Wednesday, August 22, 2012

Protection of the unborn in Ireland

Nora Bennis has, in a circular letter, set out the current position in respect of protection of the unborn in Ireland.
Nora expresses the belief that the Irish Government that cannot legally introduce legislation for abortion and cites a number of reason in support of her argument.    
Nora writes that William Binchy rightly pointed out in the Irish Human Rights Commission (IHRC) Submission to the UN in 2005 that the Irish people rejected the proposal to introduce abortion legislation in the 2002 referendum.  The IHRC had recommended that the Government should introduce legislation but William Binchy opposed the recommendation because, in his view, "legislation of this type would violate the human rights of unborn children up to the time of birth, denying them the right to life, dignity and equality, and would be inconsistent with the democratic will, since the referendum of 2002 demonstrated that the majority of voters oppose such legislation.”  (IHRC Submission s. 2.h asterisk.)

Nora also points out that the Irish Government, in the 1997 Second and Third Reports to the United Nations on CEDAW, clearly stated that abortion was illegal in Ireland because of the existence of the 1861 Offences against the Person Act.  In addition to this the people voted NO in the 2002 referendum which included a proposal to eliminate Articles 58 and 59 of that Act.  The Irish Government in its Fourth and Fifth Report on CEDAW said that the legal position remained as it was before the 2002 referendum.   What did they say it was before the 2002 referendum?  They said it was illegal because of the 1861 Act.   Therefore, it is still illegal.  In fact, the argument could be made that sections 58 and 59 are now even more binding since the people have voted by referendum in 2002 to retain them.   

Nora also points out the anomalies of the the infamous X case and says it is arguable that the X case judgement is null and void  - “per incuriam”. The judges in the Supreme Court were in breach of Art. 34.5.1 of the Irish Constitution because, despite their Oath to the contrary, they made no attempt during that hearing to get full knowledge of the facts necessary for them to come to a proper decision (they didn’t have a medical doctor present to fully inform them about abortion, only a psychologist,  and not a medical doctor.) The first principle governing any law states that everything must be presumed to have been properly and correctly done – “omnia praesumuntier rite et solemnitier”. If the Court is silent on important matters that would have changed the judgement, as in the X Case, the judgement is invalid.

The European Court of Human Rights did not call for abortion legislation to be introduced in Ireland. They called for “clarity” of Ireland ’s position.  Ireland ’s position is quite clear:-

  • The Irish people said no to abortion legislation in 2002.
  • The Irish people also in 2002 voted for the retention of Articles 58 and 59 of the Offences Against the Person Act, 1861.
  • The Government has already clarified to the United Nations that the legal position after the 2002 referendum remained the same as it was before it, i.e. abortion is illegal because of the 1861 Act.
  • The X case judgement is void.  
These arguments can be legitimately made, and we must all make them now, and stand together on them for the sake of Ireland ’s unborn babies and their mothers.  The fact that abortion kills babies and puts the health and welfare of mothers in grave danger, can no longer be denied.