To be or not to be

Ambarish Satwik | Updated on July 27, 2018

Body politic: All arguments on the permissibility of abortion have always centred on the question of foetal personhood, and the duty of the woman to gestate   -  ISTOCK.COM

Should the right to life of the unborn child be decided by a popular vote?

“In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions, both of men and States must be referred,

We, the people of Éire…”

This is how the preamble of the Constitution of the Republic of Ireland, perhaps the most ‘foetalist’ one in the world, begins. In its Eighth Amendment, in 1983, it gave the occupant of the uterus, even as a clump of inchoate organic matter, equal right to life as the mother. It was written as a secular law. Nowhere in its text was there a sign that it had earned its keep from theology.

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate that right.

Since 1861, abortion in Ireland has been a criminal offence, punishable with “penal servitude for life”. What changed in the Eighth Amendment with the phrase “as far as practicable” was that the only concession allowed for abortion was if there was a real and substantial risk to the life (as distinct from the health) of the mother. It was deemed not practicable to abort in cases of rape, incest or even fatal foetal abnormality. Earlier, in 1979, as the waves of liberalization (of abortion) were washing up on the shores of Europe, in the slow wake of the US Supreme Court’s Roe vs Wade decision, the Catholic nun and missionary Anjezë Bojaxhiu aka Mother Teresa, in her Nobel Peace Prize acceptance speech, had declared that the greatest threat to world peace was abortion.

The severity and exactness of the clause “real and substantial risk to the life of the mother” was tested in the case of Savita Halappanavar in Galway, Ireland, in 2012. Halappanavar, 17 weeks pregnant, had presented herself to the University hospital with abdominal and back pain and her gestational sac protruding into her vagina, a condition known as inevitable pregnancy loss. When her water broke a day later, and there was the incipient suspicion of an infection of foetal membranes, the Halapannavars asked about the possibility of a wilful termination of pregnancy. They were informed by the attending obstetrician that under Irish law, their hands were tied as long as the foetal heart continued to beat. If the risk to Halapannavar was to increase, they were told, a termination would be possible, but that would be based on an actual and not theoretical risk of infection. The clinical management plan was to “await events” and monitor the foetal heart. After two days of monitoring, they diagnosed an infection, but the clinical team still wavered in their decision to abort. On day three, unexpectedly, she went into an accelerated tailspin: in a matter of hours her blood pressure crashed, acute respiratory distress and lactic acidosis set in and she manifested the full florid spectrum of septic shock. As she was being prepped for an abortion, she suffered a spontaneous, unbidden expulsion of the foetus and placenta. That night she was intubated and put on ventilatory support. Three days later, she died.

On 25 May 2018, a bill to repeal the Eighth Amendment was put to a referendum in Ireland. 3.2 million voters cast their ballots; the abortion ban was overturned by 66.4 per cent to 33.6 per cent. Once signed into law by the President, abortions up to 12 weeks will be permitted without specific indications, and up to 24 weeks if there’s a risk to the health of the mother or for fatal foetal conditions.

A yes vote in the Irish referendum was a vote for the taking away of the equal right to life of the foetus. To make the meaning of this explicit, it is necessary to ask the following: Should the life of the unborn child, a prospective member of society, be a ballot question? What is the right procedure for massively altering a nation’s character? Is not the point of a constitution to prevent the tyranny of the majority?

All arguments on the permissibility of abortion have always centred on the question of foetal personhood, and the duty of the woman to gestate, which makes it a matter of both ethics and law; what people have good reason to do versus what they should be compelled to do. The feminist position, that women have a fundamental right to bodily integrity, including the right to terminate an unwanted pregnancy, doesn’t evaluate the quality of anyone’s reasons to abort. It doesn’t consider the rape victim more ethically justified in having an abortion than someone who’s just too busy to have children. For this, it has to maintain that rights of the unborn child do not exist, and if they do, are subordinate to those of the woman. It’s clear that there is no room within the feminist position for the distinction the law makes, for instance, in India. If it’s legitimate to abort at 20 weeks for Down’s Syndrome then so should it be on any other grounds. But then, who’s to be the arbiter of this? A majority vote? Should the wisdom of the crowds be allowed to determine what the morally right position is?

This wasn’t the first time the Irish people were asked to vote on the matter. The Eighth Amendment wasn’t put in by a bunch of Magi, but by a referendum, to make sure that abortion wouldn’t be sneaked in by the judiciary (as in Roe vs Wade). It was approved by a 66.9 per cent vote in 1983. In 1991, a 14-year-old girl, pregnant as a consequence of rape threatened to commit suicide if she wasn’t allowed to abort. The republic of Ireland, with all its might, stopped her from travelling to the UK for an abortion on the grounds that it was unconstitutional. The state was committed to force a girl to bear the child of her rapist. In 1992, this substantive issue of whether the risk of suicide was sufficient reason to legally allow an abortion was put before the people of Ireland in a referendum. It they would’ve allowed it, it would have been the twelfth constitutional amendment. It was rejected by a 65 per cent vote.

In 2010, a married couple from Minneapolis set up a website to let the public vote on whether or not they should have an abortion. “So that the voters could make a difference in the real world.” The mother feared the pressure of juggling motherhood and a career could cause her to have a nervous breakdown. The father was just unsure. They uploaded regular ultrasound images of Wiggles, the foetus. The votes were to be counted until two days before the twenty-week legal cut off. The whole thing was compared to a Roman colosseum, where the mob picked who lived and died. Seventy-three per cent of the 2,78,084 votes were against the abortion. After voting ended, the couple declared that they weren’t necessarily going to abide by the vote.

In Ireland, they would have to.

Ambarish Satwik


Ambarish Satwik is a Delhi-based vascular surgeon and writer; Email:

Published on July 27, 2018

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