by Rebecca Kiessling, Personhood Alliance Board Member
Today I grieve for the innocent preborn children in Northern Ireland who will be put to death as a result of High Court Justice Mark Horner’s ghastly ruling
-- just because they may be conceived in rape or because a doctor tags them with the diagnosis of “fatal foetal abnormality.” Not only was I conceived in rape, nearly aborted, while legally protected by law at the time, but I also adopted a baby – Cassie – who was diagnosed with DiGeorge Syndrome and died in our arms at 33 days old. Additionally, I’m also an attorney who has litigated numerous high-profile cases involving these issues, and I’m the founder and President of Save The 1
– a pro-life organization with hundreds of members of who were conceived in rape or incest, mothers who became pregnant by rape, and also hundreds who were given a challenging pre-natal diagnosis. Given my background and expertise, I see it necessary to issue a thorough response to Justice Horner’s opinion and I’m hoping this will offer a new perspective for many.
In his ruling which was issued today, Justice Horner determined that Northern Ireland’s abortion ban (which permits abortion only to save the life of the mother) violates Article 8 of the European Convention on Human Rights, in the case of “fatal foetal abnormality” (FFA) throughout the full term of the pregnancy, and in the case of sexual crimes -- rape and incest – only to the point of viability when the child can survive outside of the womb.
Here’s what Article 8 actually says:
Article 8 – Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
For those of us in the U.S. and/or who are very familiar with Griswold v Connecticut, which led to the subsequent ruling in Roe v Wade, the first item in Article 8 is the same kind of privacy right created by the U.S. Supreme Court in Griswold and then used by the Roe Court to legalize abortion for any reason in the United States. But in the present case in Northern Ireland, the petitioner – The Northern Ireland Human Rights Commission – was not seeking in this instance to establish a general right to an abortion. The only reason that they didn’t is because of the 2010 European Court on Human Rights (ECHR) ruling of A, B and C v Ireland (Republic of Ireland) which specifically found that there is NOT a straightforward right to an abortion under the European Convention on Human Rights.
However, you can be assured that these cases are merely groundwork for abortion rights activists, and that they will be returning to establish a broader right, if they deem it to be necessary. The abortion lobby may not end up feeling the need to do so if every woman seeking an abortion in Northern Ireland just has to say she was raped. No guidelines were established by Justice Horner, so really, this ruling currently stands to allow abortion on demand for any reason, as long as a woman just says she was raped. Norma McCorvey – Jane Roe from Roe v Wade – was told by her abortion rights attorneys to say she was gang raped, and this is absolutely a common tactic of the abortion industry. Just imagine putting a rapist to death merely upon the assertion that a woman was raped! Yet, that is what will happen here – only, it is the innocent child who would be put to death and not the alleged perpetrator.
Given section 2 of Article 8, Justice Horner was forced to consider the exceptions which allow the public authority to interfere with the exercise of such privacy rights. He, of course, had to refer to the ECHR ruling in A, B and C v Ireland which found no right to an abortion, and in fact found that the interference was “in accordance with the law and necessary in a democratic society for one of the legitimate aims specified in Article 8 of the Convention,” that there was a wide measure of appreciation for the Republic of Ireland’s protection of the rights of the unborn due to the “profound moral views of the Irish people as to the nature of life,” and also because their Constitution guarantees the right to life from the date of conception. Northern Ireland does not have such a guaranteed right -- merely an abortion ban statute, which demonstrates the need for nations to provide such a right within their constitutions. This should be a pressing goal worldwide!
Justice Horner went on to analyze the arguments put forth by the Attorney General of Northern Ireland, which included the fact that Northern Irish pregnant women are not forbidden to travel to England to secure an abortion. I agree with his conclusion here: “If it is morally wrong to abort a foetus in Northern Ireland, it is just as wrong morally to abort the same foetus in England. It does not protect morals to export the problem to another jurisdiction and then turn a blind eye.” I can’t imagine an attorney general in Michigan arguing such a point – that a woman can just go to NY or wherever to obtain unrestricted access to an abortion. You defend your own laws and don’t point to some other jurisdiction that doesn’t respect life.
In his ruling, Justice Horner also questions whether the abortion ban is intended to prevent abortions, or simply to forbid them from occurring in Northern Ireland, and he points out the fact that no evidence was put forth by either side to address this question. I find this mind-boggling. There must be some evidence to demonstrate how many women in Northern Ireland give birth after rape, or give birth after being given a diagnosis of a fatal fetal abnormality. A commission was done in Northern Ireland this past year, and surely, surveys could have been implemented within hospitals upon women giving birth to try to ascertain how many are being born under these circumstances. Even if you don’t have the percentages of how many are being saved by the law, you could still at least point to how many are being born. Even if one life is saved, that child is worthy of protection.
Justice Horner complained that wealthy women could go to England for abortions, while it greatly affects the ability of impoverished women to terminate their pregnancies “if they cannot obtain charitable assistance” -- yes, he calls it “charitable assistance.” Real charity means having compassion on the child, as well as on the woman. Real charity is meeting her actual needs, and not her desire to kill her own child. How warped is a judge’s thinking when he believes abortion – killing innocent preborn children -- is “charity?!” I can’t help but think of how his reasoning would apply to all abortions, on demand for any reason, which is what it seems he would be inclined to do if it weren’t for the ruling in A, B and C v Ireland.
Looking at section 2 of Article 8, Justice Horner found that the interference is “in accordance with the law,” since the abortion ban is actually inscribed in the law, and he found that there is a “legitimate aim” to protect pre-natal life, even in cases of “serious malformation of the foetus” when it’s not diagnosed as fatal. However, he found that “it is illegitimate and disproportionate to place a prohibition on the abortion of both a foetus doomed to die because it is incapable of an existence independent of the mother’s womb and the viable foetus conceived as a result of sexual crime.”
He then considered whether the interference is “necessary in a democratic society” – whether there is a pressing social need. Again, he addressed the question of whether the ban actually saves lives and concluded that there was “not one iota of evidence” that this criminal statute in these specific cases of FFA and sexual crimes has resulted in the saving of any pre-natal life. This is a great shame that he is summarily dismissing the lives of innocent children – condemning them to death – based upon the fact that he does not have raw numbers before him on how many lives would be saved.
Then he goes on to say that the abortion ban places a disproportionate burden upon victims of sexual crimes:
“She has to face all the dangers and problems, emotional or otherwise, of carrying a foetus for which she bears no moral responsibility and is merely a receptacle to carry the child of a rapist and/or a person who has committed incest, or both.”
Justice Horner summarily insults every mother who became pregnant by rape by calling her a “receptacle” and referring to HER child as “the child of a rapist!” He’s also making numerous faulty assumptions here – that the rape survivor will suffer problems, emotional or otherwise, from carrying the child and giving birth, when studies actually demonstrate that women are far worse off after the abortion as compared to giving birth. Dr. David Reardon’s book Victims and Victors: Speaking Out About Their Pregnancies, Abortions and Children Resulting From Sexual Assault
details this research. Having this research on hand, along with the multitude of testimonies from rape victim mothers and their children, Justice Horner’s arguments are found hollow.
In the case of fatal fetal abnormality, Justice Horner’s arguments are again grossly distorted. Finding that the abortion ban constitutes a “gross interference” with a mother’s “personal autonomy” in the face of a fatal foetal abnormality diagnosis from a doctor, here’s what he concluded:
“In the case of an FFA there is no life to protect. When the foetus leaves the womb, it cannot survive independently. It is doomed. There is nothing to weigh in the balance. There is no human life to protect. Furthermore, no evidence has been put before the Court that a substantial section of Northern Ireland’s community, never mind a majority, requires a mother to carry such a foetus to full term.”
Save The 1
has a plethora of stories of parents given an FFA diagnosis, and their children are still living. If they are alive in the womb at the time of diagnosis, then there is human life there to protect! Even if they die upon or after birth, their lives are still valuable, just as the lives of any person given a lethal diagnosis. We don’t kill someone early, just because they will die. In fact, we ALL will die – it doesn’t matter though, because human life is precious and it’s discriminatory to say which lives are valuable based upon some doctor's estimation of their life expectancy.
Earlier in his opinion, rejecting the argument for an exception in cases of serious foetal malformation, Justice Horner had this to say:
“There is also surely an illogicality in calling for no discrimination against those children who are born suffering from disabilities such as Down’s Syndrome or spina bifida on the basis that they should be entitled to enjoy a full life but then permitting selective abortion so as to prevent those children with such disabilities being born in the first place. This smacks of eugenics. It is always difficult to draw the line and it comes as no surprise that the phrase “serious malformation of the foetus” remains undefined. It can mean different things to different people.”
He is right in this point, but he’s missing out on the fact that “fatal foetal abnormality” likewise means different things to different people, and all he has to do is look at all of the people born and living with these diagnoses to see that FFA also smacks of eugenics. And so does the systematic targeting and devaluing of the innocent child conceived in rape. The message is that whether born or unborn, these children are not as worthy of life, and the myth gets perpetuated that we are all a great burden, “the child of a rapist” – as Justice Horner said – instead of being seen as our mother’s child, and that we are somehow stained with the rapist’s iniquity and a “horrible reminder of the rape,” when this is not at all how our mothers see us.
The discrimination is lifelong, for children conceived in rape and their rape survivor mothers who are not believed, because judges like Horner think a true rape victim would have aborted and needed an abortion, but also for those given a fatal foetal abnormality. Doctors often refuse to treat upon birth and for months and years after, because their diagnoses become self-perpetuating. They don’t want these children to live because many medical professionals see them as a drain on the system.
Lastly, Justice Horner’s repeated statements alluding to public opinion is the most disturbing. The European Convention on Human Rights, and the U.S. Bill of Rights, were put into place to protect the weakest among us – no matter what the majority of public opinion is. Human Rights are all about protecting the most vulnerable, the most despised, devalued and discriminated within society. In modern society, and especially today in Northern Ireland, this would be the child conceived in rape, and the child marked with a fatal foetal abnormality diagnosis. One is given the death penalty for the crimes of another, and the other child is issued a death warrant by a doctor. Both should be protected.