Ireland_________________________________________________________________________
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Another Referendum?
A special legislative commission, formed to recommend options that might end the public debate on abortion, has produced a wide range of options, all of them controversial.

By Kieron Wood

Abortion is once again topping the political agenda in Ireland, with the publication in September of a Government “Green Paper” (or discussion document) on the divisive issue.

Until 1992, abortion was illegal in Ireland. The ban was originally enshrined in the Offences Against the Person Act of 1861, a law passed during the time of British rule in Ireland. In 1967 Britain enacted its own Abortion Act, opening the way to legal abortion, and by the early 1980s, there was growing pressure on Ireland to decriminalize the practice, bringing the country’s laws into line with the rest of the European countries.

Irish pro-life activists decided that the best way to guarantee the right to life of the unborn was to amend the 1937 Irish Constitution so as to ensure that the 1861 law could not subsequently be liberalized by a pro-abortion legislative majority. Consequently, in 1983, the Irish people voted by a two-to-one majority to insert a clause in the Constitution acknowledging the right to life of the unborn—with due regard to the equal right to life of the mother.

Pro-lifers believed the battle had been won, but, in 1992, in the so-called X Case, the Irish Supreme Court—ruling on the case of a pregnant schoolgirl who had threatened suicide—decided that the Constitution did permit abortion in the case of “a real and substantial risk to the life (as distinct from the health) of the mother.” No time limit was specified beyond which an abortion would be outlawed. In theory, therefore, any pregnant woman who threatens suicide is now entitled to have an abortion in the Republic of Ireland up to the moment of delivery of her child. (In practice, however, no Irish hospitals offer direct abortions.)

Unresolved issues

Following the judgment, another Constitutional referendum was scheduled, aimed at amending the document so as to permit the distribution of information about abortion clinics in other countries, and to allow pregnant women the right to travel to such clinics for abortions.

The Irish Catholic bishops condemned the Supreme Court judgment in the X Case, and opposed the “right to information” and “right to travel” amendments. They warned:

A law which purports to authorize the direct and intentional killing of an innocent human being withdraws the protection to which every innocent life is entitled and denies the equality of everyone before the law. Such a law, therefore, contradicts the very purpose for which law exists and is not a true, morally binding law, but rather an act of violence and a corruption of law.

Pope John Paul II added his voice to that of the Irish bishops, reminding the Irish people:

. . . procured abortion is the taking of the life of an already existing human being. To uphold this principle and to enshrine it democratically in the Constitution and laws of the state does not imply insensitivity to the rights of others. . . . There can be no right to kill an already existing though yet unborn human being. Likewise, there can be no justification from the moral point of view for disseminating information the purpose of which is to facilitate the killing of the unborn.

But following a concerted political and media campaign in favor of the proposals, the Irish electorate voted in favor of the two amendments by a majority of two to one. The number of women crossing the Irish Sea to England for an abortion rose, to the point where today almost 6,000 Irish women a year travel to British clinics for abortions.

Constitutional options

Public disquiet at the impact of the Supreme Court decision led to demands for a new referendum; pro-lifers sought to close the constitutional loophole, and restore the absolute ban on abortion in Ireland.

The majority Fianna Fail party in Ireland’s coalition government announced it would support proposals for a Constitutional referendum. An all-party committee was set up to consider the issue. The committee received more than 10,000 submissions, the “vast majority” of which supported proposals for a new Constitutional referendum to achieve an absolute prohibition on abortion.

The resulting 172-page Green Paper, published in mid-September, offered seven possible options for discussion:

•    an absolute Constitutional ban on abortion;

•    an amendment of the Constitution to restrict the application of the X Case judgment;

•    retention of the status quo;

•    retention of the Constitutional status quo, with an additional legislative ban on abortion;

•    legislation to regulate abortion along the lines of the Supreme Court’s judgment in the X Case;

•    a reversion to the pre-1983 position, with abortion banned under the 1861 Act; or

•    legislation to allow abortion on grounds more expansive than those set forth in the X Case.

The first option—an absolute Constitutional prohibition—would still allow doctors to provide necessary treatment for pregnant women, even in cases where the indirect consequence of the treatment would be the death of the unborn child.

The Medical Council of Ireland, in guidelines for doctors drawn up in 1998, says that “the deliberate and intentional destruction of the unborn child is professional misconduct.” But the professional rules add the proviso: “Should a child in utero suffer or lose its life as a side effect of standard medical treatment of the mother, this is not unethical.” The guidelines reflect the Catholic principle of double effect, which, for example, allows doctors to remove a cancerous womb or an ectopic pregnancy, even if the operation results in the death of the unborn child.

But the Green Paper comments: “It is difficult to see how the destruction of the embryo can be described as an unintended side-effect.” The document says the Government does not accept the argument that a distinction between “direct” and “indirect” abortion could be inserted into the Constitution.

No clear choice

The second option would modify the X Case judgment by specifying that a woman would not be entitled to an abortion simply because she threatened to commit suicide.

Option three would leave each case to be decided on its merits, in line with the Supreme Court judgment. The courts would become the ultimate arbiters of the legality of each abortion.

The fourth proposal would retain the current restrictions on abortion, but would also re-enact a legislative prohibition on the practice. The law could, however, be amended by any subsequent Government.

Option five would allow legislation allowing for an abortion in cases where the mother’s life was at risk. But such legislation would fly in the face of the present medical guidelines.

The sixth possibility would not alter the Constitutional protection for the life of the mother, and would leave the 1861 Act open to judicial interpretation.

The seventh option, the most liberal of all, would allow abortion in “hard cases,” such as pregnancies involving incest, rape, congenital malformation of the fetus, and risk to the physical or mental health of the mother.

The Green Paper also questions the precise legal meaning of the term “the unborn.” It says that, if this term refers to the fertilized ovum from the moment of conception, the legal implications of accepting that terminology entail problems for abortifacient treatments such as the “morning-after” pill and the intra-uterine device, as well as for the development of in vitro fertilization. The Paper notes that any attempt to overcome this difficulty by specifying that an abortion cannot take place after a set time (for example, 10 days after conception) would arouse significant opposition.

The public preference

A spokesman for the Catholic bishops’ conference, which made a submission to the all-party committee, said the bishops would study the Green Paper carefully and would contribute to public discussion on the issue. He added: “The bishops’ position is clear and consistent and has been restated on several occasions: the Irish people should be offered the opportunity to restore by referendum the Constitutional guarantee of the right to life of the unborn child.”

But in the Anglican Church of Ireland, voices were raised against any such proposal. Other members of the Protestant community—which comprises 5 percent of the Irish Republic’s population—also insisted that moral issues such as abortion should not be enshrined in the Constitution.

The Primate of Ireland, Archbishop Desmond Connell of Dublin, has already voiced his support for a new referendum—a view which he said was favored by a clear majority of the electorate. Archbishop Connell said that a referendum was needed to give people a clear and unambiguous choice of ruling out abortion completely and it was disconcerting that the people’s views were not reflected in the attitudes of the political parties.

Ireland’s largest political party, Fianna Fail, which by tradition is socially conservative, is largely in favor of a referendum. The Irish prime minister and Fianna Fail leader, Bertie Ahern, promised that he would not enact legislation without consulting the people. His brother, Noel Ahern, said he wanted to see a “clearly-worded pro-life referendum” before the next general election.

The enthusiasm of the prime minister for a Constitutional referendum may be due in part to his need to placate two independent members of the Irish parliament whose support is crucial to maintaining his coalition in office. Harry Blaney, a Republican from Donegal, and Mildred Fox, a member from Wicklow (and a member of the Anglican Church), have both warned that their continuing support for the Government depends on the prime minister’s keeping his promise for a Constitutional referendum.

But a spokesman for the main opposition party, Fine Gael, said it would “probably be unwise in practical terms to proceed with another referendum or with legislation.” The leader of the left-wing Labor Party agreed the Constitution “is not the appropriate place to deal with a complex medical and social problem like abortion.”

The All-Party Committee on the Constitution is expected to hold public hearings over the next few weeks, at which interested groups will be able to comment on the Green Paper. But given the diverse political makeup of the committee and the disparity of views expressed by its members, it is not likely that the group will be able to unite behind any single recommendation.

Kieron Wood writes regularly for Catholic World Report from Dublin.

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