Assumptions, Omissions, and Definitions

Twitter can be trying at the best of times, but Irish Twitter has been especially so of late, most notably in the aftermath of Savita Halappanavar’s death and in connection with the government’s expert group report on A, B, and C v Ireland. 

The constant linking of these issues, based on the unproven assumption that Savita died because she was denied a termination of pregnancy, has been particularly frustrating. As Kitty Holland, the journalist who broke this story, has admitted, it has not been established that Savita’s situation would have been helped in any respect by a pre-term delivery.

Indeed, given how Savita’s husband Praveen describes how Savita requested a termination, it’s far from certain that such a termination would have been legal even in Britain. 

Contrary to inaccurate reports in the Irish Times, it is simply not true that British doctors are “legally able to carry out abortions until the 24th week of a pregnancy for all reasons, not just medical”. Rather, the 1861 Offences Against the Person Act remains in force, with the 1967 Abortion Act providing a limited number of defences for doctors who carry out abortions. 

It is not clear that Savita’s situation would have been covered by these defences, as we simply do not know whether termination would have been necessary to prevent grave permanent damage to Savita's health, or indeed whether it would have been more risky for Savita to have continued with the pregnancy than to have ended it. The facts of this case just aren't known.

That’s not to say that a termination wouldn’t have been granted in Britain were someone in Savita’s situation to ask for one, merely that such a termination might not have been legal. 

It would, in any case, have been up to the doctors present to decide, as even in Britain requesting a procedure does not grant a right to it.

Bulverism ahoy!

Annoying too has been the absurd Bulverism that’s gone on. ‘Bulverism’ was C.S. Lewis’s term for the tendency of people to dismiss others' arguments by saying something along the lines of ‘Oh, you only believe that because you’re a Communist/Environmentalist/whatever,’and to assume that such dismissals constitute refutations. 

Clearly related to the fifth and thirty-second of Schopenhauer’s 38 Ways to Win an Argument, this is a variety of ad hominem wholly devoid of intellectual credibility. The most common variety of this at the moment seems to be one which asserts that people only hold their beliefs about protecting life or helping the poor or protesting against the death penalty or whatever because they’re Catholic fundamentalists or something similarly oxymoronic*.

Generally speaking, Catholics tend to argue for moral issues from a natural law standpoint, rooted in philosophy and reason without reference to revelation, rather than from a faith-based one. It’s almost invariably their opponents who introduce religion into discussions.

It’s particularly bizarre to see the strain of Bulverism that gets deployed when members of Ireland’s Iona Institute are on telly. People mutter en masse about how Breda O’Brien or Patricia Casey only believe what they do because they are members of the Iona Institute and are only on telly because they are members of the Iona Institute.

Now. A moment's serious though should banish both of these objections. Firstly, it’s surely a bit more likely that people are members of the Iona Institute because of what they believe than they have their beliefs because of their membership, isn’t it? I think it’s pretty easy to establish that, say, Patricia Casey had opinions before the Iona Institute was founded in 2007. And I’m pretty sure that Breda O’Brien, say, was appearing on television long before the Iona Institute was set up, given that she’s been a columnist for the Irish Times for more than a decade, and was one with the Sunday Business Post before that.

If people have issues with what Iona Institute members or patrons say, then they should tackle that, because we all have an interest in honesty and accuracy; I’m glad that some people do adopt such a grown-up approach on occasion, questioning statistics and so forth, but sadly this seems all too rare. 

Listening to all the voices…

I think part of the problem may be due to a general lack of awareness about broadcasters’ obligations towards balance, such that they can't just put up a panel of sheep to bleat in unison, but have to find people who can and will express views that challenge fashionable orthodoxies. They can be desperate for people who'll do that.

So here’s the question: if you’re a broadcaster, and you’re in need of people who are willing and able to argue that, say, it’s best, all things being equal, for children to be raised by a mother and a father, or why human life should be protected at all stages, no matter how vulnerable, who are you going to call?

Believe it or not, lots of people hold such views, as surveys and referendum results constantly show, but habitually keep their heads down because they get shouted down if they voice them. A friend of mine is of the view that Irish politics tends to be dominated by conservative voices, but the Irish media – and social media – tend to be dominated by liberal ones, and I think she has a point. If we want to have a healthy society, we need to be willing to listen to all the voices out there, even if some of them challenge our preconceptions and make us uncomfortable. 

And let’s not go down the road of claiming that people shouldn’t be on television because they’re not elected – as I've seen people saying often over the last fortnight – unless you want the only people on television to be TDs, Senators, county councillors, and the President. Of course, people tend only to make such claims about unelected people they disagree with. Unelected ones they agree with are fine. 

(It's a bit like the phenomenon where people say religion should never have an influence on politics, but tend not to be bothered about how religion motivated the politics of William Wilberforce, Sophie Scholl, Martin Luther King, Oscar Romero, and Jerzy Popiełuszko.)

Yes, I know pro-lifers are guilty of nonsense too – this headline infuriated me when it was brought to my attention, as hysteria helps nobody and it annoys me enormously when facts are strained to fit narratives, but it seems to me – and I follow a pretty diverse cohort of people – that at the moment it’s certainly the pro-choicers who are by far the more guilty party. 

A second criterion…

One thing that’s amazed me about the whole debate is how people on both sides argue about legislating for the Supreme Court’s 1992 ‘X’ decision without engaging with the fact that the Supreme Court laid down two requirements for abortion to be legal in Ireland. Pro-choicers talk about how the Court ruled that the Constitution allows for abortion when there is a real and substantial risk to a mother’s life, while pro-lifers contest the validity of the judgement and such things. Neither group seems to be engaging with what the Court said, and it was a huge relief for me to see yesterday that the Expert Group's report on A, B, and C v Ireland had clearly recognised that both criteria need to be taken into account.

The Expert Group’s report notes that in 1992, 

“A majority of the members of the Supreme Court held that if it were established as a matter of probability, that there was a real and substantial risk to the life, as distinct from the health, of the mother and that this real and substantial risk could only be averted by the termination of her pregnancy, such a termination was lawful.”

There are two requirements here for abortion to be legal in Ireland. The first is that there should be – as a matter of probability – a real and substantial risk to a mother’s life. The second – and this is the one that people tend not to acknowledge – is that termination of pregnancy should be the only way of averting this risk.

The only way. This means that if there’s any another conceivable way of averting risk, abortion is not permitted under the Constitution. Here’s the crucial passage from Chief Justice Finlay’s 1992 decision on X:

"I therefore conclude that the proper test to be applied is that if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible, having regard to the true interpretation of Article 40.3.3˚ of the Constitution.”

Dancing round the Constitution…

Now, plenty of people seem to think that Ireland’s politicians have sat on their hands over this issue for the last twenty years, though as the Expert Group’s report shows, and as Noel Whelan wrote recently in the Irish Times, “The pattern could be more correctly described as spurts of intense activity followed by years of acute sluggishness.”

The fact is that the Supreme Court’s decision doesn’t give politicians a lot of leeway for legislation, as legislation would probably be unconstitutional if it allowed for abortion in cases where a mother’s life is endangered but did not rule out abortion in cases where there might conceivably be other ways of saving a mother’s life.

Given the constraints of the Constitution, I don’t envy the Government working out how to comply with the European Court of Human Rights’ wish that they realise an accessible and effective procedure to enable pregnant women to establish whether they qualify for a lawful termination of pregnancy in accordance with Irish law. 

That said, I think the Expert Group’s advice is a reasonable start, though whether the Government will pick from the options the group presents, or come up with something else, remains to be seen. 

It’s interesting that the report implicitly disagrees with the Supreme Court’s willingness in 1992 to accept the recommendations of a clinical psychologist as evidence that a patient could be suicidal, insisting that the opinion of psychiatrists is imperative in such matters. This makes sense, as if under certain conditions abortion is to be considered a medical procedure, then it is only fitting that it should be for medical practicioners to decide whether it is necessary or not.

My inexpert feeling about this is that as proposed, this could be okay, and it's conceivable that the government could come up with a mechanism that prioritises the lives of women while also vindicating the lives of unborn human beings. 

To make sure this works effectively within the Constitution, however, I think they'll need to make sure the review procedures for decisions to terminate should be as clear as for decisions to refuse terminations, and I think it'd be wise to to ensure that legislation precludes doctors who have any financial interest in abortions being granted from having a say in these decisions. 

That might sound cynical, but as February's revelations about gender-based abortions in British abortion clinics showed, we cannot assume that doctors will always be paragons of integrity. We don't assume this about politicians, policemen, priests, or plumbers, after all. Or journalists.

Wordplay? Or just the recognition that some things aren’t simple?

Of course, making matters messier is the fact that terminology is so tricky in these matters. Pro-choicers sometimes accuse pro-lifers of playing word games on these things, and insist that abortion is clearly defined in the dictionary and as a medical term, but the fact is that language changes and words vary in meaning. Dictionaries merely describe what words mean at a given time, and often in a given place and to a given people. These things are not fixed.

Currently the Oxford English Dictionary defines abortion as follows:

“The expulsion or removal from the womb of a developing embryo or fetus, spec.(Med.) in the period before it is capable of independent survival, occurring as a result either of natural causes (more fully spontaneous abortion) or of a deliberate act (more fully induced abortion); the early or premature termination of pregnancy with loss of the fetus; an instance of this. 

In more general use the unmodified word generally refers to induced abortion, whether caused by drugs or performed surgically, and the term miscarriage is used for spontaneous abortion.”

Does this settle things? Well, maybe, though by the primary definition it seems to suggest that it’s nonsense to speak of abortion being illegal; if it’s a naturally-occurring process, the law’s no more capable of preventing it than it is of prohibiting avalanches. It’s striking that this 2009 definition doesn’t speak of abortion of something which is done with the intention of destroying the child in utero, but merely as something that leads to the loss of the child. It’s very general. 

But here’s the thing. In 1989, the OED defined abortion rather differently:

“The act of giving untimely birth to offspring, premature delivery, miscarriage; the procuring of premature delivery so as to destroy offspring. (In Med. abortion is limited to a delivery so premature that the offspring cannot live, i.e. in the case of the human foetus before the sixth month.)”

So, apparently in 1989, there was no such thing, from a medical viewpoint, of abortion from the sixth month of pregnancy on; any termination of a child in the womb after that point wasn’t abortion. No, I have no idea what it was. Also, apparently,in non-medical usage the word ‘abortion’could be used in 1989 for either natural miscarriage or premature delivery – in which case the child might live! 

And, of course, in 1989 the OED recognised that abortion could refer to the intentional destruction of preborn offspring. This definition seems to have disappeared. Nowadays the OED doesn’t acknowledge that the purpose of what it calls ‘induced abortion’ can be – and of course often is – to destroy an unborn child. It now omits intention entirely, focusing solely on effect.

Confused? You should be. Words change, and dictionaries change with them. The word ‘abortion’, after all, is derived from the Latin for‘miscarriage’, so it’s hardly surprising that the terms should be confused. It first appears in English, for what it’s worth, in a 1537 translation of Erasmus, which says:

“To the phisicians craf he oweth his lyfe, ye whiche as yet hath nat receiued life, whyle thrugh it abortions be prohibeted.”

Abortions were prohibited in the physicians’ craft in the early sixteenth century, so. Presumably that didn’t mean that natural miscarriages were illegal. Not that that gets us very far. What about nowadays?

Hardly surprising that the Pro-Life Campaign isn't totally opposed to abortion...

The OED isn't a medical dictionary, of course, and so it's worth taking a look at Stedman's medical dictionary, which describes abortion as follows:

"Expulsion from the uterus of an embryo or fetus before viability (20 weeks' gestation [18 weeks after fertilization] or fetal weight less than 500 g). A distinction made between abortion and premature birth is that premature infants are those born after the stage of viability but before 37 weeks' gestation. Abortion may be either spontaneous (occurring from natural causes) or induced (artificially or therapeutically)."

Medically, then, it seems that the natural expulsion of infants from the womb is abortion, assuming they're below a certain age or weight, but the deliberate destruction of a human being within the womb is not abortion as long as the child is at least twenty weeks old.  

But, of course, English dictionaries – medical or otherwise – are descriptive things, not prescriptive ones; they tell us how people use words, not how people should use words, and the reality is that medical views on these things differ.

It’s well worth reading the 2000 report from the All Party Oireachtas Committee on Abortion, which recognised that the Ireland's Pro-Life Campaign isn't entirely opposed to abortion but is, rather, opposed to abortions in the sense in which term is colloquially used. Page 19 onwards shows just how unsatisfactory our terminology is on this issue, as the Committee reports:

• The then president of the Medical Council saying that abortion is not mentioned in Medical Council guidelines as it is, in practice, a lay term, though it has a technical medical meaning which relates to any termination of pregnancy, whether spontaneously or induced, prior to about fourteen weeks of the pregnancy.
• The then Master of the National Maternity Hospital saying that in the medical profession and in the clinical textbooks abortion has always been described as a pregnancy that is lost in the first trimester of pregnancy, which is up to fourteen weeks.
• The then Master of the Coombe Women’s hospital saying that the medical term ‘abortion’ means the premature ending of a pregnancy at any point before the foetus or baby is viable.
• The then Chairman of the Institute of Obstetricians and Gynaecologists saying that medical treatments to save mothers’ lives are not generally referred to within the medical profession as abortions, even if unborn children should die as the result of such interventions; the terms ‘legal abortion’ and 'procured abortion', he said, refer specifically to situations where the intention is to take the life of the unborn.
• A consultant obstetrician gynaecologist recognising semantic change, ‘abortion’ having come to mean in both medical and lay usage the destruction of an embryo or foetus, and pointing out that the term is nowadays mostly used to mean the deliberate destruction of unborn human beings.

Even the euphemistic phrase ‘termination of pregnancy’ was acknowledged by the Committee as being ambiguous, as it was pointed out to it a pregnancy can be terminated by going into labour, every pregnancy eventually being terminated.

Anybody who thinks this is simple is kidding themselves. The Expert Group has presented its report to the Government, and now the Oireachtas has the job of coming up with a legally-supported mechanism that will fulfil the needs of the Constitution without going beyond the Constitution, and which will somehow make sense of the fact that doctors, lawyers, and laypeople can’t actually agree on what the word ‘abortion’ means.

Good luck with that.
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* True. Fundamentalism is, in its broadest sense, a Protestant movement that took its name from a series of books called The Fundamentals, which opposed liberal trends within Protestantism. At the heart of fundamentalism is the principle that the Bible is not merely inspired, but is inerrant, and is inerrant at the level of the very words used by the original Biblical authors, which pretty much demands a literal reading of Scripture.

These attitudes have spread beyond Protestantism, such that there are, of course, fundementalist Muslims. However, they are completely contrary to Catholicism, which has historically sought to read the Bible in a nuanced and layered way. No, really.