the recent referendum, that did not really happen.

Irish human rights organisations ignored unborn children as if they were “unpersons”.

When the unborn child has its life deliberately ended, it is not presented as a victim.

Apparently it is only victims who survive who count.

But every abortion involves a death, a victim.  A victim that never gets the chance to become a survivor!

For me, every person counts, whether the person be born or unborn, visible or invisible, mute or eloquent, here or abroad.

THE FACTORS THAT SHAPE PUBLIC OPINION, AND THE RISKS THEY ENTAIL

If we are to use Referenda to make big decisions, we need to make sure that voters are fully equipped to do their job as citizen legislators.

What influences shape Referendum decisions, whether on Brexit , abortion, or children’s rights?

One needs to know to what degree emotion trumps rational argument.

One needs to know if people will examine each issue on its merits, or if the main driver is a desire to conform to some notion of what is modern and progressive.

There can be a conformist consensus in the media.

Professional Journalists are forced to report, under tight deadlines, on many things of which they cannot be expected to have a deep knowledge. So they write their reports to fit into the existing consensus among their journalistic colleagues.

The result is  often superficiality, one sidedness, conformity and dogmatism.

That sort of conformism contributed to development of the Celtic bubble.

It also drowned out prolife arguments in recent times.

On  social media, people tend to congregate in online communities where they only come across opinions with which they already agree. Thus social media can aggravate the tendency in the print media towards superficiality, one sidedness, conformity and dogmatism.

In these circumstances it is hard for those with unfashionable views to get a look in. This is not good for the quality of our democracy.

WE NEED TO THINK ABOUT THE MEANING OF HUMAN RIGHTS

To say a child has full human rights after birth, and none before it, is unscientific and inherently contradictory.

How then did the Irish public come to decide to end the constitutional right to life of an unborn child in Ireland?

It came down to the question of visibility.

The mother of the unborn baby, and the dilemmas she faces, were and are visible .

The unborn baby is invisible.

But, if one puts visible suffering above invisible suffering, one is no longer applying a universal moral standard.

I believe the whole notion of universal human rights rests on the assumption that there is such a thing as a universal moral standard. That is why I found the attitude of Irish human rights organisations, in the Referendum, troubling.

I say it again. There IS a hierarchy of rights and responsibilities. The right to life should be at the top of any hierarchy of rights.

 

CONCLUSION

I conclude saying there is much work to be done.

There will have to be a new approach, in a new context.

Yes, in the short term, one must continue to focus on what the laws says. The law is still open to amendment and that must be pursued with vigour.

But even more important must be the influencing of public opinion, over the longer term.

In recent years the number of abortions by Irish women has been falling.

Notwithstanding the change in the law, the number of abortions can continue to be reduced, if people are convinced that there is a better and more just way.

Lighting that way forward is the real route to a brighter Ireland.

 

WHAT IS THE IRISH DEFINITION OF HUMAN RIGHTS?

ARBITRARY LIMITS BEING SET IN ABORTION  REFERENDUM DEBATE

What human rights should be protected in our constitution?

Is a right to life not the primary human right, in the sense that without it other human rights could not be exercised?

Who is human? If a baby before it is born is human, ought it have human rights?

These are the issues at the heart of the Referendum on the 8th Amendment.

In 1982, Garret FitzGerald, Leader of Fine Gael, told the party’s Ard Fheis;

“All life, whether of citizens or of people of other nationalities, whether born or unborn, should be protected by our constitution”.

This carefully worded statement was one of fundamental values, going to the heart of Garret FitzGerald’s, and Fine Gael’s, political tradition.

As one of his successors, I was often asked what Fine Gael stood for, and my answer was that the party stood for three things, for a society in which “every person counts”, for exclusively constitutional politics, and for European unity. I added that “every person” included babies before birth.

These three principles were consistent with, and flowed from one another. Protection of human life necessitated the avoidance of violent conflict in Europe, and also lay behind the party’s commitment to constitutionalism in Irish politics. Respect for human life, born and unborn, foreign or native, was at the heart of our entire approach to politics.

The idea that a constitution should protect human rights is, in fact, fundamental to our western civilization. Without a right to life, one cannot exercise any other constitutional rights. The right to life is thus the primary human right.

For example, the Irish constitution also explicitly recognises a right to freedom of expression, to one’s good name, to property and to elementary education.  But none of those constitutional rights can be exercised, if one had not first had the right to be born.

The Irish courts have gone further and have decided that the constitution creates other rights, not explicitly mentioned in the constitution, so called “unenumerated rights”.  These unenumerated constitutional rights include a right to marry, a right to procreate and a right to bodily integrity. Again, it would be impossible to exercise any of those rights, if one had not first had a right to be born.

It was also in that pro life spirit, that the Irish people also decided that the Irish constitution should ban the death penalty, even for heinous crimes. Our strong public, and private, support for life saving aid to Third World countries is also derived from the same pro life convictions among the Irish people. An avoidable death of a baby in Africa is a pro life challenge too.

Indeed, at the time the 8th Amendment was introduced, there were many who argued that it was not needed, because a child before birth would be deemed by the Irish courts to enjoy a right to life anyway, an unenumerated right so to speak, because without it, it would not be able to have to exercise the other rights to which it would be constitutionally entitled.

Unfortunately, that is not the way things have turned out. The Supreme Court has decided recently that a child in the womb has no rights at all, except the basic right to life contained explicitly in the 8th Amendment. Now even that may be taken away if a majority vote Yes on 25 May.

Abortion ends a life. Once it has happened there is no going back, no recovery. It is final.

Yes, there are tragic pregnancies, and difficult consequences flow from them. But at least there is some possibility to remedy, or alleviate, some of those consequences. But no remedy is open to the unborn child whose life is ended. It is over before it has properly begun.

The taking of the life of another, without its consent, can never be a private matter, for a woman or for a man. It is inherently a matter of public policy. Indeed, if human rights are to mean anything, any denial of the human rights of another person is necessarily and always a matter of public policy.

I have to say I have a real difficulty understanding the concept of human rights espoused by the proponents of abortion legislation.

It seems that some of them believe a baby, before birth, is not really human at all. Thus it would not have human rights, including a right to life. The idea here seems to be that, because an unborn baby is totally dependent on its mother, it is therefore not yet human, and has no human rights.

But dependency is part of life, and not a sound ground for denying the humanity of anyone. Babies after birth, and older people at the end of their lives, are deeply dependent too. They could not survive on their own.

But, to date, no one is suggesting they should not have human rights. If a two day old baby is human, and has a right to life, why not little girls and boys three months before they are born? What is the ethical and scientific basis for saying one has human rights, and the other does not?

I was very disappointed that the Oireachtas Committee was not asked to explore these fundamental questions of what it is to be human, who is human, and who should have human rights, before making its radical recommendations.

Without such a discussion, the referendum is premature. As a society, we must agree amongst ourselves on the basis and scope of human rights in Ireland, before making a decision to withdraw the most fundamental of all human rights from a section of our people.  We have not done that. That is why I urge people to vote “No” on 25 May.

ARTICLE PUBLISHED IN IRISH INDEPENDENT 29TH APRIL 2013

Introducing a law, that would say that a threat of suicide a ground for abortion, is not something that should be done under the pressure of artificial deadlines.


I know of no other area of law, where a threat of suicide is sufficient to make legal, what would otherwise be illegal. 
The notion that a simple threat of suicide would make right, something that would otherwise be wrong, is a really dangerous principle.

We must think long and hard about where it might lead.
We should also think carefully about the legitimating effect, that giving a threat of suicide  this sort of  high level statutory recognition, might have on attempts to reduce the incidence of suicide, or of threats of suicide. 

The abortion question boils down to whether one believes an unborn child is a separate human, with human rights of his/her own, or not. 
Some believe the unborn child is not a human with human rights, but just a part of the mother. If it is a part of the mother and not another life, then of course logically, the mother could make her own decisions. But the Irish constitution says something different.

The Irish people formally rejected that view when they decided in 1983 on an amendment to the constitution, now Article 40,(3)(3), which says that the unborn child has an “equal right to life” with its mother. This is being forgotten in some recent discussions.
The word “equal” is crucial here. A possibility is never equal to a certainty. The particular sentence in the constitution  would have made sense if the word “equal “ had not been put before “right to life”, but it WAS put in. That must be respected in any law the Dail may pass. 

In Article 40, the Irish constitution, in recognising his or her right to life, recognises the basic humanity of the unborn child, and grants the unborn child human and constitutional rights. 
Thus I believe that an unborn little girls life cannot, constitutionally, be taken away by a decision of 2,4,6 8, or any number of doctors, along with her mother, because the Irish people have said that she has rights of its own, separate from all of them.

At the very least, the unborn child, whose life may be about to be ended, must have separate representation in any process that might suppress her life. That should be a fundamental and uncontroversial legal principle.

Allowing medical certificates of suicidal intent to suffice to authorise the taking away the otherwise healthy life of an unborn child, would also be put great stress on the system of medical ethics. Medical certification is sometimes fallible, as we know in regard to the certification of illness for absence from work. 
The fact that leading psychiatrists are reluctant to be involved in certifying suicidal intent, in the context of ending the life of an unborn child, and the fact that many of them assert that abortion is never a cure for suicidal feelings, shows how impractical and mistaken was the original Supreme Court majority decision in the X case, in so far as it allowed suicide ideation on the part of a mother to override the equal right to life of an unborn child.

The only way out of the present dilemma is either

1.Address the medical decision making process relating to physical threats to the life of the mother, but  leave suicidal intent out as a ground for abortion, and let anyone, who wants to test the present constitutionality of this aspect of the X case ,  apply directly to the courts, or 

2. an option I do not favour, have a constitutional amendment to remove the equal right to life of the unborn from the constitution.

Some may argue against these options on the ground that the X case is settled law, and is thus is a reliable basis for proceeding with legislation to allow abortion where suicide is threatened. I believe this is wrong.

Irish constitutional law has changed considerably since 1992, when X was decided. There are two particularly relevant examples.
The first is the development by the Irish Courts of what is called the “proportionality test”. This test, first adopted by the High Court in 1994 (2 years after the X case), but now well entrenched, is used by the Courts when deciding cases, where there is a clash of rights. 
This test involves the Court in a much more searching examination of the evidence than happened  in the X case – when a majority of the Court agreed to the deliberate ending of an unborn life on the basis of a report by a single psychologist. Critically, the proportionality test requires someone, who is seeking to interfere with another individual’s rights, to prove that there is no other way of resolving the matter. 
If a new X case were to come up, the Court would be required by the proportionality test, to take account of the sort of evidence, heard by the Oireachtas Committee recently, to the effect  that there are plenty of other things that could be done to prevent a suicide in such a case. As a result of the improvements in legal procedure and in psychiatric medicine, I believe Courts would decide an X case differently today.
The second way in which things have changed since the X case, is the amendment made by the people in 2001,which is now Article 15 (4) of the constitution, which bans the state imposing a  penalty of death, in any circumstances.

This ban cannot even be suspended in an emergency like a war. This added constitutional commitment to the inviolability of every human life, because it was passed after the X case was decided, could not have taken into account then.  In a future case, all the different articles in the constitution would be interpreted together, and the argument would surely be advanced that it would be incongruous, constitutionally, to allow an unborn and innocent child, with explicit rights to life under Article 40, to be deprived of her life, while protecting, in every situation, the life of an adult who had committed a very serious crime . 

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