Legal Clarity, Please.


Let’s assume, for the sake of argument, that the malignant fairytale is true, and that there is something living and active called ‘the people of Ireland’, and that ‘the people of Ireland’ can enshrine a conceptual dissection of women’s bodies in law, such that the woman and the foetus she carries inside her are two separate individuals, whose dignity and freedom are to be assured, with equal right to life.

Let’s also assume that this people of Ireland have a legitimate authority to do this. Let’s assume that its legitimacy derives from the fact that the people of Ireland have freely adopted, enacted, and given their constitution to themselves, and that as such, in the final instance, they can legitimately call on a band of armed men to enforce the observance of the aforementioned conceptual dissection, and that all the citizens of Ireland consent to this.

Look at the comments of Bishop John Fleming published in the Irish Times, immediately before Savita’s story reached the world. He justified the prohibition on abortion by saying that ‘for Christians, our bodies are not our own to do with them what we will.’ In a way, this is true: our bodies are not items of property that we can exchange for other items of property, even if most of us are compelled to sell our labour power in order to live. Nonetheless, the unspoken corollary to John Fleming’s position, with regard to law in Ireland, is that our bodies belong to the State to do with them what it will. This, as Ireland’s prohibitions on abortion, and the ensuing public debate in the aftermath of Savita Halappanavar’s death show, is the consensus position.

For example, look at Fergus Finlay’s comments published in the Irish Examiner today. He says: ‘We live in a country where the people have decided, very clearly and very explicitly, that we fundamentally value the lives of unborn babies. The people have also decided, equally clearly and explicitly, that we do not want under any circumstances to prevent any woman who wishes to terminate her pregnancy abroad from doing so. And the people have decided, again clearly and explicitly, that no woman whose life is in danger — for whatever reason — should be denied a termination here at home. That’s a clear and unequivocal position. And it’s the position of the Irish people, as expressed time and again in the ballot box.’

That is, the ‘people of Ireland’ can call on the institutions of the State to enforce a prohibition on abortion as it sees fit, and this is regardless of the views of the woman who is pregnant. It is only if the woman is at risk of death that an abortion might be allowed, but this has nothing to do with what the woman thinks: it is a matter for an expert or group of experts with sufficient legal and medical qualifications, appointed by the State, to adjudicate.

Well, let’s say you believe the malignant fairytale, as Fergus Finlay and so many other people do, about the legitimate sovereign authority of the people of Ireland to make and enforce such laws. And let’s say you believe that a woman who is an Irish citizen freely denies herself the right to an abortion because that is what she has decided alongside the rest of the Irish people.

But even if you do believe all this, Savita Halappanavar, as far as I can gather, was not an Irish citizen.

Therefore, what legitimate authority would the people of Ireland have to impose their laws on a person who was not even a citizen of their State, a person who therefore has had no role in the drafting, free adoption, enacting or giving of the constitution to herself?

Savita was a person who, by virtue of her status, would not have been able to vote in any future referendum on abortion laws. Had she been able to give birth to a child in Ireland, would her child have been an Irish citizen? Perhaps, perhaps not, and certainly not automatically. But there are many other women of a similar status whose children would definitely not have been granted the status of Irish citizen, and after compelling them to give birth, the State –acting on behalf of the people of Ireland- can expel them and their children beyond the borders of the State, or, it can confine them to degrading living conditions as it wills.

What legitimate authority, then, –assuming the malignant fairytale is true- did the Irish State have to execute its designs on Savita’s body, or, for that matter, on the body of any woman who is not a citizen of Ireland, and to say that their will counts for nothing?

“This is a Catholic country” is the phrase that has reverberated around the world in the aftermath of Savita Halappanavar’s death at the hands of the Irish State: it was the rationalisation provided to her and her family for the refusal to accede to her request for an abortion.

However, if we see this primarily in terms of religious belief, we lose sight of the question of legitimate State authority, and we disregard the consequences of our belief in malignant fairytales. Not only with regard to abortion, but with regard to the way in which our society is organised, and the designs that are imposed on us, with frequently catastrophic consequences for those people who do not attain the status of citizen, as well for as many other people, especially women, who do.

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