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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. Author of FREEDOM OF RELIGION AND THE SECULAR STATE (2012), HUMANITY ENHANCED (2014), and THE MYSTERY OF MORAL AUTHORITY (2016).

Sunday, December 26, 2010

CASE OF A, B AND C v. IRELAND (5)

As I've mentioned, Applicant C actually won her case, though the relatively low compensation she was awarded probably did not even pay her legal expenses. Then again, it looks as if this may have been due to poor documentation of expenses by the lawyers rather than anything else; see para 282.

As you'll recall, C travelled to England, believing she could not establish her right to an abortion in Ireland. She was in her first trimester of pregnancy at the time. Prior to that, she had been treated for 3 years with chemotherapy for a rare form of cancer. She had asked her doctor before the treatment about the implications of her illness as regards her desire to have children and was advised that it was not possible to predict the effect of pregnancy on her cancer and that, if she did become pregnant, it would be dangerous for the fetus if she were to have chemotherapy during the first trimester. The cancer went into remission and C unintentionally became pregnant. She was unaware of this fact when she underwent a series of tests for cancer, contraindicated during pregnancy. When she discovered she was pregnant, she consulted her GP and several medical consultants. She alleged that, as a result of the chilling effect of the Irish legal famework, she received insufficient information as to the impact of the pregnancy on her health and life and of her prior tests for cancer on the fetus. She therefore researched the risks on the internet.

Given her uncertainty about the risks involved, she travelled to England for an abortion. She wanted a medical abortion (drugs to induce a miscarriage) as her pregnancy was at an early stage but that she could not find a clinic which would provide this treatment as she was a non-resident and because of the need for followup. She therefore alleged she had to wait a further 8 weeks until a surgical abortion was possible. On returning to Ireland after the abortion, she suffered complications of an incomplete abortion, including prolonged bleeding and infection.

On these facts, an abortion would actually have been legal in Ireland - the woman's life was endangered by her pregnancy. It seems, then, from one point of view, that C had the weakest case: Ireland's anti-abortion law did not prevent her having an abortion in Ireland, as it did with A and B, whose abortions on Irish territory would have been illegal. So why was she the one who succeeded? Why didn't the court see it this way?

Partly, because, as we've seen, the anti-abortion law was not struck down. Putting it bluntly, A and B were stuffed, because the gist of their claims was really that abortions in their circumstances should not have been illegal in Ireland. Once they failed on that, they really had nothing more in their amouries.

But C was able to argue that the Irish authorities had pursued a course of conduct that hindered her in obtaining an abortion that would actually have been legal. She argued that the state had a positive responsibility (or she had a positive right), under Article 8, to measures to protect her enjoyment of her private life - or some such thing. I'm quite sceptical about the use of Article 8 or anything similar to give positive rights to citizens. Such provisions should mainly protect the citizens from state action. If the state is going to be under a positive obligation to make certain resources or information, etc., available, this should be expressed clearly and separately, and my general view is that the detail of what positive benefits the state should provide is best left to the political process.

However, it is well established in the European jurisprudence that Article 8 provides some level of positive rights against the state, and it makes sense in this particular context. If the state enacts a sweeping law that interferes with sexual and reproductive privacy, the least it can do is provide a transparent regime so that people who are adversely affected (in this case to the extent of a woman's life being in danger) can know exactly where they stand. Ireland had not been done, or so the court concluded. E.g., it had enacted no statutory provision setting out when a woman could legally obtain an abortion.

The court decided the following question in C's favour: "whether there is a positive obligation on the State to provide an effective and accessible procedure allowing the third applicant to establish her entitlement to a lawful abortion in Ireland and thereby affording due respect to her interests safeguarded by Article 8 of the Convention."

No framework was established in Ireland for a woman to be able to determine and prove that her intended abortion was legal - short of initiating a constitutional action in the courts, or, I suppose, of allowing herself to be arrested and then defending herself at the trial on the basis that there was a real and substantial risk to her life - not "merely" health - which could only be avoided by terminating the pregnancy. In the end, C was awarded an after-tax sum of 15,000 Euros, and Ireland will now have to put some better provisions and procedures in place for women who want certainty about whether their contemplated abortions are legal.

I suppose this aspect of the case is a good outcome, though one might ask why, once everything else is determined against the woman, she shouldn't be required to raise the relevant defence if arrested and brought to trial. How is this different from other crimes where there is a statutory, common law, or constitutional defence? Be that that as it may, C succeeded in getting some money for what she'd suffered from the lack of a ready means of vindicating her right to an abortion in Ireland, and Ireland will now have to establish a more transparent and user-friendly regime for women who want abortions to be able to ascertain their legal rights and obligations.

But that's very much a consolation prize. Ireland gets to retain its sweeping prohibition of abortions - at all stages of gestation, and even if the woman's health (but not life) is endangered - backed up by a life sentence. That's highly illiberal, and Ireland is a lousy excuse for a liberal democracy. Finally, you're naive if you don't draw a connection with the power, within Irish politics and society, of the Roman Catholic Church. As always, that organisation is an enemy of individual liberty; it will seek to impose its moral views through state coercion wherever it can.

11 comments:

Fiona A said...

I don't think you understand the philosophy behing why it is wrong to kill an unborn child. Here is a brief run through for you (it works even if you are an atheist);
1. It is wrong to kill innocent human life.
2. Abortion is the act of killing innocent human life.
3. Therefore abortion is wrong.

The Irish laws are merely protecting those who can not stand up for themselves! Russell please think of these little human beings, they too have arms, fingers and legs just like you.

Abortion ends an innocent human being's life, abortion is murder!

Russell Blackford said...

Hi, Fiona A - yes, I totally understand that argument.

I know that some people Out There think it's a strong argument, but that's exactly my point. It's a shallow, superficial, glib argument with no credibility. It's been demolished many, many times. There's certainly nothing "profound" about it. E.g., it never goes deeper and examines why it is said to be morally wrong to kill innocent human life, merely as such, even if this life is in a very early, and perhaps even insentient, form. Nor does it examine why such a contentious moral principle should be imposed by law in a supposedly liberal state, where the starting point is that we are all entitled to act on our respective moral principles and that the state has a much narrower range of tasks than identifying and imposing what it considers to be the correct morality.

I assume, though, that you are setting out this particular argument to demonstrate just how shallow, etc., it is - yes? You're not, I take it, giving it your own endorsement. Right? At least that was what I gathered from the facetious comment about "little human beings" with "arms, fingers, and legs".

Fiona A said...

Who has demolished this argument? I would like to look into it further. Why is it ok to kill something even if it is human?

I totally meant the comment about these little human beings having similar body parts to us, it is a proven scientific fact. Have you not seen the photos? They are just like you and me, only smaller and more innocent.

The contempory New Zealand philosophy Matt Flannagan presents a very strong case against the killing of unborn children here; http://www.mandm.org.nz/2010/01/contra-mundum-confessions-of-an-anti-choice-fanatic.html. I suggest you have a look at that article and if you can still see that abortion is ethically acceptable then I would like you to tell me why.

Thank you

Russell Blackford said...

Come on, Fiona, we got the joke the first time. I realise that you're pretending to accept this ridiculously weak and shallow argument, and thus making my point for me.

And yes, you're right. Anti-abortion arguments are typically stupid and shallow. There is nothing profound about them. But you don't have to continue in the same vein. We get it.

Fiona A said...

If you are not going to take me seriously then you could at least show enough respect to tell me your opinion on the article I gave you the link to. It is from a leading contempory philosopher.

Russell Blackford said...

(a) It's not so much a matter of not taking you seriously. I genuinely thought that the first comment was probably meant to be a parody. In any event, you are simply making my point for me.

(b) You've merely pointed me to someone's blog.

(c) The person concerned appears to be - well, let's just say intellectually unimpressive, though I'm tempted to use much stronger language.

Once again, the nonsense on his blog makes my point for me. And he is most certainly not a leading philosopher in New Zealand or anywhere else. Don't you think I'd have heard of him if he were a "leading contemporary philosopher"? His bio shows that he is nothing of the sort. Not even remotely.

Fiona A said...

Could you please tell me what is wrong with his arguments in that article? He is regurly published in a leading NZ current affairs magazine with a good number of readers. He has also just come back from one of the largest philosophy conferences in the USA.

Russell Blackford said...

Attending a philosophy conference proves nothing. The guy has no real standing in the philosophy discipline at all. That's okay. Arguably I don't have all that much either, but in any event you should stop claiming he has when he hasn't.

I don't take you seriously because you've naively used an argument that almost no reputable philosopher takes seriously anymore. The first thing that would happen in an undergraduate philosophy subject looking at this issue would be a dissection of the sanctity of human life argument (as it is often called) to show all its problems. That's why I thought you were being satirical - telling me that I don't understand what argument is being put and then proceeding to wheel out one of the most simplistic, shallow, and notoriously unsuccessful arguments in the whole field of applied ethics! You almost had to be joking. And then the nonsense about them being "little human beings", blah, blah. Zygotes and early embryos are covered by your argument but they certainly don't have fingers or legs (as if that could be the relevant issue).

Really, you should go and at least read the relevant books by Michael Tooley and Peter Singer (who actually are leading philosophers).

Here's a hint. Your premise 1. is one that no opponent is ever going to accept, and why should anyone accept it? It leads to absurd consequences such as the consequence that there is something wrong with destroying even a zygote. Indeed, taken literally, it even applies to blowing your nose, which destroys multiple cells that are living and genetically human, and therefore "human life" (and are certainly innocent in the sense typically used by proponents of this argument: i.e., they are not soldiers or criminals).

You need to find a much more precise premise and then you need to provide an argument as to why I, or any other opponent, should accept it. You haven't even begun to do that. There's no evidence that you've thought beneath the surface of your premise at all. You've gone nowhere near identifying all the difficulties in defining what it really means and how it could possibly be supported ... let alone overcoming them and selling your premise to others who are sceptical.

As I say, shallow and superficial.

And nor have you even begun to say why such a moral conclusion should be imposed by the coercive power of the state on people who don't accept it. You have not shown any sign of even thinking about whether it is okay for the state to be in the business of enforcing contentious moral claims by means of policemen with guns and locking people up in prison cells.

Again, shallow and superficial.

And once again, shallowness and superficiality are exactly what I have come to expect from people who argue for the sweeping legal prohibition of abortions. Your comments provide a good example of why.

Fiona A said...

Thank you for the run down.

Fiona A said...

Will you continue to look at the MandM site?

Russell Blackford said...

Sorry - there are very few sites that I look at regularly, and I'm not likely to be adding more at the moment.