Posted on | March 22, 2013 by Grégor Puppinck, Ph.D |
Here is a post published on the Blog “Constitution Project” of the University College Cork (UCC), an inter-disciplinary research group looking at issues surrounding constitutional law, history, governance and politics.
It may also be of interest for the readers of Turtle Bay.
Abortion in France gives Ireland the benefit of hindsightPosted on March 22, 2013
We are delighted to welcome this guest post on the issue of abortion from Dr Bénédicte Sage-Fuller, Faculty of Law, University College Cork and Dr Grégor Puppinck, European Centre for Law and Justice, Strasbourg, France.
Anyone who thinks that opening the door to restricted abortion can be kept to narrow and well intended cases should take a look at the French example. Legalised in 1975, abortion was at the time all about the dignity of women when facing a distressing situation. It was meant to be good for them and for society. Women needed to change the male-dominated country that France had been for centuries. After all, the right to vote was only fully recognised to women in 1944. France had never – and still has not ever –had a woman as head of State. Abortion was meant to help recognising women as full citizens. It was part of their full emancipation.
This is still very much the attitude. The belief that abortion is necessary for women is even legally defended. It is no longer a crime to incite someone to have an abortion, but it is a criminal act to protest or even talk publicly against abortion. On Monday 21st January 2013, a pro-life activist was before the courts. His protest was entirely non-violent, and yet he was charged with “having exercised psychological and moral pressure on women and trying to dissuade them from having an abortion”. He prayed outside an abortion hospital, and later walked inside and gave baby-size woollen boots to women considering having an abortion. He faces heavy fines and imprisonment. On the other hand, anyone who puts psychological or moral pressure on a young teenager or woman to have an abortion will not be prosecuted.
Of course in 1975 the legislation included strong safeguards, in order to care for and protect women making this choice. But 38 years on, the procedure is entirely liberalised. The safeguards have been reduced to virtually nothing. The law was changed to allow abortion up to 12 weeks, rather than the initial 10 weeks. The right for doctors and nurses to refuse to carry out an abortion is restricted. Public and subsidised private hospitals are not allowed to refuse to provide the procedure. Young underage girls no longer need to tell their parents, let alone obtain their consent. Compulsory pre-abortion counseling was made optional for adult women, with the result that by 2009 the vast majority of private abortion clinics and half of the public hospitals do not offer the service to women.
There is widespread recourse to medical rather than surgical abortion, where women take abortive pills in front of a nurse or doctor, and then go home. Having expulsed their foetuses alone in their bathroom, they must bring them back to the clinics so that a nurse can verify that the abortion is complete. No psychological support is offered during or after this harrowing time, which takes between 3 to 5 days. Women are alone and without any psychological support and, in the case of teenage girls, isolated even from their parents.
The number of abortions has risen to about 600 per day. There were 220,000 performed in 2012. One in four pregnancies is terminated. The biggest increase has been among underage teenage girls (+25% between 2002 and 2006). Yet, the French government makes no apologies. On the contrary, it decided in October 2012 to fully refund the procedure, with taxpayers’ money, deploring that French women do not have equal access to abortion services.
The 1975 law recognised the protection of human life for all, and then went on to make an exception for foetuses under ten weeks. This was the price to pay: that the law clearly admits that abortion is an exception to the right to life of all human beings. If the embryo or foetus was legally recognised as a person by virtue of its very existence, it would, as an inescapable logical consequence, enjoy all of the rights that all other human persons in France enjoy, including the right to life. To the contrary, the legal denial of the personality of the embryo or foetus carries with it its own logical consequences, including the inevitable liberalisation of abortion laws, and the increasing absurdity of the law.
This absurdity can be seen in the following examples. In the infamous wrongful life decision of Perruche in 2001, the highest court in France held that a baby born with serious abnormalities was entitled to sue his mother’s doctor and to receive compensation for the damage of being alive, because the doctor failed to detect the condition in the womb. In other words, a child was allowed to sue for the “wrongful prejudice” of having been born. A law was passed in 2002 to reverse this decision in respect of the person who is born, but leaves the possibility to parents to sue for their personal damage of not having been told their child would suffer a disability. It is considered that they “missed the chance” to make an informed decision about aborting their baby. On the other hand, the same court ruled that somebody cannot be criminally prosecuted for causing the death of a viable unborn child in a car accident as a consequence of their reckless behaviour, unless the child lived for some time outside the womb after the accident. Failing to provide medical information to parents that would convince them to terminate the life their child is punished by the law, but recklessly causing the death of a viable unborn child is not. The legal system and the courts decide subjectively who has the right to life and who does not. This is a direct consequence of admitting an exception to the right to life for all in the 1975 abortion law.
Once abortion is accepted in law, no matter how narrow or well intended the reasons are, there is no going back. It becomes part of society. It affects deeply every woman, man and child, whether they have been directly involved in an abortion or not. Irish people, TDs, Senators and Ministers need to take a good look at the French example before they decide that abortion is really what they want for their country. Unlike French people 38 years ago, they have the benefit of the experience of other countries, and they can avoid making the same mistake.