There has been some discussion of late regarding the time limits (or, rather, lack thereof) in the proposed Protection of Life During Pregnancy Bill (2013). Many in the anti-choice lobby feel that because there is no time limit in which abortion can take place in the Bill, women will have abortions right up to the time of birth:

It proposes to legalise the direct and intentional killing of unborn children in Ireland for the first time. There will be no term limits – this is abortion through all nine months of pregnancy.

To me, while I understand the underlying concern, this is merely conjecture.

Aside from becoming life-threateningly physically ill later on in the pregnancy, it’s probably much more likely that a woman will become suicidal because she’s pregnant earlier on, and seek an abortion then (of course, I’m not saying that a woman will definitely not become suicidal later on in a pregnancy, but that’s a different discussion outside of the point I want to make here).

The claim made by anti-choicers that the Bill will allow women to have abortions so late is irrelevant, whether or not it’s “legal” in the Bill itself.

Why do I think this? Well, the 8th Amendment to the Constitution in 1983 put the right to life of the unborn on par with that of the mother, and guaranteed that right be vindicated. In 1992, the Supreme Court ruled that, when the mother’s life is in danger as a result of the pregnancy, that right to life cannot be guaranteed. And this, I feel, is the crux of the matter.

Guaranteeing or not guaranteeing that a right to life for the unborn be vindicated all depends on the stage of pregnancy, and when that pregnancy is ended. One simply cannot guarantee the right to life be upheld if the pregnancy is ended by an abortion when the foetus is unviable for independent life outside the womb. But the Supreme Court ruling doesn’t mean that all pregnancies that threaten the life of the mother must be aborted. In the case of a late-term pregnancy where the foetus is viable and can survive outside the womb, the obvious “win-win” solution to protect the lives of both is to induce an early delivery – not a late-term abortion as the anti-choice side claim women will do.

In fact, to abort a viable foetus so late in a pregnancy (i.e. just before birth) would be unconstitutional, as the 8th Amendment itself provides that the right to life of the foetus be vindicated. Aborting a viable foetus does not vindicate this right, but early inducement of labour and good medical care of the baby after birth does.

Some may argue that the proposed legislation would take priority over Article 40.3.3. However, I argue the contrary, that this is not possible.

Article 15.4 of the Constitution places constitutional law in a superior position to that of statutory law:

15.4.1: The Oireachtas shall not enact any law which is in any respect repugnant to this Constitution or any provision thereof.

15.4.2: Every law enacted by the Oireachtas which is in any respect repugnant to this Constitution or to any provision thereof, shall, but to the extent only of such repugnancy, be invalid.

If proposed legislation is in conflict with (“repugnant to”) the Constitution, a referendum must take place to alter the Article in question so that legislation can pass. So, when the Bill is eventually written (and remember, it’s not actually written yet), it will be done so in such a way that it says – implicitly or explicitly – that a viable foetus will have its Constitutional right to life vindicated, as per Article 40.3.3, thereby satisfying Article 15.4. The alternative is to hold a referendum and possibly repeal the 8th Amendment (which is Article 40.3.3).

That’s why I think that the anti-choice statement that abortions will take place up to the time of birth is pointless, irrelevant, and something of a strawman.

I should say that I’m aware there are probably plenty of caveats in my reasoning above:  for example, I don’t address late diagnosis of a fatal foetal abnormality. A woman’s reasons for seeking an abortion are hers alone, and there is a host of situations outside the scope of this post for which a woman might obtain one.

I do hope, however, that I’ve made reasonable points in a general sense to counter the unfounded claim by some in the anti-choice movement that a Bill reflecting the X Case judgement will open “floodgates” to late-term abortions of viable pregnancies.