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This was not an abortion case, but the courts had to perform a circus balancing act

Why? Because of the 8th Amendment.

Image: Shutterstock/Rob Wilson

AFTER THE HIGH Court delivered its ruling yesterday in the case of the clinically dead pregnant woman being kept alive through extraordinary (possibly experimental treatment), there was a lot of commentary about how common sense prevailed.

But there was nothing common about this case. And there was nothing common about the evidence the three-judge court used to arrive at its judgement.

It wasn’t common sense prevailing. It was medical sense used. It was medical best practice and doctors’ judgement that prevailed.

So the question being asked now is why the courts were involved in the first place?

Part of that answer – no matter what angle you look at this from – is the 8th Amendment.

Not an abortion case

The court went to great pains to stress that this was not an abortion case. Indeed, it was not. The woman involved never indicated that she wanted to terminate her pregnancy. Neither did the father of the unborn. Or the father of the deceased.

The doctors did not ask for the court to declare a termination lawful (as they have in other high profile cases, such as X).

The woman’s medical team wanted to discontinue life support, a decision that they saw was in the best interests of their patients – both the woman and the unborn.

However, because of the 8th Amendment (inserted into the Constitution in 1983 to enshrine the rights of the unborn), doctors felt “constrained by a lack of clarity in the legal position”.

The HSE’s legal counsel, Gerard Duncan, told the court on Christmas Eve that the healthcare system should always have access to the court but that it should be the “exception rather than the norm”. 

Doctors need to live in a situation where they can trust their own judgement, he said, especially when there is consensus among their peers and when their views “coincide with what the family wants”.

The medical know-how offered in this case by seven different doctors gave a clear-cut picture of the horrifying situation the young woman had been left in — the young woman’s children, aware their mother is very ill, believe she is being looked after by the nurses “until the angels appear”.

Her daughter became “very distressed by her [mother's] appearance” when she last saw her. Reading the evidence given in court about the number of tubes in her body and the infections that had become embedded in her head and other parts of her body were enough to upset, nevermind to see a loved one in that state. We won’t repeat some of the medical language used in court here, but it was enough for the court to declare it “devastating”.

Her family did not want this. The doctors did not think the somatic support being provided was appropriate or justified. But here we all were in court.

The background

Back in 1983, when Article 40.3.3 was put to a referendum, the Attorney General of the day, Peter Sutherland, warned that the new amendment would lead to the courts having to interpret the law in various cases because the rights of the mother and the unborn “by their nature cannot be absolute and may have to be balanced”.

Sutherland went as far as to call the wording of the article “ambiguous and unsatisfactory”. In his advice to Taoiseach Garret Fitzgerald, he wrote:

It will lead inevitably to confusion and uncertainty, not merely amongst the medical profession, to whom it has of course particular relevance, but also amongst lawyers and more specifically the judges who will have to interpret it.

Circus balancing act

It is exactly this balancing act of interpretation that the court was asked to perform this week – in front of a watching public and press.

Arguments were made by counsel for the unborn and the mother that the rights of the young woman were no longer engaged because she had been declared dead on 3 December.

However, the court said it was “unimpressed” with such suggestion that “considerations of the dignity of the mother are not engaged once she has passed away”.

Indeed, part of Justice Kearns’ balancing act was to ensure the court did not discount or disregard “the mother’s right to retain in death her dignity… with due regard to the grief and sorrow of her loved ones and their wishes”.

“Such an approach has been the hallmark of civilised societies from the dawn of time,” he continued.

It is a deeply ingrained part of our humanity and may be seen as necessary both for those who have died and also for the sake of those who remain living and who must go on.

All parties to the case were satisfied with the court’s final judgement, with counsel for the unborn stating that his client’s rights were sufficiently considered by the three judges. He confirmed he would not be appealing.

In a statement yesterday afternoon, the Pro Life Campaign added their sympathies to those being offered to the family. But they also expressed a certain contentment that the case had been brought to the High Court.

“While it is very difficult for the families concerned that cases like this sometimes end up in court, the fact is that it is a sign of a healthy democracy that life and death issues are taken seriously and appropriately determined.

In countries where there is no protection for the unborn, disagreements sometimes emerge that have to be adjudicated on. There is nothing unique to Ireland about this case as some would try to suggest.

Of great public importance

Nobody expected a case like this to appear this Christmas. Former Attorney General Peter Sutherland predicted problems with the 8th Amendment. But not this particular issue.

Despite the court stating the case raised issues of great public importance – it awarded costs to both sides as result – there will be little in it that can inform doctors the next time they feel they cannot legally stand over their medical decisions.

This case turned on its “particular facts”, the court emphasised. If the gestation was slightly more advanced, would there have been a different outcome? Is there an exact cut-off point in viability?

The court will not have the answer to this until another case comes before it. Just as doctors won’t until they have all the particulars about a patient.

And that’s the thing. We have to trust that doctors are more than capable of ensuring they are balancing the best interests of both their patients – mother and her unborn.

If they are unsure, yes, the courts should always be available to them. But for when they are beyond doubt; for when they feel like they are moving into the “grotesque” and “experimental”, our Constitution should afford them the respect that their decades of training and experience deserves.

Everybody is in agreement, it seems, that this wasn’t an abortion case. Nobody wanted to terminate the life of an unborn child or to interfere with a pregnancy in any way.

Doctors, judges, the HSE and the family wanted to give dignity back to the young mother who had suffered a catastrophic death at the start of this month.

The foreseen failings of a law – brought in with a single aim to ensure abortion could never be permitted in the Republic – confused these same doctors as to what their responsibilities were.

They were castrated by the 8th Amendment. We all understand the 8th Amendment to be Ireland’s abortion law. And, thus, this became a case about abortion.

As Ireland returns once more to a debate about the 8th, another family grieves a daughter pulled into the public spotlight because she presented an ambiguous case. She became an Article 40.3.3 dilemma.

Since the court has performed its final balancing act, at least they they can now let her rest in peace.

Now, the angels can appear.

More: Doctors told they can withdraw life support for clinically dead pregnant woman

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