Choosing choice: why I would vote to #RepealThe8th

Some time this year, Irish voters will have a chance to repeal Article 40.3.3° of the Irish Constitution, inserted by referendum in 1983. 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.

This embedded a ban on abortion into the Irish constitution. Many on both sides of the debate, including the Catholic Church, assert that this ban is in line with traditional Christian teaching, particularly in Ireland. The word “medieval” is sometimes used on the pro-choice side.

This is very unfair to the medieval Irish.

A brilliant 2012 article by Maeve Callan of Simpson College, Indiana, “Of Vanishing Fetuses and Maidens Made-Again: Abortion, Restored Virginity, and Similar Scenarios in Medieval Irish Hagiography and Penitentials.” (Journal of the History of Sexuality vol 21 pages 282-96 – summarised here, but the whole thing is worth a read) recounts the records of four medieval Irish saints who miraculously “cured” unwanted pregnancies, one of them being no less than St Brigid of Kildare. Prof. Callan also transcribes the medieval Irish recommendations of what penance to impose on a woman who confesses to abortion – in one text, less than half the penance for carrying a child to full term and giving birthfrom Classical times. I don’t go all the way with those who see Numbers 5:11-31 as a text allowing the local priest to terminate an embarrassing pregnancy by magic ritual, but I can see their point. (Going a lot further back, the origin of pregnancy itself is murkier still.)

The second thing that troubled me, frankly, was that although some of my closest friends were also pro-life, many of the other pro-life activists who I dealt with were simply on a completely different political wavelength to me in many other respects, and in addition some of them were not very nice people at all; meanwhile most of the people who I generally had more in common with politically and personally were also pro-choice. (The National Union of Students had a joke: “How many pro-lifers does I take to change a lightbulb?” “The lightbulb may not be working, but I’m going to ignore that and tell you about a much more important issue.”) I have never minded being a maverick, but I started looking around and wondering if it was them or if it was me, and I came to the conclusion that it was quite probably me. I strongly relate to this moving account by an evangelical American former pro-lifer of her growing awareness that the supposedly “pro-life” movement was in reality anything but. (See also U.S. Congressman Tim Ryan.)

So I underwent a quiet change of mind, with no particular need to speak out on it one way or the other. Since the proposition that full human life begins at conception is not tenable, all we are left with is the question of where and when to draw the line, which is obviously a matter for legislation and not the constitution. The issue was not raised once as an issue when I last stood for public election, in 1996, and I doubt that I will ever stand for election again. On the other hand it became increasingly clear to me that a healthy society is a society where everyone is able to make free choices about how they shall live: most fundamentally, whether and how to have children. The State should in general stay out of people’s decisions about fertility, except in so far as it prevents abuse and maximises the available options. Talking to people who have directly made the decision themselves one way or the other reinforced my change of mind.

Many years on, becoming a parent has confirmed my scepticism of the pro-life agenda. I love both of my daughters very dearly. But life with them has not always been easy. I would not condemn any prospective parent who had the opportunity to avoid such an experience of parenthood, and took it. (See also this piece on the Eighth Amendment debate by the father of a girl with Down Syndrome.) This is a very different issue from fatal fetal abnormality, of course, an issue which in my view unhelpfully restricts the discussion even though it is the least defensible aspect of the Irish situation. We need to emphasise the right to choose parenthood positively, a point made quietly but well by Rachel.

Even more so when I consider the awful prospect that either of my daughters might become pregnant, which could only come about as a result of molestation; both are physically mature, but neither is remotely capable of consent. I have no doubt at all that we would exercise our legal authority to have such a pregnancy terminated. A consistent pro-lifer would have to argue that our potential grandchild should not have to pay the penalty of its father’s crime or its mother’s incapacity. Such arguments frankly do not interest me in the slightest.

Coming back to Ireland, it’s clear that on its own terms the Eighth Amendment has failed. (And I could write a lot more about the crazy times of the 1983 referendum, the Kerry Babies and Ann Lovett, but that will have to wait.) Thousands of Irish women every year still go to England, or to other countries, or get pills mailed to them, to terminate their pregnancies. The defenders of the Eighth Amendment seem to have little to say about that. If the intention was truly to stop abortions from happening, the effect has been to ensure that unwanted pregnancies are restricted to women without the necessary resources to end them. (A similar point is made in this piece by a Texas woman who found Texas had placed so many obstacles in the way of getting a legal and necessary abortion that she had to go to another state.) And, of course, another effect of the Eighth Amendment is that medical care for women fails them because necessary abortions are banned, most notoriously and fatally in the case of Savita Halappanavar.

In four Irish referendums since 1983, two attempts to strengthen the ban by excluding the threat of suicide have been rejected by voters (in 1992 and 2002) while two proposals to recognise reality by formally permitting women to travel abroad for abortions and to access relevant information have been approved (both in 1992). Really it is ridiculous, in any field of policy, for this level of fine detail of women’s rights to be regulated by the blunt instruments of constitutional amendment and referendum.

Ireland now faces another vote on abortion. The new Taoiseach, Leo Varadkar, has committed to holding another referendum. A specially convened Citizens’ Assembly recommended last June that Article 40.3.3° be replaced by a new text explicitly allowing for legislation on abortion. The parliamentary committee charged with the subject last month recommended the straight repeal of Article 40.3.3° without any new text (rightly so; any new text will quickly become a traumatic litigation playground). High profile politicians including opposition leader Micheal Martin and government MEP Brian Hayes have endorsed the straight repeal option. The tide appears to be turning.

And who knows, maybe it will even reach Northern Ireland next?