In Smiffy’s excellent article on the Miss D case he compares Banquo’s Ghost to the abortion issue in Irish politics, a reference to Macbeth and the spectral return of an issue that refuses to die peacefully.
When reading the news this afternoon that the High Court has decided to allow Miss D to travel, it seemed to me like the final act of a play from Theatre of the Absurd playwright Eugène Ionesco, specifically, the play Rhinoceros. In that play various social archetypes turn overnight into Rhinoceros’, given to thundering through the small village, in a symbolic display of conformity.
The Rhinos in this case are the legislators and lawyers for the state. One of them, James Connolly SC, council for the unborn, said:
“No State agency should facilitate or fund such travel and the courts should not be “some form of licensing body for abortions. Miss D’s baby is a live foetus entitled to the constitutional protection for the unborn and the fact that it cannot survive after birth “is irrelevant.”
So now that the High Court has decided to allow Miss D to travel, will whatever government gets elected plan to bring in legislation to resolve the ambiguity surrounding abortion rights in Ireland?
It seems extremely unlikely.
As Stephen King, writing in the Irish Examiner today indicates:
“At one time, the Taoiseach’s position was that the Oireachtas was duty-bound to legislate in the parliamentary term now ending to give effect to the ruling of the Supreme Court in the X case of 1992. The Government has not done so and neither Fianna Fáil nor the PD’s,-if their manifestos are anything to go by- intend to do so during the life of the next Dáil if they can help it.”
Labour, he points out, has made a commitment to bring in legislation on the 1992 decision in its election manifesto and this is to be welcomed. Fine Gael, however, have not and it remains to be seen if Labour can possibly influence Kenny enough to get over their obvious reluctance to deal with this issue as soon as possible.
No one seems to know what Sinn Fein’s position is on this one.
In her reaction to the news Dr. Mary Muldowney, a spokeswoman for the Alliance for Choice welcomed the High Court decision, but said:
“The majority of Irish people believe that abortion is acceptable in some circumstances but successive governments have failed to legislate so that Irish women can have abortions safely and legally in a hospital here.”
I think that it is a common enough reaction, although I’ve only discussed it with a small number of people. Most of those I’ve talked to consider that, whatever about the rights and wrongs of abortion, in this case the HSE shouldn’t have tried to prevent the teenager from traveling.
The Rhinoesque HSE seemed to saying that they didn’t have the authority to allow it and that such a decision had to be taken by the district court. When brought before the District court however, the judge decided that it would be wrong to allow her the right to travel. To do so, District Court Judge Flann Brennan said ‘would be a failure to vindicate the constitutional right to life of the unborn’.
This absurd decision (in my opinion) goes against the medical evidence provided by a consultant from one of the main maternity hospitals that to let the pregnancy go full term would almost certainly result in serious complications for Miss D. Should it be the case that the constitutional right of the unborn - something that is most definitely worthy of serious debate, especially when the unborn has no viability outside of the mother’s womb - should take precedents over the mortality of the mother.
The HSE’s argument though it seems was based on more institutional concerns. Gerry Durcan, a senior counsel who is representing the HSE, argued that:
“the HSE had a lot of children in its care who needed to travel for lots of reasons and the implications for of the case for the HSE were much wider than the single issue of the legal right to travel for the purpose of a termination. Mr Durcan said it would be a ‘dangerous precedent’ if every 16 year or 17 year old in care could exercise their right to travel in a manner that would take them outside of HSE care.”
By trying to avoid a legal precedent they have highlighted how a robust provision for this type of eventuality has not been provided, despite the fact that previous court cases have shown how urgently it is needed.
As Smiffy argued so well, there is a huge reluctance in the grey skinned bulky mass of the political establishment to deal with an issue that affects thousands of Irish women and that this is tantamount to moral cowardice.
Interestingly even Breda O’Brien in the Irish Times was clear that Miss D should not be forced to full term. My own feeling is, and I’d be strongly in agreement with you that there are valid discussions to be had here, that at least the tone of the argument has improved since the 1980s. That’s no small thing.
I hope so, because if this thing is to be resolved by legislation, as it should be, there’s going to have to be plenty of debate. This case of course could still act as a catalyst for that important debate, although the HSE is today suggesting that the biggest impact would be on their future status as carer for hundreds of teenagers who might try to wrest themselves free from the authority of HSE by claiming the right to travel, effectively moving out of their jurisdiction.
I think the constitutional status of the unborn is something that is also going to have to be faced, particularly when the right to continue life in utero, but not much beyond it, trumps the long term welfare of the mother everytime. Its also relevant to the ethics surrounding stem cell research.