A Critical Look at Some Prominent Arguments for the Yes and No Sides

We are taking a critical look at the arguments used by campaigns on both sides of the issue.  The idea is not so much to find fault with these arguments as to try to work out what is really going on with them. We have looked at the 'Love Both' campaign, the 'Together for Yes' campaign and the 'Abortion Rights Campaign'. We will add a consdieration of the Protect the 8th' campaign shortly.  

(Our references to women and girls should be understood to apply to all people who may become pregnant.)

Section A: ‘No’ to repealing the Eighth

i.e. ‘No’ to allowing abortion in Ireland beyond what is authorised by the 2013 legislation.

We went to the (opens in a new window)‘Love Both’ campaign website, and especially to a page entitled “8 Reasons to Vote no”.

Reason 1.   “A baby’s heartbeat starts at 22 days"    Click to show more

Reason 2.   “The Government plans to replace the 8th Amendment with abortion on demand.”     Click to show more

Reason 3.  “The 8th Amendment saves lives”

• Saving lives is not the same thing as enabling potential lives to happen; someone’s life can only be saved if there was a person with a life that was at risk of being lost.  So this claim begs one of the questions at the heart of the issue. It is the question of whether early-stage foetuses and embryos have lives as opposed to merely potential lives that are lost when the pregnancy is terminated.
• A mother with a lovely child in a video clip appeals to the fact that he wouldn’t have been born had it not been for the Eighth Amendment.  This is an example of a very familiar almost paradoxical attitude that parents may have.  If you intended to stop having children after a certain time but then by accident have one more, you may love that child and be really glad you failed with your contraceptive (or termination) efforts, while simultaneously knowing that at the time the better choice was not to go ahead and have the child.  Parents very rarely regret the children they end up having, but if this argument worked it would mean we should have as many children as we are physically and emotionally capable of having.
• “We all know someone protected by the 8th Amendment. There are so many stories of mothers and parents who contemplated abortion, but the unavailability of abortion in Ireland enabled them to change their minds.” The idea here is that the 8th Amendment protects mothers from making choices that they are later glad they weren’t allowed to make easily.  It may be worth placing this thought alongside the testimony of people living in other jurisdictions who are grateful for having been able to make the decision to have a termination in their own community.  And of course  people in these other jurisdictions have the opportunity to change their minds too, and many might be grateful that they did.  No numbers are provided for how many women have felt protected by the ban compared with how many women have felt restricted by it.
• “For every four babies born in Britain, one is aborted.” In Britain about one in five pregnancies ends with a termination.  Again the use of the word ‘babies’ rather than ‘foetuses’ or ‘embryos’ should be noted; it is clearly contentious. We also should take such numbers with a grain of salt, because the amount of pregnancies that occur is extremely difficult to measure. This is partly because a surprisingly high proportion of pregnancies end in a natural miscarriage by the 12^th week of gestation, including very many cases where the woman or girl in question never realises that she is pregnant. In addition to the general worry about these numbers, the proportion of Irish pregnancies that end with a termination is very difficult to assess, since not all terminations by Irish girls and women get recorded.  If you buy the pills on an unofficial website you won’t end up in the statistics. Also the assumption that Ireland will follow Britain here does not acknowledge some deep cultural differences between the two countries.

Reason 4.   “In Britain, 90% of babies diagnosed with Down Syndrome are aborted.”

• A large worry with this reason is that it is out of step with what the relevant organisation, Down Syndrome Ireland, are saying. They make the complaint that Love Both and others are opportunistically using people with Down syndrome to make a point, without sensitivity to what those people themselves want. You can read (opens in a new window)their statement here, including the complaint that "[t]his is very disrespectful to both children and adults with Down syndrome and their families. It is also causing a lot of stress to parents. People with Down syndrome should not be used as an argument for either side of this debate." 
• The numbers are misleading here.  Most potential parents in Britain who would choose to go through with a pregnancy despite the diagnosis of probable Down syndrome do not undertake the tests that are offered for this diagnosis, and very many parents (about a third) go down this route.  Invasive tests carry a small risk of miscarriage and genetic blood tests can be expensive, so these would generally not be undertaken unless the prospective parents were quite sure that they would not want to continue with the pregnancy with a positive diagnosis.  So although 90% of foetuses diagnosed with Down syndrome are aborted it is not true that 90% of foetuses with Down syndrome are aborted. It is perhaps nearer 60%.
• However, it may be true that if the Eighth is repealed more prospective parents in Ireland would seek these tests, more foetuses with diagnosed Down syndrome and some other disabilities that can be detected in the womb would be aborted and fewer children with disabilities would be born.
• In this section of the website there is quite a bit of cross-cutting from talking about children with Down syndrome – for example being discriminated against - and talking about foetuses where there is a genetic diagnosis.  The headline talks about babies being aborted and the mother in the clip talks about children being aborted. The language is very contentious here.  Talk of aborting children (or babies) may give the misleading impression that the 12-week old foetus is already a fully formed baby.
• But there is a very strong sense underlying this sort of argument that terminating a pregnancy, which is stopping someone being born, is an act against a person who would have been born.  Even though this seems illogical (no such person ever gets born; so no act can be perpetrated against them) it is hard to shake off this sense, and it may motivate quite a bit of the emotional response against abortion.
• There is also a sense that terminating a pregnancy because the person who would have been born would have been disabled is itself attacking the right to life of disabled people - as if eliminating disability amounts to eliminating people with disabillties.  
• It is not clear that children and adults with Down syndrome are respected less and treated less well in countries where prospective parents may terminate pregnancies following the diagnosis of Down syndrome.

Reason 5.   “Abortion can cause psychological harm.”

• The Love Both website cites a 2008 study by Fergusson et al. The abstract of that study concludes: “The evidence is consistent with the view that abortion may be associated with a small increase in risk of mental disorders.”  Certainly there is no evidence provided that abortions cause more psychological harm than they prevent.
• A lot of things can cause psychological harm; that does not by itself mean that they should be illegal.  If minimisation of psychological harm is a motivation here, there would need to be some analysis of the relative psychological effects of a ban versus no ban.
• The ‘Love Both’ campaign cites an individual response to abortion: “I was 19 when I had an abortion. I was never told it would lead to deep depression and suicidal thoughts.” The idea here seems to be that the law should protect individuals from psychological harm by not allowing them to make decisions that they might bitterly regret later.  It is worth thinking about whether this is a proper way to employ the law and how far one would be willing to extend this idea. For example, some people regret their marriages.

Reason 6.   “A better vision for Ireland”

• “The State should work towards: (i) better funding for pregnancy counselling services throughout Ireland; (ii) rapid prioritising of housing and medical care for homeless pregnant women; (iii) better services for families of disabled children; (iv) immediate counselling and hospice support for parents whose children have life-limiting conditions; (v) improved maternity and paternity benefit in line with international best practice.”  All these goals are compatible with repealing the 8th.
• “Legalising abortion as the solution to unplanned pregnancy removes the incentive for positive change.”  So the real argument here appears to be that the political consequence of repealing the 8th would be that the State would continue to fail to offer proper services for disadvantaged parents.  As a piece of political analysis this is questionable. If the State has failed to provide these services hitherto it is not clear why no change to the constitution should result in a change to this.  

Reason 7.   “Repeal of the 8th would hand all the power to politicians to decide our abortion laws”

• The politicians, being the lawful representatives of the Irish people, have the power to decide all laws binding Irish citizens and residents – that’s how democracy here works. If the 8th is repealed then the lawmakers in future parliaments may be elected on platforms of how they plan to change these laws.  
• This argument and the previous one appeal to a strong mistrust of politicians.  The argument is not really clear, but possibly what is being expressed is the sense that some powerful liberal elite is out of touch with real people’s lives and should be taken down.
• “The government’s plan to introduce abortion on demand will place further strain on currently overstretched health services.” Introducing any new medical procedures, including cancer treatments, for example, places further strain on health services.  Abortion is not a particularly expensive procedure, and the issue of costing, financing and/or rationing health services is separate from the issue at hand. The use of the term “on demand” in this case is also misleading, as the proposed legislation only allows terminations where there is no medical reason up to 12 weeks.

Reason 7.   “Ireland is a world leader in care for pregnant women”

• “Maternal death rate of 6.5 per 100,000 is extremely low compared with a rate of 8.8 per 100,000 in the UK and 26.7 per 100,000 in the US.” This is not presented as an argument in favour of repealing the 8th, as if doing so will lead to more maternal deaths.  It is presented as an argument against an argument for repealing it.  It is sometimes argued on the other side that not having the possibility of abortion on demand may lead to maternal deaths.  And these statistics are intended to quash that argument.
• “Ireland’s abortion laws were clarified in 2013. It is lawful to terminate a pregnancy in Ireland in order to protect a mother’s life.” This is a response to people who think that the 8th Amendment was responsible for the death of Savita Halappanavar.  It is not in itself an argument against repealing the 8th Amendment.

Section B: ‘Yes’ to repealing the Eighth Amendment

i.e. ‘yes’ to allowing for widespread legal access to the termination of pregnancy in Ireland

We went to the ‘Together for Yes’ campaign website and the website of ‘Abortion Rights Campaign’.  The ‘Together for Yes’ campaign describes seven aspects of the situation as it currently stands for pregnant women and girls in Ireland, under the heading: “(opens in a new window)Your questions on pregnancy and abortion”.

The website does not present these considerations in the form of arguments to vote yes, but it is possible to piece together the following argument.  The situation as it stands causes suffering to some pregnant women and girls which they would not suffer if the 8th Amendment was repealed, and compassion for this suffering should make us choose to repeal the 8th.

The considerations that are listed concerning the situation as it stands are the following:

1. Women and girls who are pregnant from rape or incest do not have the opportunity to terminate their pregnancy in Ireland.

2. Parents who are told that their baby will die at or shortly after birth (fatal foetal condition) have to carry the pregnancy to term if they continue to have their medical treatment in Ireland.

3. If a woman develops a medical problem during her pregnancy she does not have the opportunity to terminate it in Ireland.

4. If women in Ireland do have abortions (apart from the 25 per year who can have them in Ireland because their lives are at risk) they must either go abroad, or have them illegally and not under proper medical supervision in Ireland.

5. If women and girls who have unwanted pregnancies in Ireland lack the funds, the documentation or the robustness of health to travel abroad to have an abortion then they have no way to have medical care to terminate their pregnancies; they are unjustly disadvantaged relative to women who have the funds, documentation and health.

6. Doctors are not always obliged to put the wellbeing of their female patients first as they must also take into account the wellbeing of the foetus or embryo.

7. Pregnant women cannot always choose the medical examinations and procedures they are to receive.

Most of these considerations are not contested, though the last two should be qualified.  Doctors are now obliged to put the risk to the life of their female patient first, but if they are weighing up other aspects of the wellbeing of their female patient against the life of the embryo or foetus, the wellbeing of their female patient is not supposed to come first.

The argument is that if the current system allows this sort of suffering at all then a compassionate society should do something about it.  But stated in this way it is not clear why someone who thought that compassion should also be applied to embryos and foetuses would find this argument decisive.  They might feel sympathy for the pregnant rape victim and equally for the baby to be and not be certain that the life and wishes of the pregnant rape victim outweighs any future life and wishes of the baby to be.

The Abortion Rights Campaign has a page entitled “(opens in a new window)8 Reasons to Repeal the 8th Amendment”.   

Reason 1.   “The 8th Amendment equates the life of a woman to that of an embryo.”

• This is a plausible reading of the 8th Amendment, and it represents a morally controversial point of view. But, since the 2013 legislation does allow medical abortions when the pregnant person’s life is at risk, it seems that the current system does not exactly equate the right to life of the embryo or foetus with the right of the pregnant person to live at all.  It is her right to continue with a good life or a happy life or a life she chooses that is given no extra weight than the right of the embryo or foetus to continue to live.
• Whether this counts as a reason to repeal the 8th depends on whether this ‘equation’ is wrong.  

Reason 2.  “The vast majority of women who want and need abortions are unable to access them in Ireland under interpretations of this law.”

• Certainly, one cannot access abortions legally and under medical supervision in Ireland except when one’s life is genuinely at risk.  People who are thinking of voting ‘No’ are aware of this; the question is whether it is right or wrong to have such a system. (Some of the further reasons offered below go some way to addressing this.)

Reason 3.  “Women have already died in Ireland having been denied life-saving abortion procedures.”

• The Protection of Life During Pregnancy Act 2013 section 7 already allows abortions if they are necessary to save the life of the mother. It might be the case that this provision is not being applied and so women are dying. But that is a matter of applying the law properly, not necessarily of changing the law.  It may also be the case that women died as a result of being denied these procedures before 2013. But on its own this statement is incomplete without further data.
• See: (opens in a new window)http://www.irishstatutebook.ie/eli/2013/act/35/enacted/en/print
• More generally, the mere fact of people dying is not by itself a sufficient reason for permitting a treatment. If the embryo or foetus does indeed have the same moral right to continue to live as the pregnant woman then this is just an unfortunate fact, but not a reason to change the constitution. Many people find it intuitively obvious that the life of  fully formed human being with plans, hopes, and networks of dependencies should be prioritised over that of a foetus. But that assumption should be made clear.

Reason 4.  “At least 150,000 women have travelled to other countries to procure abortions since 1980.”

• On its own, this is not a reason to legalise abortion.  The Abortion Rights Campaign needs a separate argument about what is wrong with having to travel abroad to procure an abortion.  For instance, that because of the law women and girls face the undue psychological and financial pressure to travel for a medical procedure, during a time of crisis in their lives, and this is morally objectionable. The next reason provides another argument.

Reason 5.  “Thousands of women are unable to travel for abortion services due to family, legal status, financial situation, or health.”

• The fact that people cannot get what they want is not in itself a reason to make it easier for them to get it. Some opponents to repealing the 8th will think it is a good thing that thousands of women are unable to travel for abortion services in Britain.  But presumably the argument here also concerns social justice. – that it is not fair that disadvantaged women have to put up with the consequences of unwanted pregnancy while more advantaged women can do something about it.

Reason 6.  “People who procure abortion within the country risk a 14 year jail term. Doctors can be jailed too.”

• No one has actually suffered such a sentence in recent years. Nonetheless, it has been widely acknowledged (e.g. in the Joint Oireachtas Committee Report on the Eighth Amendment) that this law has had a 'chilling effect' on Irish healthcare professionals and the Irish population at large. For instance, healthcare providers are seen to have to some extent avoided addressing issues about the termination of pregnancy in policy and in practice, patients are more likely to give false information to their healthcare providers for fear of sanction, and so on.
• If an act is illegal, then there should be a penalty associated with intentionally performing that act, and that penalty is determined by the appropriate sentencing body, subject to the will of the Oireachtas.
• This reason, like the previous one, may be directed against someone who says: “What’s the problem? Pregnant women and girls in Ireland can always get an abortion one way or another.”  The idea might be that if you are happy with the fact that pregnant women and girls in Ireland can get an abortion one way or another then you should not support its criminalisation in Ireland.

Reason 7.  “The majority of people in Ireland support much wider access to abortion than is permitted under the 8th Amendment.”

• That is what the referendum is there to determine. Informal opinion polls are not a reliable way to construct policy on important matters.

Reason 8.  “The life and health of a pregnant woman has a much greater value than our constitution places on it.”

• This is what needs to be argued.  Some people will agree with this statement, some people will not.  The ‘No’ side claim that the life and health of pregnant women can be given great value while also valuing the life of the embryo or foetus.