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27/05/2018
Irish Politics - Legislation

People these days often have only a dim and fading appreciation of the circumstances that brought us to this moment


The outcome of Friday’s referendum marks, I hope, the beginning of the end of a particularly fraught period in Irish politics and law.

If the Eighth amendment had never been made in 1983, the complexity of all the issues surrounding the circumstances in which a pregnancy may be ended would most likely have been reflected in a series of enactments by the Oireachtas to adapt our laws to modern realities and attitudes.

But elevating those complexities to be governed by a simplistic constitutional formula was a profound error, albeit an error made in good faith by many people.

People these days often have only a dim and fading appreciation of the circumstances that brought us to this moment. And it as well now to call them to mind.

Ireland in the 1980’s was a very different place. The State had in 1935 criminalised contraception and family planning until the Supreme Court in 1973 held that the law in question violated the rights of a married woman, Mrs McGee, to matrimonial privacy.

An attempt in 1971 by Senator Mary Robinson to repeal the 1935 legislation was not even granted a first reading in parliament; the Catholic hierarchy condemned her Bill as a “curse upon the country”.

Even then, our legislators (who the Pro-Life movement have recently spent months telling us are not to be trusted) reacted very ponderously to the McGee decision.

The then Taoiseach, Liam Cosgrave, voted against his own Government’s remedial Bill in 1974.It failed.  Charlie Haughey, in 1979, pushed through legislation with some difficulty, restricting all forms of artificial contraception (including condoms) to married persons who had obtained  a doctor’s prescription for bona fide family planning purposes.

Conservative Catholic bodies campaigned to prevent any legalisation of contraception. Those bodies then coalesced and expanded into a Pro-Life movement which had decided to prevent any further judicial reform in the area by having an a pro-life article inserted into the Constitution.

By that means, they hoped, neither the legislature nor the courts could relax in any way the total ban on abortion without a referendum.

Because of the highly competitive political balance between Garret FitzGerald’s Fine Gael and Charlie Haughey’s Fianna Fail, the major parties were very vulnerable to the Pro-Life movement’s disapproval on the grounds of being “soft on abortion”.

As part of Garret’s modernisation of Fine Gael, one of its vice-presidencies came to be occupied by a young medical student who was a member of Young Fine Gael. In a media interview, she expressed the view that there were some limited circumstances in which she thought abortion was justified.

This brought in the roof on her. Her views were immediately disowned and she was “encouraged” to resign as a party vice-president. But the damage had been done.

The Pro-Life movement now had a pretext to label FG as “soft on abortion”. To staunch the bleeding political wound, Garret engaged with the idea of a pro-life amendment. Naturally Fianna Fail followed suit and drafted the 8th Amendment Bill. Fine Gael and Labour won the election.

Despite the clearest warnings from the newly appointed attorney general, Peter Sutherland, the Eighth Amendment was put to the people and passed in 1983.

Now SPUC (the Society for the Protection of Unborn Children) commenced a campaign to prevent bodies like students’ unions and the Dublin Well Woman centre from giving any information about the fact that abortion was available in England to women and girls in Ireland.

SPUC obtained injunctions from the High and Supreme Courts threatening any person or body from disseminating information or counselling any woman about her option to go to England for an abortion. The sanction they held over their defendants was imprisonment for contempt of court.

Nearly all of the older leading figures in the No side in Friday’s referendum were active supporters of the SPUC drive against information and counselling in the 1980s.

Then came the 1992 X case which convulsed the country.

The High Court at the instance of the Attorney General handed down an injunction to a 14 year-old rape victim and her parents requiring her to return to Ireland and prohibiting them from having an abortion in England.

Most people were rightly shocked. They had been assured by the Pro-Life movement back in 1983 that such an order would never be made.

On appeal to the Supreme Court, a majority held that the injunction should be lifted. But the Court did not find that travel injunctions were wrong; on the contrary, the Supreme Court only held that the uncontested evidence that the pregnancy if continued constituted a real and substantial suicide risk for the school-girl made it lawful to terminate the pregnancy – whether in England or, horror of horrors, in Ireland.

The Pro-Life movement was outraged. They immediately demanded that suicide be excluded as a ground for termination in Ireland, saying the people had never voted for that. Their supporters spread the rumour widely that the whole case had been contrived.

The liberal majority too had had enough. They demanded that the Constitution be amended to stop any more travel injunctions and to stop SPUC injunctions on providing information in Ireland concerning the availability of abortion in England.

Albert Reynolds responded to the public disquiet with three separate proposals for constitutional change – the 12th, 13th and 14th Amendment Bills. The people rejected the 12th Amendment bill disallowing suicide as a ground. They approved the 13th Amendment bill prohibiting travel injunctions for pregnant girls and women. And they approved the 14th Amendment bill allowing for the provision of abortion information subject to legislation.

This outcome meant that the legislature should make provision for suicide as a ground for abortion in Ireland. But the “never to be trusted” legislators (including myself) never did so; it took the death of Savita Hallapanaver for the  highly restrictive 2013 Protection of Life In Pregnancy Act to be passed. Bertie Ahern had in the meantime committed to revisiting the suicide issue but his proposals were rejected in 2002 by a combination of liberal voters and hard-line pro-life voters.

Friday’s vote shows that Ireland has changed.

The people, or a majority of them, have moved on from the Ireland of the 1980s in which the Catholic social conservatives still live - and would wish to have us all still live.

A large amount of this arises from the institutional and theological obsessions of the Catholic Church with sexuality, purity, celibacy, and subordination of women.

From the 1930s encyclical Casti Conubii  which equated family planning to the “sin of Onan” and proclaimed the husband to be the naturally ordained head of the family, to Humane Vitae in 1968, the Catholic church has been on a self-destructive theological journey over a cliff. Ironically, John Paul II was one of the principle advocates of Humanae Vitae.

The clerical hardliners have left many, many people who aspire to be Christian behind them.

The cost to the institutional church and its standing has been enormous. Its influence on Irish society has collapsed. The signs were on it with the Marriage Equality referendum result. While social attitudes vary geographically and by age cohort, modern Ireland has moved on.

In terms of politics, things are changing too. While the pro-life campaigners insisted politicians are not to be trusted, they must now realise that the contrary is the case.

The people, their elected politicians, and their duly appointed judges are to be trusted. Women are to be trusted.

Maybe some people should now ask themselves whether their own atavistic attitudes and dogmas are to be trusted.

The 8th Amendment  was meant to be the ultimate bastion of moral conservatism. But its wording was so extreme as to carry with it the seed of its own destruction.

Referendums are the occasion for a simple binary choice. By making their beliefs and values subject to a simple binary judgment, the well -meaning and the zealots have repeated their mistake of 1983.

Things are not always black and white. Relativism may be a dirty word in some theological circles but it is the coinage of politics and the antidote to absolutism.

Now I and the other legislators must use our skills to enact workable and compassionate laws. We have been entrusted with that task by the Irish people. We will not rush into laws that are ahead of the centre of political gravity.

But we have no reason to be afraid of doing what we feel to be right and just according to our own judgments now; we should reclaim that right and that duty from the long shadow of harmful absolutism in which it languished for thirty years.

 

 


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