Attorney General Marie Whelan
The Eight Amendment, which protects the life of the unborn, has been invoked by Enda Kenny to explain why his party could not support Clare Daly’s legislation to permit abortion in the case of fatal foetal abnormalities.
The advice given has not been formally published extracts were leaked in last Sunday’s Sunday Business Post.
The paper reported:
“The advice states that where babies are capable of being born alive, “it is quite clear that Article 40.3.3 is engaged”….The Attorney General’s view is unequivocal, and leaves no room for doubt that the legislation proposed by independent TD Clare Daly last week to allow abortion in cases of fatal foetal abnormality is in conflict with the Constitution. The advice notes that there is no consensus as to what is meant by the term “fatal foetal abnormality”. However, it says, in many cases there is a possibility that such foetuses would be born alive. This is the case with conditions such as Edwards Syndrome and anencephaly. Even though babies with these conditions will eventually die after a period which in some cases may be very short, the Attorney General advised that the constitutional protections of Article 40.3.3 apply.”
On foot of this, Unemployed Lawyer writes:
When you look at the terms of the Bill (Protection of Life in Pregnancy (Fatal Foetal Abnormalities) Bill 2013) put forward by Ms Daly, this Bill (Section 1) actually defines ‘fatal foetal abnormality’ in such a way as to remove the concerns voiced by the Attorney General, so as to confine it to an abnormality ‘incompatible with life outside the womb’.
A foetus suffering from an abnormality ‘incompatible with life outside the womb’ cannot by definition be born alive. As such, irrespective of how ‘fatal foetal abnormality’ is defined in ordinary life, the way in which it is defined in the Bill appears to deal with the concerns expressed by the A-G.
Was the Attorney General made aware, when providing this advice, of the definition of ‘fatal foetal abnormality’ in Section 1 of Ms Daly’s Bill, as this does not appear clear from the extracts from the advice apparently provided by her – even though this advice was described as having been provided ‘last week’?
And also – was her sole objection to fatal foetal abnormality legislation – as appears from the SBP article (extract above), which of course may not reflect accurately the Opinion as a whole – based on the possibility that it might apply to some foetuses capable of surviving outside the womb. Perhaps your esteemed caffeinated legal friend might advise…
Previously: Was It Really Unconstitutional?
(Laura Hutton/Photocall Ireland)