This guest post is contributed by Donnchadh O’Conaill, a post-doctorate researcher at the Department of Philosophy in the University of Fribourg, Switzerland. It is written and contributed in a personal capacity.
This week the Dail meets to discuss the Oireachtas Committee ‘s recommendation that abortion be allowed on request up to 12 weeks into a pregnancy. This is likely, though by no means certain, to form the basis of a proposal to remove the Eighth Amendment from the Constitution. The committee’s recommendation was a politically momentous decision, but one which may have even greater significance in shaping the direction of the national debate to come.
Until recently much of the narrative around repealing the Eighth Amendment had focused on certain types of cases and on specific grounds on which abortion might be justified. These cases included fatal foetal abnormalities and pregnancies which occur as a result of rape or incest.[i] Stories describing these cases are undeniably powerful. They are by no means the only kinds of case which have been discussed, but they have been central to the growing movement for repeal.
The Oireachtas Committee’s recommendations are likely to shift the focus of the debate away from specific kinds of case and towards considering access to abortion regardless of the woman’s reasons (within a time limit). This change presents certain opportunities for the repeal side, but also for their opponents. For the repeal side, it allows for a much more workable law, should a referendum be held and carried; in contrast, it would be extremely difficult to craft a law allowing abortion on the specific grounds of rape or incest. A law based on time limits would bring Irish law into line with most other regimes in the EU, which tend to allow abortion on request up to a certain time limit, with exceptions on limited grounds after that point. And it may allow repeal campaigners to argue that the chances of further liberalisation would be slim, considering how little change there has been in the abortion regimes of most EU countries with comparable laws.
This proposal also offers opportunities for opponents of repeal. Most importantly, the recommendations would amount to abortion on demand, albeit within a strict time limit (one may not want to use this phrase, but allowing abortion regardless of the specific reasons the woman has for requesting it is what it means). A large section of the Irish public would have serious reservations about this prospect.
More generally, allowing abortion within a limited time frame in effect acknowledges that the moral status of the foetus changes as it develops. The foetus undergoes enormous physiological changes between conception and birth. One line of thinking is that these changes have moral significance – bluntly put, the life of a zygote is less important than that of a foetus which is much closer to term. Implicit in this view is a certain picture of what the moral value of a foetus consists in. And this is where the really deep philosophical difference between pro-life and pro-choice views is found.
To make the point clearer, it helps to distinguish three different kinds of question one can ask about abortion: we can term these the moral, legal and meta-ethical questions, respectively. The moral question is whether abortion is ever permissable, morally speaking, and if so in which circumstances.[ii] The legal question is whether abortion should be legally available, and if so in which circumstances.
The meta-ethical question may be less familiar, at least under that description. Meta-ethics is, very roughly, the study of moral values, properties or concepts.[iii] Rather than asking what is good or what is morally permitted, we ask what is morally valuable, and why. The central meta-ethical question about abortion is as follows: what is it about the foetus which makes it morally important, to the extent that it is morally important? An opponent of abortion will often answer that its humanity, the fact that a foetus is a living human being, is enough to give it the same moral value as any other human. Someone who supports the widespread availability of abortion may propose that the foetus is valuable only when it can survive outside of the womb; or they may suggest that the foetus acquires a moral status comparable to an infant or an older person only when it becomes sentient, i.e., becomes capable of having conscious experiences. This is generally agreed to occur in the second trimester at the very earliest.
The meta-ethical question is a genuinely difficult one, and it is trecherous terrain for proponents of repeal. That abortion is the taking of an innocent human life, and that this is always a bad thing, is a clear line for opponents of abortion to take. It is trickier to argue that some human lives are not as important as others; taking this line requires clarifying what it is about human lives which makes some valuable and others not, and that is not an easy task.
Given the recommendations of the committe, it will be difficult for proponents of repeal to avoid the meta-ethical question. This is because the committee’s recommendations would, if enacted, in effest amount to adopting two different legal regimes concerning abortion: unrestricted access up to twelve weeks, restricted access thereafter. Supporters of repeal must not only be able to justify each regime separately, but must have some answer as to why the two should go together.[iv] By far the most obvious answer is that the law should take account of changes in the moral status of the foetus as it grows and develops.[v] The difficulty is how this change in moral status is best understood and most effectively defended.
[i] For instance, Amnesty International has made such cases a prominent part of its campaigning for repeal (https://www.amnesty.org.uk/ireland-abortion-laws-repeal-eighth-amendment ).
[ii] A further question concerns the circumstances under which abortion would be, if morally permitted, the right choice. For an excellent disucssion see Rosalind Hursthouse, ‘Virtue Theory and Abortion’.
[iv] Nor would it help for proponents of repeal to argue that just one regime or the other should be enacted. There is little chance that the public would accept abortion on request without time limits , and legislating for abortion on the basis of specific grounds, e.g., rape or incest, would be inpracticable.
[v] Something like this was proposed, in passing, by John Crown (https://www.independent.ie/opinion/analysis/doctors-need-to-join-in-the-embryo-debate-26430573.html ).