The legal and ethical poles of The Eighth Amendment

By Shauna Bowers

The subject of the Eighth Amendment has been one which has gained mass amount of attention over the last year especially. It has been discussed and then discussed again as everyone passionately exclaims their postulations, claiming that their opinion is the right one.

However, if we sit down and think about what it is that drives our opinion, it comes down to two very simple things. It is the age-old debate of legality vs. morality. There are, of course, other factors that play a part in our decision making such as religion, upbringing and personal experience but at the heart of even those factors, it is natural to still consider what is legal and what is ethical.

“Well I think people’s views on ethical decisions are formed by a number of influences and one of them is a person’s religious beliefs or lack of those. I think all religions have beliefs and values and make statements on various types of moral issues that contribute to a person’s views,” Donal O’Mathuna a lecturer in DCU, said.

O’Mathuna is a lecturer in ethics in the School of Nursing and he spoke at The Citizen’s Assembly on the pro-life side of the argument. He spoke of personal autonomy, making something good out of something harrowing in the case of rape victims and he spoke of the responsibilities we undertake when we decide to engage in sexual relations.

“My opinion is that I would defend the current wording of the Constitution, that I believe the unborn do have important rights and that does include, especially, the right to life. That means in my view, the only time that an abortion can be acceptable is when there is a conflict between the life of the unborn and the life of the mother,” O’Mathuna said.

Screen Shot 2017-03-08 at 14.34.08On the legal side of this argument, article 42a of the Constitution, which was introduced after the 2012 Children’s referendum, provides that the State must protect ‘all children’. Justice Richard Humphreys said that since an ‘unborn’ is ‘an unborn child’, article 42a protects children ‘both born and unborn’.

Another DCU lecturer, Vicky Conway, also feels quite strongly about the Eighth Amendment, but she stands on the pro-choice side of the debate. The Socio-Legal Research Centre, a group established in DCU and a group in which Conway is a member, entered a submission into the Citizen’s Assembly outlining their reasons why they believe a repeal should occur.

Many of the members have published on the topic and so they cannot speak at the assembly as a result which is something that Conway thinks could impact on the assembly because it means the Assembly does not have access to the ‘most informed and researched opinions’. However, that is why they sent in their submission so that they could still contribute to the campaign.

The submission states that its goal is to ‘go beyond the letter of the law’ of the Eighth Amendment and to analyse ‘broader context’ and the ‘impacts’ on ‘Irish society as a whole’. Conway, in particular, feels that abortion pills should be made available in Ireland due to the fact that the World Health Organisation (WHO) described them as ‘essential medicine’.

“For me, what’s most important is that the laws in Ireland don’t operate in breach of the human rights of women as they currently do,” Conway said.

According to a poll by Amnesty Ireland in February 2016, 87 percent of respondents are in favour of expanding access to abortion in Ireland, at least in the minimum circumstances required under international human rights law.

In June 2016, the UN found that Ireland’s ban on abortion caused inhumane treatment to Amanda Mellet whose foetus has a fatal abnormality.

However, if we look at countries who have a rape stipulation in place, they have a mechanism there whereby a judge, a public prosecutor or police chief look at the case and try to evaluate whether this woman truly was raped or not.

“I believe that if we introduced a rape ground in this country, we already have a situation where it’s one of the most underreported crimes here in Ireland. I suspect what would end up happening if they could afford it, those women will still go to England. Why put yourself through the ordeal of reporting and proving rape if you could just hop on a plane and avoid all of those questions?” Conway said.

But on the ethical side of the argument, is it ethical to force a woman to give birth to a child she does not want? Is it ethical to force a child to be born into a family that cannot financially or emotionally support them?

No matter whether you think the matter is a legal issue or an ethical issue, the one thing that we should all agree on is that this is an issue that needs to be discussed and debated, such as is happening in The Citizen’s Assembly.

As H.L.A. Hart, a British legal philosopher once said: Surely if we have learned anything from the history of morals it is that the thing to do with a moral quandary is not to hide it.”

Shauna Bowers

Illustration by Laura Duffy