Repeal of the 8th Amendment does not imply erosion of disability rights

In the run-up to the Irish Referendum on the appeal of the 8th Amendment, the No campaign has used Down syndrome to suggest that the 8th is necessary to protect disability rights. It isn’t.

First, the Love Both campaign website notes that government proposals contain no explicit ban upon abortion on grounds of disability diagnosis. It infers that “babies with disabilities” and “babies with Down syndrome” are placed at “serious risk”. (I won’t say anything about this rhetorical strategy of conflating foetus with baby or child besides noting that a foetus is neither, and that you can read more about that here). While its true that the government proposal requires no additional justifications, this is only during the first twelve weeks. Someone could seek abortion during first 12 weeks on grounds of Down syndrome in principle, but almost certainly not it fact. According to the Royal College of Physicians, the point at which tests can be conducted and the time taken to receive test results make it “virtually impossible” to diagnose Down syndrome within this 12 week window. After 12 weeks, abortion can take place only where there is significant risk to the woman’s health, or where the foetus is determined to be non-viable. Hence no abortion after 12 weeks on grounds of Down syndrome or many other irregularities (unlike 24 in UK). By leaving this out, Love Both implies — or to be charitable, fails to correct the assumption — that Down syndrome diagnosis is enough to justify abortion under more relaxed conditions (perhaps the ‘6 months’ that’s being thrown about). In sum, the No campaign suggests that repeal and government proposals will make it very easy to abort ‘babies’ with Down syndrome. It won’t.

Second, despite current Constitutional conditions, abortions are already taking place. This means that women presumably are seeking abortions on the grounds of Down syndrome or some other foetal irregularity. They are simply doing so outside Ireland. This suggests that maintaining the 8th will not comprehensively prohibit abortion on the grounds of Down syndrome or other disability, and effectively sweeps reckoning with this issue under the carpet, since it is being parcelled up with the more general culture of secrecy and shame that currently surrounds abortion in Ireland. Furthermore, that abortions on such grounds will continue even if the 8th is maintained returns us to more general arguments in favour of repeal (these have been covered in many places, and I won’t rehearse them here).

Third, Love Both suggests that 8th is only bulwark protecting lives of Down syndrome babies from widespread abortion seen in other European nations. This tracks a general No strategy: that without the 8th there will be widespread destruction of life (where life is conflated with personhood). This makes it seem that repeal will inevitably cause abortions, and that disability diagnosis will almost certainly lead to abortion (Love Both responds to claims that screening can’t reliably diagnose Down syndrome during the first trimester, by stating that“many women won’t wait for further diagnostic testing” and will instead abort). One reason this is important is that it sidelines the fact that where abortions are sought, actual Irish people — women, partners, parents, friends — will deliberate about, advise on, and ultimately take, the ethical decisions about whether or not to seek abortion. Furthermore, it implies that women receiving Down syndrome diagnoses will always abort if that option is available. That is, it obscures the autonomy of those most directly affected by the situation in question. Some will indeed decide to have abortions, while others will opt not to. These decisions will be based on different ethical frameworks, on counselling, upon whether or not families are able to support a child; whether or not abortion is, in their circumstances, the right option.

This argument — that, as Love Both say, the 8th is essential for “protecting and valuing the rights of people with disabilities” — is also significant because it tries to link abortion and disability rights by making prohibition of the former and protection of the latter seem like two sides of the same coin. That is, it suggests that relaxed abortion law will infringe disability rights; protection of disability rights requires that the Amendment be maintained. However, this connection between availability of abortion and likelihood of abortion in cases of foetal irregularity is neither necessary nor inevitable. The right to abortion and disability rights are separate issues, and should be decoupled. It is not inconsistent to support access to abortion and to take issue with abortion on grounds of disability.

This is because negative assessments about disability are problem in society in general, and not a problem with abortion as such. Ableism— the idea that it is bad, pitiful, or shameful, to have a body or mind that works in unusual ways — is knitted into the fabric of daily life. Material environments, social norms, cultural products: are all imbued with ideas about which kinds of lives are more or less valuable. Where such ideas are taken for granted, how could they not inform decisions about abortion? There may be high rates of abortion on the basis of Down syndrome in the UK, Denmark, and Iceland. First, these are matters of empirical fact, not inevitable entailments of the availability of abortion. And importantly, they have more to do with wider attitudes about disability than they have to do with the availability of abortion. This is because availability of abortion does not directly cause abortion on the basis of disability. Ableism, by contrast, is a likely to be a proximal cause of abortion on the grounds of disability.

While I am somewhat less sanguine then Together For Yes when they say that “[w]hatever a woman decides, it will be a considered and thoughtful decision taking into account the well-being of her family”, this is not because I don’t trust women, or because I am worried about the availability of abortion, but because ableism is pervasive. However this does not justify restriction of bodily autonomy. We can support bodily autonomy while working to eliminate ableist prejudices, thereby to enrich deliberative resources available to those deciding whether or not to carry a foetus to term; and to improve support for families with disabled members, thereby to improve the lives of those that do choose to have a child.

Ultimately, safeguards upon the lives of disabled people do not entail a corresponding restriction of the bodily autonomy of Irish women.