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Irish Left Review
Joined up thinking for the Irish Left

offsite link New Books Worth Reading Mon Sep 19, 2016 23:25 | Seán Sheehan

offsite link 13 Billion ? Lucky for some? Mon Sep 05, 2016 13:04 | Tony Phillips

offsite link Rebuilding Ireland: Long on Promise, Short on Detail Mon Aug 29, 2016 22:20 | Eoin O'Mahony

offsite link Brexit and Other Issues: Comments on the Current Situation Mon Aug 29, 2016 21:52 | Brendan Young

offsite link Bin Charges: From Private Circus to Public Service Tue Jun 21, 2016 12:38 | Michael Taft

Irish Left Review >>

Spirit of Contradiction

offsite link Officials and Provisionals Sat Apr 01, 2017 22:54 | James O'Brien

offsite link Interview with Cathal Goulding Mon Dec 26, 2016 17:11 | Cathal Goulding

offsite link Trump, Russia and the CIA Sat Dec 10, 2016 18:23 | Gavin Mendel-Gleason

offsite link Why is my rent so high? Mon Oct 31, 2016 18:51 | Gavin Mendel-Gleason

offsite link Review of Capitalism: Competition, Conflict, Crises by Anwar Shaikh Sun Oct 30, 2016 16:21 | Gavin Mendel-Gleason

Spirit of Contradiction >>

Public Inquiry
Interested in maladministration. Estd. 2005

offsite link Diarmaid Ferriter: Denial and the language of cute hoorism

offsite link Fianna Fail liars Anthony

offsite link RTE journalist Claire Byrne brings Fine Gael TD Alan Farrell to heel Anthony

offsite link Is the establishment media finally waking up to political corruption? Anthony

offsite link Bus strikers beat themselves up Anthony

Public Inquiry >>

The Saker
A bird's eye view of the vineyard

offsite link BREAKING: Personal message from Xi Jinping to Vladimir Putin: our friendship is unbreakable Thu Apr 27, 2017 22:15 | The Saker
by Alexander Mercouris for The Duran Chinese President Xi Jinping sends personal message of friendship to Russian President Putin on China’s behalf, scotching attempt by US to make trouble between

offsite link Syrian War Report ? April 26, 2017: Syrian Army Makes Important Gains In Homs Province Thu Apr 27, 2017 18:23 | Scott
https://southfront.org/syrian-war-rep... If you?re able, and if you like our content and approach, please support the project. Our work wouldn?t be possible without your help: PayPal: southfront@list.ru or via: http://southfront.org/donate/ or

offsite link Obama & Macron: Brand changes courtesy of capitalist empire Thu Apr 27, 2017 12:49 | The Saker
by Ramin Mazaheri If leaders lead and followers follow, then we?ll have to wait another election cycle to be rid of Emmanuel Macron. Since Sarkozy l?américain France is a follower.

offsite link Moveable Feast Cafe 2017/04/27 ? Open Thread Thu Apr 27, 2017 02:30 | Herb Swanson
2017/04/27 01:30:01 Welcome to the ‘Moveable Feast Cafe’. The ‘Moveable Feast’ is an open thread where readers can post wide ranging observations, articles, rants, off topic and have animate discussions

offsite link Saker Podcast #14: a religious smorgasbord Wed Apr 26, 2017 21:18 | The Saker
Dear friends, Here is my newest podcast, this time deal with a few religious questions I have been asked by readers. You can also listen to it on YouTube: And

The Saker >>

admin - Tue Apr 25, 2017 20:42
Lawyers for Choice has produced a draft bill that gives effect to the Citizens? Assembly?s recommendations for abortion law reform. The purpose of the Bill is to codify the Assembly?s proposals, and to show how simply and easily that can be done. The provisions reflect the choices of the Assembly members? and not those of […]

Lawyers for Choice has produced a draft bill that gives effect to the Citizens? Assembly?s recommendations for abortion law reform. The purpose of the Bill is to codify the Assembly?s proposals, and to show how simply and easily that can be done. The provisions reflect the choices of the Assembly members? and not those of Lawyers for Choice.

Regrettably, the Assembly?s deliberations on legislation were confined to grounds for accessing abortion only. Experience worldwide shows that, even where grounds are well-drafted, abortion can be difficult to access. The Oireachtas must pay attention to barriers to access such as obstructions outside of clinics, the circulation of misleading information on abortion, underfunding of services, and conscientious objection. Any final legislation must make provision for these matters.

In addition, we regret that the Assembly was unable to consider the decriminalisation of abortion, which is clearly required by international human rights law.

We welcome the Citizens Assembly?s recommendation that abortion be available on request up to 12 weeks, and on socio-economic and health grounds up to 22 weeks. However, we are concerned that the Assembly process did not always give members the opportunity to consider international best practice in the drafting of abortion legislation. To this end we note:

  • The Assembly has recommended making abortion available predominantly only in exceptional cases. ?Exceptions-based? legislation can stigmatise abortion by treating it as being different to other forms of medical care. It imposes burdens on pregnant people to establish that their abortions are ?deserving?. It is also vulnerable to unduly conservative interpretation, which inhibits women?s access to services; for example, by distinguishing sharply between health and socio-economic grounds. We favour legislation which recognises and positively guarantees equal access to abortion care for all those who need it.
  • We recommend that no ?rape ground? should be included in any legislation. In other jurisdictions, accessing abortion on grounds of rape requires women to ?prove? their rape to the satisfaction of medics, police or courts. Such requirements reinforce damaging myths about rape victims? credibility and lead to trauma and delay. Instead, the Oireachtas should ensure that other broader grounds (e.g. risk to health) can meet the needs of those pregnant through rape.
  • We do not support a specific disability ground short of fatal foetal abnormality. Its inclusion is stigmatising. Again, care should be taken to ensure that other grounds are drafted appropriately to ensure that they can meet the needs of those unable to continue a pregnancy after a diagnosis of severe foetal anomaly. The state is reminded of its international obligations to provide appropriate social and economic support, information and medical care to those in this position.
  • We regret that the Assembly?s recommendations include language from the case-law generated by the 8th Amendment e.g. ?unborn? and ?real and substantial risk? to life. These restrictive legal concepts have no place in Irish law once the Amendment is repealed or replaced and are unhelpful for medical practitioners.

 

The draft Bill can be accessed in full here.

Eoin Daly - Mon Apr 24, 2017 11:50
NUI Galway has announced the appointment of Professor Siobhán Mullally as the Established Professor of Human Rights Law and Director of the Irish Centre for Human Rights at NUI Galway. Professor Mullally will take up her post in September 2017. Professor Mullally is currently a Professor at the School of Law, UCC where she also […]

NUI Galway has announced the appointment of Professor Siobhán Mullally as the Established Professor of Human Rights Law and Director of the Irish Centre for Human Rights at NUI Galway. Professor Mullally will take up her post in September 2017.

Professor Mullally is currently a Professor at the School of Law, UCC where she also holds the position of Vice-Head of the College of Business & Law. She was recently elected President of the Council of Europe expert group on human trafficking, GRETA. Professor Mullally is also a Commissioner of the Irish Human Rights & Equality Commission and a member of the Permanent Court of Arbitration in The Hague.

For further information see here.

admin - Sun Apr 23, 2017 12:31
We are pleased to welcome this guest post from Dr. Deirdre Duffy from the Liverpool-Ireland Abortion Corridor Project. As the Citizens? Assembly turn to the ?when? of abortion access, many are highlighting that allowing first trimester abortion in specific cases is highly problematic. The question of access and first trimester care is complex so it […]

We are pleased to welcome this guest post from Dr. Deirdre Duffy from the Liverpool-Ireland Abortion Corridor Project.

As the Citizens? Assembly turn to the ?when? of abortion access, many are highlighting that allowing first trimester abortion in specific cases is highly problematic. The question of access and first trimester care is complex so it is worth summarising the key problems with first trimester focused access.

Barriers to access

A central problem in the timely administration and delivery of high quality care is the existence of ?barriers to access?. These barriers can be structural, organisational, social, or personal and are usually a combination of a number of factors which prevent those who need care from getting it. By ?getting? here it is vital to recognise that patients are not passive – care is a dynamic process of requesting/approaching and being given care.

Importantly for Ireland, barriers to access are not just imposed from above but are embedded in cultures of care. So removing a barrier is more complex than simply funding an abortion clinic (for example) or making abortion legal as while the clinic may exist it may not have trained staff or have staff willing to perform abortions.  

Access and abortion care

In addition to questions about availability of trained professionals, financing of facilities, and proximity, abortion care has to factor in further barriers relating to abortion stigma and attitudes to abortion and women seeking abortion. As a result of abortion stigma, women may not approach care facilities for fear of repercussions. This barrier can be compounded by underlying norms and social factors both within and beyond caring institutions. If, say, a religious organisation which opposes abortion in all circumstances is placed in control of a hospital, a significant barrier to abortion care will inevitably result.

Abortion care access also needs to recognise the ?timings? of care-seeking and care-giving. Women may not know they are pregnant until well into the first trimester. Furthermore, health problems (foetal and maternal) become more apparent as pregnancy progresses. Acute care needs may only be detected in the second trimester or later and even then access may be limited by a lack of geographically proximate facilities.

What does this mean for a first trimester focused law?

The key problem with a first trimester law in Ireland is that barriers to first trimester abortion care are not impacted by liberalisation of abortion under 12 weeks gestation. Doran and Nancarrow?s systematic review (http://jfprhc.bmj.com/content/41/3/170.short?utm_source=rss&utm_medium=rss; paywall) on barriers and facilitators for abortion care in countries where abortion is legal and the Guttmacher Institute?s regular reviews of barriers to care in the United States highlight core barriers which may not be impacted by this sort of change. These are divided into patient and provider perspectives in the table below.

Women?s perspectives Provider perspectives
Lack of proximate services Moral opposition
Lack of appointments/waiting lists Lack of training
Negative attitudes of staff Too few physicians
Associated costs of abortion Staff harassment
Insufficient hospital resources

Synthesis of barriers to first trimester abortion care – from Doran and Nancarrow (2015)

What would this mean in practice?

If a first trimester liberalisation is instituted then the front-line of sexual and reproductive and maternity care in Ireland will need to be closely explored. As research I have already been involved in highlighted (see here: https://mcrmetropolis.uk/blog/what-happens-when-women-have-to-travel-abortion... ) communication between services in Ireland is not consistent. There are also significant issues relating to the cultures in hospitals – particularly if the Sisters of Charity are to be given ownership of the National Maternity Hospital, the key destination for acute maternal and foetal medicine – which will not be addressed by a legislative change.  

 

Máiréad Enright - Thu Apr 20, 2017 17:28
by Mairead Enright. (@maireadenright) In Ireland, the abortion debate is often conducted by reference to Britain. Conservatives associate the Abortion Act 1967 with the bogeyman of  ‘abortion on demand’. In the struggle to ‘be different from Britain’, we perhaps miss some of our commonalities with other countries which have taken a similar route to regulating abortion. […]

by Mairead Enright. (@maireadenright)

In Ireland, the abortion debate is often conducted by reference to Britain. Conservatives associate the Abortion Act 1967 with the bogeyman of  ‘abortion on demand’. In the struggle to ‘be different from Britain’, we perhaps miss some of our commonalities with other countries which have taken a similar route to regulating abortion. Ireland is unusual in ‘writing abortion into the Constitution’, but it is not alone. It is very difficult to generalise across jurisdictions, especially because Constitutions perform different functions in different jurisdictions, and are subject to different procedures for amendment. However, a quick survey suggests that Ireland has only about 20 fellow travellers; a few in Europe (such as Hungary and the Czech Republic), more in South America, where the trend began (Chile, Honduras, Ecuador, El Salvador) and the rest in Africa (Swaziland, Somalia, Uganda, Kenya, Zambia, Zimbabwe etc). I am not sure if this is an exhaustive list, and would be grateful for corrections and references. Constitutional abortion provisions take a variety of different forms. Some date to the 1980’s while others are very new.

  • The most common is a broad assertion that the right to life begins at conception or before birth: Czech Republic, Slovak Republic, Hungary, Dominican Republic, Ecuador, El Salvador, Guatemala, and Paraguay. Madagascar has a similar ‘right to health’ provision.
  • Statements of the unborn’s right to life: Chile and statements of the unborn’s right to be treated legally as a born person: Honduras, Peru. Interestingly, like the 8th Amendment, these also date from the late 1970’s/early 1980’s.
  • Provisions which equate the right to life of the unborn with that of the mother: Only Ireland and the Philippines have done this.
  • Provisions which set out the grounds for access to abortion: Somalia, Swaziland and Kenya.
  • Provisions deferring to the legislature, stating that abortion is illegal except as provided by legislation: Uganda, Zambia and Zimbabwe. Kenya and Swaziland have a similar provision, in addition to stating current specific grounds.

What have the results been?

A constitutional abortion provision is generally a mark of restrictive abortion laws. As shorthand, if you use the Center for Reproductive Rights well-known map of abortion laws, you will find most of these countries in the ‘red’ zone with Ireland; officially prohibiting abortion or allowing only life-saving abortions. These regimes are incompatible with women’s human rights to freedom from inhuman and degrading treatment, health, autonomy and so on. A few of our fellow-travellers are in the ‘yellow zone’, permitting access on grounds of physical and sometimes mental health and foetal impairment. Whatever the law says on paper, practical access to abortion is often poor, even for those women entitled to it in principle.

However, not all of these countries have such restrictive abortion laws. Hungary and the Slovak and Czech Republics have more liberal abortion laws than Ireland, at least on paper. A general statement of the obligation to protect unborn life does not in itself translate into either criminalisation, or restrictive grounds for abortion. The Constitutional Court of the Slovak Republic held in 2007 that a 12 week period of abortion on request was compatible with the constitutional provision on unborn life. Despite the Constitution’s foetal life provision, it was possible for the Slovak court to come to a similar position to that taken by constitutional courts elsewhere in Europe. Ireland’s Supreme Court has not be able to draw similar conclusions because the Supreme Court in X  held that the mother’s right to survival and the foetus’ right to be born are equal.

That said,  foetal life provisions are malleable, as are all constitutional rights. They operate in their particular context. Similar constitutional provisions are invoked to support regressive abortion policy in Hungary,and criminalisation of women in Ecuador. They can also ground extremely restrictive judgments by superior courts, as happened, for example, when an attempt to decriminalise abortion in the Dominican Republic was struck down, and when the Chilean constitutional tribunal blocked government efforts to distribute the morning after pill. Famously in El Salvador in 2013, the Supreme Court denied a seriously ill woman a termination even though her foetus could not survive birth.

The African provisions might catch the eye of those lobbying for ‘replacement’ rather than repeal. Some of these are indeed liberalising amendments by comparison with what preceded them. However, they are vulnerable to political intransigence. In Kenya, for example, lack of guidelines interpreting the constitutional provision has left doctors unwilling to provide legal abortion services. A case is forthcoming in the High Court. In Swaziland, although women’s groups welcomed the constitutional reform, no steps have been taken to legislate for abortion. Inconsistent interpretation of the abortion law has also been a problem in Uganda. As we know in Ireland, while abortion is in the constitution, legislators can (perhaps paradoxically) shirk their responsibility to legislate for it.

How does abortion end up in the Constitution?

It is impossible to answer that fascinating question fully for all of these very different countries, in all their complexity, in a single blog post.  In Ireland, constitutional abortion law has been a place to work through and make statements about national identity; abortion is the place where religious, post-conflict and post-colonial tensions meet. In 1983, PLAC capitalised on a period of political instability to place a near-permanent block in the way of women’s reproductive rights. It is an old adage that these tensions are worked out over women’s bodies, often with the assistance of powerful foreign lobbies.

Sometimes the identitarian nature of other countries’ law seems to appear on on the face of it. Somalia’s abortion provision, for example, explicitly references the shari’a. In other cases, we have to look to the context in which the provision was inserted into the Constitution.

Older constitutional abortion laws are associated with regimes which place a premium on national identity, whether as part of a process of self-definition after a prolonged period of violence, or as part of an ideology of ‘national security’ associated with military authoritarianism. Honduras’ provision is in a constitution passed in a period of instability after 10 years of military rule. One of the oldest constitutional abortion laws is Chile’s; passed by referendum in 1980 under Pinochet’s dictatorship. It is also interesting to note that many of the African countries mentioned, like Ireland, inherited their abortion law from the British in 1861. Abortion is tied up in postcolonialism, for them as for us.

Often the presence of an abortion provision reflects a religious backlash against what is perceived as unduly permissive abortion law. Zambia’s Constitution, for example, permits the government to legislate for abortion, and abortion is legal on narrow grounds. A new Zambian Constitution passed last year but a proposed constitutional provision – inserting a foetal right to life – has been deferred, pending the achievement of consensus. The new foetal life provision was intended to reflect the ‘Christian values’ underpinning the new Constitution. In Kenya, church leaders demanded a ‘no vote’ to the 2010 Constitution on the basis of its abortion provisions, even though they did not change the content of the pre-existing abortion law at all. Similar pressures succeeded in El Salvador, where in 1999 the Catholic church was a significant force in securing a foetal life amendment to the Constitution against feminist opposition. The involvement of the institutional Catholic church in repressing abortion reform is a theme across Latin America, where hostility to abortion has proved compatible with Leftist as well as with conservative government.

Conclusion

There is surprisingly little comparative work on constitutional abortion provisions. Ireland, however, would do well to pay attention to constitutional abortion provisions as a legal strategy; to ask what they have been used to do elsewhere; and to pass future laws which express, not a faith in Irish exceptionalism, but an awareness of the 8th Amendment’s global resonances. We tend to associate constitutional law with certainty and technicality, but a quick review of the history of constitutional abortion provisions suggests different associations; with stalled law-making, human rights abuse, and sacrifice of women’s interests in the pursuit of shared values.

Liam Thornton - Tue Apr 18, 2017 15:06
On Wednesday, May 3 2017 from 1.30pm UCD Centre for Human Rights is hosting a seminar in the Irish Human Rights and Equality Commission (map here) on Northern/Ireland After Brexit: Exploring the Human Rights Impact. With five speakers engaging with intersections of constitutionalism, gender, human rights and borders,this seminar seeks to reflect on human rights implications of Brexit upon the […]
#BrexitRightsOn Wednesday, May 3 2017 from 1.30pm UCD Centre for Human Rights is hosting a seminar in the Irish Human Rights and Equality Commission (map here) on Northern/Ireland After Brexit: Exploring the Human Rights Impact.
With five speakers engaging with intersections of constitutionalism, gender, human rights and borders,this seminar seeks to reflect on human rights implications of Brexit upon the constitutional settlement(s) on this island.
The full programme, speakers and paper abstracts can be accessed here.
Seminar delegates can register for the conference here (selecting the free of charge option unless CPD is required, for which there is a ?60 charge)
Charles O'Mahony - Tue Apr 11, 2017 19:20
Northumbria Law School is pleased to announce its 1st Summer Academy on Contemporary Challenges to International Criminal Justice(Law & Criminology) will take place in Northumbria University, Newcastle from 12-16 June 2017. This novel summer academy provides a unique opportunity for participants to acquire in-depth knowledge on the most pressing issues facing the international criminal justice system […]

Northumbria Law School is pleased to announce its 1st Summer Academy on Contemporary Challenges to International Criminal Justice(Law & Criminology) will take place in Northumbria University, Newcastle from 12-16 June 2017.

This novel summer academy provides a unique opportunity for participants to acquire in-depth knowledge on the most pressing issues facing the international criminal justice system from the leading scholars and practitioners in the field. Speakers will share their expertise and experience on a varied range of topics to encourage and inspire postgraduate research in law and criminology.

 The themes of the summer academy are:

  • Challenges to international criminal justice and the future of the International Criminal Court
  • Challenges to international cooperation in fighting transnational and international crimes
  • Challenges in prosecuting terrorism and religiously motivated violence
  • Challenges in ensuring effective redress for victims in post-conflict situations
  • Ecocide as a challenge to justice and security
  • Rule of law reform in post conflict countries

The list of distinguished speakers:

Professor William Schabas (Middlesex University/Leiden University)  Judge Howard Morrison (International Criminal Court) Judge Professor Wolfgang Schomburg (International Criminal Tribunal for the former Yugoslavia 2001-2008, Durham University)  Judge David Baragwanath (Special Tribunal for Lebanon)  Judge Professor Philip Weiner (Extraordinary Chambers in the Courts of Cambodia) Professor Roger S. Clark (Rutgers Law School) Mr Karim A.A. Khan, QC (Temple Garden Chambers, International Defence and Victims Counsel & former Prosecutor) Dr. Rod Rastan (Legal Adviser, Office of the Prosecutor, International Criminal Court)  Professor Tim Wilson (Northumbria University) – Professor Roger Clark (Rutgers Law School)  Dr. Mohamed El Zeidy (Legal Officer, Pre-Trial Chamber II, International Criminal Court) Dr. Tanya Wyatt (Northumbria University) Dr. Noelle Higgins (Maynooth University)  Professor Michael Rowe (Northumbria University)  Mr. Patrick Schneider (EU Office of the Special Representative for Bosnia and Herzegovina) Dr. Michael Kearney (Sussex University)  Mr. Krmanj Othman (KRG High Committee for the Recognition of Genocide against Yezidi Kurds and other minorities) ­ Dr. Patricia Hobbs (Brunel University) – Dr. Hakeem Yusuf (University Birmingham) Dr. Elena Katseli (Newcastle University)  Dr. Jamie Harding (Northumbria University) – Dr. Ibrahim Shaw (Northumbria University)  Professor Nigel South (University of Essex) Dr. Damien Short (University of London) Professor Chrisje Brants (Northumbria University) Professor Liz Campbell (Durham University) – Dr. Mohamed ‘Arafa (Indiana University) – Ms. Gemma Davies (Northumbria University) – Dr. David McGrogan (Northumbria University).

This event is a wonderful opportunity for international lawyers, legal interns, academics, and present and future postgraduate students to meet eminent scholars and practitioners in the field of international criminal justice as well as like-minded colleagues from all over the world.

For further information and to register please visit www.northumbria.ac.uk/about-us/news-events/events/2017/06/northumbria-univers... or email amina.adanan@northumbria.ac.uk. Participants may register to attend individual sessions or the whole event. Please note that places are limited and the deadline for ‘early bird’ registration is Monday 17 April 2017.

Máiréad Enright - Wed Mar 08, 2017 07:51
This International Women?s Day sees women worldwide engaged in strike action. Irish women strike for repeal of the 8th Amendment: the constitutional provision which prohibits abortion except where the pregnant woman?s life is at risk, and the only means of avoiding that risk is to terminate it. But more than that, the law pledges the […]

This International Women?s Day sees women worldwide engaged in strike action. Irish women strike for repeal of the 8th Amendment: the constitutional provision which prohibits abortion except where the pregnant woman?s life is at risk, and the only means of avoiding that risk is to terminate it. But more than that, the law pledges the state to protect the right to life of the ?unborn?, from the moment of implantation, against the actions of the woman who carries it. In recent years, this law has been used  to delay medical treatment to a woman suffering an inevitable miscarriage at the cost of her life; to keep a woman?s body on life support after brain-death in an attempt to prolong her second trimester pregnancy to viability;  to  forced Caesarean section on a young suicidal rape victim; to deny countless women the right to refuse a wide range of interventions in pregnancy and birth.  

Fearful expulsion is the abortion law?s most ordinary side-effect. Women needing abortions – perhaps a dozen a day – travel abroad, while others perform early medical abortions at home. Irish women save to pay for their own abortions: for travel, accommodation and medical fees. In the time it takes to save, they find that they need more expensive abortions because their pregnancies are further along. The abortion regime also depends on women?s ability to access abortion out of sight; whether by travelling abroad or by procuring one in secret at home. Some solidarity is available for funding, but nobody can buy you time.  On and off the job, abortions mark working time. Women plan abortions for weekends, ?sick days?, paid and unpaid ?holidays?. By taking women?s bodies out of the workplace for a day, this strike underscores not only the importance of reproductive labour in general, but these specific relations between work and managing and undoing unwanted pregnancy.

The publicness of this strike is an important counterweight, not only to the secrecy of travel and of home abortion, but to the shaming and silencing on which effective regulation of women?s reproductive lives depends. It makes visible many of the networks of care and solidarity which allow women to survive that silencing and shame. And in a week which saw yet another official ?rediscovery? of the recent brutal history of incarceration of unmarried pregnant women in Ireland in institutions which set store by the the terms of women?s assembly in church, in religious parades and in the streets, the importance of this black-clad public assembly, this unexpected return, cannot be overstated.

But Strike for Repeal is also about law-making. The strike is framed as a response to the government’s failure to call a referendum by March 8th. There is clear and growing public demand for liberalisation of the law. Left-wing TDs have repeatedly asked for an immediate response to that demand: not only in the shape of a referendum, but of a softening in the worst effects of the abortion regime, by reducing criminal penalties, regulating exploitative bogus pregnancy counselling and providing some relief for women whose foetuses are diagnosed with fatal foetal anomalies. The government has repeatedly blocked these demands. It installed the Citizens? Assembly as a precursor to any legislative deliberation on the prospect of constitutional change. The Assembly consists of a judge (an ‘appropriate woman‘) and  99 citizens chosen by a polling company; supposedly representative of the people in terms of gender, age and geography. It is an exercise in ?deliberative democracy? designed to produce ?vital consensus on behalf of us all?. However,  the government has made no firm commitment to implement the Assembly?s recommendation. These  will likely be filtered through further committees. No timeline has been set for proposal of a final reform bill. A popular referendum is not expected until 2018 (coinciding, of course, with a Papal visit). The strike protests delay: the refusal to recognise the abortion issue as urgent. That denial of urgency must be understood in the context of a broader attitude to law-making. The government presents aching slowness and caution as essential to any legal change on abortion  because it is understood as an issue of unique moral weight. The judge-led Assembly embodies a desire to discipline processes of legal change, ensuring an incrementalist approach which is presumptively civilised and civilising, never destabilising, immune to popular politics.

What the government calls disciplined law-making has two characteristics: ?neutrality? and ?balance?. A concern for neutrality ensured that no lawyers who had expressed an opinion on the Irish abortion debate were invited to present to the Assembly, or appointed to the panel of academics which advised the Assembly on the selection of expert speakers. When the Assembly received over 13,000 written submissions, neutrality apparently justified the decision to select 300 at random for the Assembly members to read, without regard for content or repetition. ?Balance’ means something more than impartiality. Speakers, whether advocates or experts, generally appeared in pairs: pro-choice and pro-life. Balance, then, is always binary. Presentations of the law, interestingly, were not made in pairs. Perhaps, once experts in abortion law had been excluded from Assembly proceedings, no balance was required in this respect. The perceived need to ?balance? presentations allowed ample voice for pro-life and conservative religious organisations and speakers, well in excess of their support among the broader population. In the process, it obscured the pluralism of the pro-choice majority. The Assembly heard, not only from pro-life medical ethicists and religious leaders, and Irish conservative organisations, but from prominent American pro-life activists, chosen by Irish organisations to speak in their place. Meanwhile, several Irish pro-choice advocacy groups were excluded, including important representative organisations for women who have had abortions, such as the Abortion Rights Campaign, and Termination for Medical Reasons Ireland. No organisation representing women of colour was invited to speak. When the Assembly heard women?s scheduled direct accounts of abortion, it was not in person, but in the form of short, edited and anonymised audio recordings of interviews with women who had ended pregnancies in a narrow range of circumstances. For ?balance?, some of these recordings were of women who had not ended their pregnancies.  By adopting ?neutrality? and ?balance? as lodestones of the process, the Assembly suggests that the statements and presentations made to Assembly members are all equally valid and valuable found objects, which speak for themselves, rather than contested and contestable political artefacts created for and by the Assembly. In particular, non-interventionist neutrality ensures that the Assembly operates without any ?fact checking? resources. So, by and large, the members are left to weigh presentations and submissions for themselves, or  rely on other speakers to devote some of their allocated time to correcting misrepresentations. Several members of the Assembly have asked penetrating, and at times critical questions, and recently indicated support or displeasure through spontaneous applause. Some women speaking before the Assembly have also been able to subvert the imposition of particular forms of civility.Watch, for example, the gesture of Sinead Redmond of Parents for Choice giving her testimony with her baby daughter; their own pairing gently provoking conservative conceptions of the incompatibility of motherhood and choice. However, these moments of substantive critical agency  are just that – performative moments – which occur in spite of, rather than because of the formal Assembly process.

It may be that the Citizens’ Assembly process is supposed to reassure women. It is supposed to remind us of the Constitutional Convention, which we are assumed to remember as the liberal pump-primer for Marriage Equality. Watching the Citizens’ Assembly meetings over the last 4 months, I have been reminded of other antecedent processes established to address historical gender-based violence against women – also judge-led; also scrupulously careful to restrict space for women?s direct testimony; also insufficiently critical of narratives that seek to justify and legitimate treatment which women call injury and harm; also designed to settle, neutralise and rebalance women’s claims to reparative and transformative reproductive justice. The Assembly, on this reading, reinforces an expectation that women are not entitled to appear before law on their own terms, even where law is to be applied to the most intimate dimensions of their lives.

Jon Berger wrote that mass demonstrations were not, as is often commonly thought, an attempt to convince the state to change a hated policy. Instead, they artificially created events, separated from everyday life, which ‘express political ambitions before the political means necessary to realise them have been created’. The state’s response to these ambitions does not matter very much. What matters is that those participating, and those sympathetically witnessing the demonstration become more aware of their shared purpose and fate; feel themselves standing together against the state’s projects. Berger argues that demonstrations are ‘rehearsals of revolutionary awareness‘; they may foreshadow revolution, or perhaps revolutionary return of something suppressed. Strike 4 Repeal is a complex movement. In its demand for an immediate referendum, it enacts a struggle for law: it is a necessary agonistic demonstration of appetite for law and law-making processes which are not contained by appeals to balance and neutrality. It is a warning of the impossibility of suppressing women’s diverse and complex demands for legal change and a rejection of past governmental tactics of repression and control. Women gather in black today at 12.30.The recent work of Jesse Jones on gender, reproduction and Irish law references an Italian feminist protest chant which captures the possibilities: ?Tremble, tremble, the witches have returned!” 

GuestPost - Sun Feb 26, 2017 20:19
  We are pleased to welcome this guest post from Donnchadh O?Conaill, of the Department of Philosophy, History, Culture and Art Studies at the University of Helsinki. This is the fourth of a series of posts Donnchadh is writing on presentations of ethicists to the Citizens Assembly. In the context of debates about abortion, autonomy is often appealed to by […]

 

We are pleased to welcome this guest post from Donnchadh O?Conaill, of the Department of Philosophy, History, Culture and Art Studies at the University of Helsinki. This is the fourth of a series of posts Donnchadh is writing on presentations of ethicists to the Citizens Assembly.

In the context of debates about abortion, autonomy is often appealed to by those promoting greater legal access. Those who wish to restrict access to abortion must either argue that autonomy is not as ethically significant as is often assumed, or that in the specific case of abortion the autonomy of pregnant women should be limited. Dr. Dónal O?Mathúna explores each of these lines in his presentation to the Citizen?s Assembly.[1]

O?Mathúna?s initial characterisation of autonomy is very similar to that offered by Dr. Joan McCarthy: ?our freedom to make decisions about our own lives?.[2] He acknowledges that in general it is a good thing that personal autonomy has become more widely respected, but cautions that it is also possible to pay too much respect to it. Furthermore, he argues that this form of autonomy, which he terms ?self-rule autonomy?, is inadequate when it comes to thinking about abortion. He offers in response a notion of ?relational autonomy?, in which our autonomy should be limited by other ethical principles, such as the responsibilities we have towards others:

Self-rule autonomy leads to isolation because our focus is on ourselves, not our relationships. Relational autonomy involves those around the pregnant woman and reminds them of their ethical responsibilities.

The first problem with O?Mathúna?s argument is that he seems to mischaracterise self-rule autonomy and its role in ethical thinking. The principle of autonomy concerns the individual agent: if a decision concerns his or her own life, then he or she should be the person to decide what to do. O?Mathúna also makes claims about the autonomous agent, namely that he or she will be concerned only with his or her own interests or desires: ?Self-rule autonomy means I choose what I want?. But this is not what the principle says. An autonomous agent is free to make decisions concerning her own life, but it does not follow that she will not (or should not) take anyone else?s interests or opinions into account. Autonomy does not require us to be either selfish or focused on ourselves.

The second problem is that O?Mathúna does not distinguish two very different points which one might raise about self-rule autonomy. First, one might point out that this form of autonomy is of little help in determining which choices are morally speaking better than others. Second, one might argue that autonomy does not apply in certain cases, or can be limited, in that certain actions should not be permitted by law.

The difference between these points is crucial in the context of discussing whether and in what way autonomy should be legally limited. The first point is of little use in such discussions. Appeals to autonomy are not usually intended to help decide what we ought to do, but rather to decide who ought to be allowed to choose. The fact that autonomy does not determine what we should do does not show that it should be limited; rather, it suggests that autonomy should be supplemented in our ethical decision-making by other ethical principles, reasoning, and empathy. Also, note that this supplementation concerns ethics, a person or persons deciding what they ought to do; it does not concern how the law should be framed. Of course, the law should not be completely divorced from ethical concerns, but nor should it simply mirror our ethical views, and not only because many of us in fact disagree concerning different ethical issues.[3]

O?Mathúna raises this first point at a number of places in his article, without seeming to realise that it is of doubtful relevance to the legality or illegality of abortion. He also seems to run together the first and second points, as in the following passage:

The whole basis of society is that certain autonomous acts are neither ethical nor legal. I can lie, cheat, hurt others, or just refuse to help them, but just because I freely chose those things does not make them ethical. We may have the freedom to choose, but still we must decide if our choices are ethical.

It is true that certain autonomous acts are neither legal nor ethical. However, that certain actions are unethical does not by itself mean that they should be illegal. In general, many acts which most of us agree are unethical are permitted by law, in large part out of respect for personal autonomy. Indeed, some O?Mathúna?s examples illustrate this. In Ireland there is no law against lying (except in specific circumstances, such as when one is under oath), nor against hurting others (unless one does so in certain ways, e.g., violently), nor against refusing to help others. These actions may be unethical, but on its own this does not seem a good basis for arguing that they should be illegal.

O?Mathúna is on firmer ground when making the second point, as when he gives examples where certain actions are proscribed: ?We put limits on people?s autonomy legally, by insisting they pay taxes or obey the rules of the road?. However, if we regard respect for autonomy as an important part of deciding which laws should hold, limits to autonomy need in each case to be supported by appropriate ethical argument. And there is surprisingly little of this in O?Mathúna?s presentation. In support of limiting the autonomy of pregnant women, he briefly mentions that abortion both harms the foetus and constitutes an injustice to it. But in neither case does he engage in any detail with the substantive ethical and philosophical issues which such claims raise: e.g., how morally significant is the harm which abortion causes to the foetus? Is a foetus the kind of entity for which questions of justice or fairness can arise? If abortion is unjust to the foetus, does it always outweigh the possible injustice of forbidding women access to abortion? Without discussion of these and related issues, O?Mathúna?s defence of the need to limit the autonomy of pregnant women is sketchy at best.

As mentioned earlier, O?Mathúna puts forward a notion of relational autonomy, on which autonomy is balanced by other ethical principles, such as ?the responsibilities intimately linked to our choices?:

If we get into bed with someone, we take on certain responsibilities whether we acknowledge them or not. Intended or unintended, a pregnancy may result. This is partly why becoming sexually active is such a momentous decision, with most societies urging that it be reserved until a committed, permanent relationship exists to welcome a child into society.

By agreeing to sex, one does take certain ethical responsibilities, most obviously towards the person with whom one is having sex. But it is not clear whether one also takes on any responsibilities to a person who is not yet conceived. Furthermore, it is not clear whether the responsibilities one takes on in agreeing to sex carry enough ethical weight that one should be legally prevented from acting in certain ways. In this context, it is worth noting that regardless of what responsibilities one thinks a person who has sex thereby takes on, relatively few societies, and none in the Western world, outlaw sex outside of a committed, permanent relationship.

Abortion in cases where the pregnancy is a result of rape presents a different challenge. O?Mathúna?s position is that this does not make a difference, ethically speaking, to the issue of whether or not to allow abortion: ?If allowing the unborn to grow and experience life is the right thing in other situations, it does not matter how the pregnancy came to be.?

Many people would regard this view as doctrinaire, and as minimising or ignoring the moral plight of the woman who has been raped. This criticism may not be necessarily well-founded. For someone convinced that the life of the foetus is as morally significant as that of any other human, abortion is not the kind of action which could ever be permitted on the grounds of minimising suffering, even the suffering of someone who has been terribly wronged. By way of (an imperfect) analogy, it is illegal for relatives of a murder victim to kill the person responsible out of vengeance, no matter how grievous the loss they have suffered. This is compatible with understanding the completely human urge many people would have to do so.

However, whether or not it is defensible on its own terms, this view of abortion after rape seems to be quite unpopular in Ireland.[4] More generally, such cases present opponents of a referendum on abortion with a quandary. Arguing against abortion in such circumstances, even if it is consistent with their ethical views, risks presenting their position as at best unsympathetic and at worst downright callous. O?Mathúna?s notion of relational autonomy can be seen as in part an effort to present the anti-abortion case in a softer light, but it is doubtful whether he succeeds.

A final point about O?Mathúna?s notion of relational autonomy, in the context of discussing Ireland?s abortion laws. If the responsibilities pregnant women have towards others justify prohibiting abortion, it is reasonable to ask whether they would justify prohibiting women from travelling to access abortion in jurisdictions where it is legal. If they do not justify prohibiting travel, it is worth asking why this might be. It is not clear whether the notion of relational autonomy allows one to distinguish between these cases, or how it might do so. This suggests that relational autonomy is of limited use in considering the law around abortion, or at least that it stands in need of much greater development if it is to bear the weight of the argument O?Mathúna is asking it to carry.

[1] Dr. O?Mathúna?s presentation is available at https://www.citizensassembly.ie/en/Meetings/Third-Meeting-of-the-Citizens-Ass... .

[2] Dr. McCarthy?s presentation is also available at https://www.citizensassembly.ie/en/Meetings/Third-Meeting-of-the-Citizens-Ass... .

[3] One might disagree with this claim, but in that case it is hard to see how there could be a place for any substantive principle of autonomy in one?s view of either ethics or the law.

[4] In an Irish Times/Ipsos MRBI poll, 74% of people wanted abortion available in circumstances including where the pregnancy is the result of rape (Stephen Collins, ?Irish Times Poll: Majority Want Repeal of the Eighth Amendment?, Irish Times 7/10/2016 http://www.irishtimes.com/news/social-affairs/irish-times-poll-majority-want-... ).

GuestPost - Mon Feb 20, 2017 11:13
The Hague Justice Journal First Edition in Association with the International Criminal Tribunal for the former Yugoslavia launches its call for submissions The editorial board of The Hague Justice Journal (HJJ) is delighted to announce that it is soliciting submissions for its 2017 volume relating to the ICTY?s legacy in this its final year of […]

The Hague Justice Journal First Edition in Association with the International Criminal Tribunal for the former Yugoslavia launches its call for submissions

The editorial board of The Hague Justice Journal (HJJ) is delighted to announce that it is soliciting submissions for its 2017 volume relating to the ICTY?s legacy in this its final year of operations. Such submissions will include selected papers from the ICTY Legacy Conference due to be held from 23-24 June 2017 in Sarajevo, Bosnia, and will be published in Autumn 2017. The HJJ undertakes this endeavor in formal cooperation with the ICTY, in line with a number of legacy-related activities being organized in 2017 by the ICTY and by the Peace, Justice and Security Foundation.

The objective of The Hague Justice Journal is to promote a profound collective reflection on the problems and challenges facing international law. Rejuvenated in 2016 by a group of international lawyers, the Journal addresses the major dilemmas of international justice from inter alia the perspectives of law, international relations, jurisprudence, criminology, sociology, penal philosophy, and the history of international judicial institutions. It is an online law journal intended for the benefit of academics, practitioners, graduate and post-graduate students, government officials, as well as the many people working for international organizations.

For more information on the journal please see: http://haguejusticejournal.org/?utm_source=rss&utm_medium=rss

In keeping with the general theme of the ICTY Legacy Conference selected papers for publication should ideally address:

  • Institutional and Administrative Legacy g.Witness protection and support ? post testimony support: needs and resources; reparations and victim status; gender sensitive witness support.
  • Normative Legacy ? Synergies, cross-fertilization, and discrepancies between the jurisprudence of the ICTY, national jurisdictions, regional courts, and other international courts and tribunals; with a special focus on: how ICTY jurisprudence has influenced national jurisdictions, for instance in the region of the former Yugoslavia; and how domestic law and jurisprudence has informed international justice.
  • Operational Legacy/Complementarity ? Challenges faced by the Office of the Prosecutor in investigating and prosecuting conflict-related crimes, including challenges in building leadership cases and obtaining access to evidence; OTP’s capacity building challenges and outcomes; perspectives on operational challenges facing national jurisdictions and potential/demonstrated solutions (including through lessons learned and applied from OTP’s experience).
  • Legacy on Access to Justice for Women ? The evolution of jurisprudence on conflict-related sexual violence; participation of women in the justice process; working with NGOs and civil society to identify witnesses; protection of sensitive witnesses/victims; compensation mechanisms for sexual violence victims in national jurisdictions.
  • Participatory Legacy ? Defence in international criminal trials at international and national courts; defence investigations; defence organizations and offices; rights of the accused.
  • Historic Legacies ? Historic value of the extensive records of the ICTY; records as a means of combating denial; access to ICTY records and archives in the region; importance of user friendly information sharing and judicial databases.
  • Non-Judicial Legacy ? The ICTY and its limitations; to what extent can a judicial institution contribute to peace, reconciliation and deterrence/prevention or otherwise non-repetition of crimes; how to fill the gap through non-judicial mechanisms; the importance of memorialisation and the consolidation of the rule of law through capacity building.
  • Leaving a Legacy: Outreach Activities ? What should be the scope and goals of outreach on the ICTY legacy after the closure of the Tribunal; what are the needs of local communities in respect of the ICTY’s legacy; what are the responsibilities of different societal actors ? g.politicians, journalists, the legal community, civil society?

If who are interested in publishing a paper in the journal you should get in touch by email to the Chief Editor, Dr Anna Marie Brennan at: submission@haguejusticejournal.org

If you are interested in contributing to the volume please submit a 300-word abstract of the paper by 28 April 2017 to submission@haguejusticejournal.org along with the following information;

  1. The author?s name, title, and affiliation (if any)
  2. The author?s curriculum vitae/résumé; and
  3. The author?s contact details including phone number or email address.

Abstracts will be reviewed and successful contributors will be invited to submit first drafts of papers by email to: submission@haguejusticejournal.org in Microsoft Word format by  1 August 2017.

Papers between 6,000-12,000 words are invited. In exceptional cases, the editorial board will increase this limit to 15,000 words for Articles that make an important contribution to the field.

All manuscripts are double-blind peer reviewed. Receipt of all manuscripts will be acknowledged as soon as possible. All manuscripts should be double-spaced with a single spaced abstract and footnotes. Heavy footnoting is discouraged. Authors are invited to follow OSCOLA, which is the journal?s style guide, which may be obtained from the editorial assistant upon request, or from the journal?s web page.

 

GuestPost - Tue Feb 14, 2017 14:01
We are pleased to welcome this guest post from Donnchadh O?Conaill, of the Department of Philosophy, History, Culture and Art Studies at the University of Helsinki. This is the third of a series of posts Donnchadh is writing on presentations of ethicists to the Citizens Assembly; the first can be found here, and the second here.  While debates over the status of the […]

We are pleased to welcome this guest post from Donnchadh O?Conaill, of the Department of Philosophy, History, Culture and Art Studies at the University of Helsinki. This is the third of a series of posts Donnchadh is writing on presentations of ethicists to the Citizens Assembly; the first can be found here, and the second here

While debates over the status of the foetus are central to ethical and philosophical discussions of abortion, the freedom of women to choose to have abortions is crucial to political debates on this subject. Dr. Joan McCarthy presented a defence of this freedom, taking as her starting point ?the body and the life of the woman or girl who is pregnant?, considered as a moral agent, i.e., as making ethical choices in concrete situations.[1] In assessing the choices such women face, McCarthy draws on two principles: autonomy and justice.

By autonomy, McCarthy means ?an individual?s right to be free to live their lives according to their own values and beliefs without being arbitrarily restrained or limited by anyone else?. Respect for a person?s autonomy requires us to ?not unreasonably restrict or constrain the life choices? he or she makes. Autonomy is the basis for respecting the bodily integrity of other persons and allowing them a large degree of control over their own bodies.

In the case of pregnancy, McCarthy notes that while it can give rise to moral concerns or dilemmas for both men and women, the pregnancy itself occurs within the body of the woman, and because of considerations of bodily autonomy ?she has a special moral claim to make decisions about whether or not to continue the pregnancy?. This is the basis of the woman?s right to choose to have an abortion. McCarthy correctly notes that the sense of ?choice? which is relevant here does not connote anything the woman herself wants or finds attractive, but rather expresses her right to decide what to do with her own body and to live her own life. She articulates this view as follows:

Respect for their reproductive autonomy means respecting the choices that women or girls make in light of their values and goals and their views of the health and life risks that they feel able or willing to take [?] Refusal to accept their decisions is to treat woman and girls as passive objects and their bodies as containers or mere life support systems ? as means to achieving reproductive goals which are not their own.

This is a powerful argument, drawing on familiar and widely-accepted ideas of personal freedom, and noting just how drastically opponents of legal abortion are committed to restricting women?s freedom. Versions of this argument are perhaps the most commonly-articulated defences of legal abortion.

In assessing this argument, it is useful to consider the most common response offered by opponents of legal abortion. This response draws on a general point about autonomous actions, and a more specific point concerning the specific situation of a pregnant woman

First, as McCarthy herself notes, the principle of autonomy only applies in certain conditions. Autonomy should not be ?arbitrarily? or ?unreasonably? restricted, and part of what is at issue is which restrictions on autonomy count as unreasonable or arbitrary. More precisely, while moral agents are autonomous, they act in specific circumstances, which will often determine whether or not their action is morally or legally permissible. A familiar range of moral and legal debates concern circumstances which might held to limit our autonomy, ranging from the use of narcotics to driving while not wearing a seat belt to killing in self-defence. McCarthy is correct to draw our attention to the specific circumstances in which women are forced to choose concerning their pregnancy, but her opponents will point to other aspects of these circumstances, principally the life and moral status of the foetus.

Many opponents of abortion would accept that considerations of bodily autonomy mean that a pregnant woman ?has a special moral claim to make decisions about whether or not to continue the pregnancy?. For instance, it is widely accepted that while the man who helped to conceive the foetus may have a genuine moral interest in whether or not the pregnancy continues, the final decision should be left to the woman: pregnancy affects her bodily and personal integrity in a way in which it can affect no man. But opponents of abortion will argue that while the woman has a special moral claim to make decisions regarding the pregnancy, for the same reason she also has a special moral burden or duty of care towards the foetus. This moral duty, the argument will continue, is the basis for a legal prohibition of abortion. Personal autonomy allows each of us to perform a wide variety of actions, but certain actions are not morally permissible under any circumstances. These actions often involve harming other persons, but not always (for instance, consider laws governing animal cruelty, or laws prohibiting actions which might cause harm to others but which do not necessarily do so, e.g., prohibitions on drink driving).[2] Abortion, it will be suggested, is one such action: in this case, it is the harm to the foetus which is the moral basis for its prohibition.

The balance between McCarthy?s appeal to autonomy and her opponent?s appeal to the moral status of the foetus might be weighed in two different ways. The first is that McCarthy has presented what is at least a strong prima facie case in favour of allowing women the freedom to have abortions; her opponent has raised what might be a counter-argument, but one which needs to be supported by further reasons for thinking that the foetus actually has a moral status which can outweigh the bodily autonomy of the woman.

The second is that McCarthy has offered at best part of an argument in favour of the right to choose: considerations of autonomy are relevant, but they only justify the right to an abortion in conjunction with some further reason to think that such an action falls within the woman?s sphere of autonomous action, those actions which her autonomy allows her to perform should she choose. In other words, on the first way of weighing the arguments McCarthy has at least done enough to place the burden of proof on her opponent; on the second, McCarthy still has a burden of proof to discharge.

The second principle to which McCarthy appeals is justice, ?the right to be treated equally?, which ?requires that pregnant women are treated on an equal footing with non-pregnant people?. McCarthy outlines two ways in which Ireland?s current legal regime places extra burdens on pregnant women: medical uncertainty and the need to travel to access abortion procedures. These burdens, she suggests, are ?unequal? and ?disproportionate?. Not only do laws prohibiting abortion infringe on the autonomy of women; in doing so, they require that pregnant women not be treated on an equal footing with other persons.

As with the principle of autonomy, how one understands these extra burdens will partly depend on one?s background assumptions. First, the principle of justice can only apply in the way McCarthy uses it if there is no morally relevant difference between pregnant women and non-pregnant people; but whether there is such a difference is part of what is at issue. Indeed, as we have seen McCarthy assumes that a pregnant woman is not, strictly speaking, on an equal footing with others when it comes decisions about whether or not to continue the pregnancy; on the contrary, the pregnant woman has a special moral claim to make such decisions. It certainly does not follow that the principle of justice does not apply to pregnant women, but an opponent of abortion can argue that it cannot be assumed that any difference in how pregnant women are treated is thereby unjust.

It is true that McCarthy?s opponent faces difficulties when it comes to the specific burdens she mentions. For instance, it is difficult to think of many other scenarios where a patient may be legally compelled to risk serious damage to her health for the benefit of anyone but herself. An opponent of abortion will find it hard to defend the justice or fairness of these specific kinds of case. But proponents of abortion will often face challenging cases of their own. If the right to choose is based on a woman?s autonomy, it is hard to see why she should not have the right to choose to have an abortion for any reason at all ? and many people, by no means limited to opponents of abortion in all circumstances, will find it troubling that a woman could in principle chose to have an abortion because of the sex of the foetus, or because the foetus is diagnosed as having a condition such as Down?s Syndrome. The point is primarily not to do with how many women would actually choose an abortion on these grounds, but rather with the view that an abortion chosen on these grounds is itself an unjust act, or at any rate one which does not show respect for the life of the foetus. The possibility of these cases, even in principle, is arguably the greatest challenge facing a defence of abortion on the grounds of autonomy and justice.

 

[1] Dr. McCarthy?s presentation to the Citizen?s Assembly is available at https://www.citizensassembly.ie/en/Meetings/Third-Meeting-of-the-Citizens-Ass... . Full disclosure: I know Dr. McCarthy from when we were both studying at UCC.

[2] McCarthy does note that ?Autonomously chosen actions can justifiably be limited if it can be demonstrated that they cause harm to others? (fn. 4). But the above examples show that in many jurisdictions autonomy is limited on other grounds, and it is not obvious that none of these grounds provide a legitimate basis for limiting autonomous actions.

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