As someone who believes strongly that the 8th Amendment should now be repealed and that the issues of abortion should be one to be dealt with by laws enacted by the Oireachtas as it considers right and just, I hesitate to become involved in any heated or bitter debate or campaigning because I know well how intense the emotional feelings are on either side of the argument.
But I thought it appropriate to devote some space here to aspects of the controversy that may be swamped in the to and fro of predictable debate.
From a lawyer’s point of view, I think we should be very clear as to what can and cannot be achieved by law – whether it is constitutional law, statute law or judge-made common law.
The Constitution is our supreme law. It cannot deal with very complex issues without extensive interpretation. Ultimately, the constitution means what the Supreme Court says it means – subject to the capacity of the people to amend it.
The 8th Amendment seemed so harmless and simple to a majority of the electorate when it was passed. It was proposed by those who claimed that we could not rely on the judiciary in the 1980s to uphold as constitutional the criminal law which prohibited abortion. It was put to the people in a referendum by political parties which feared the electoral consequences of being seen to be in any way soft on abortion.
And yet the 8th Amendment gave rise within 10 years to the X case in which the Supreme Court, by a majority, ruled that the 8th Amendment justified granting travel injunctions but permitted abortion in Ireland on the basis of a risk of suicide. That decision, in turn, gave rise to a remedial amendment of Article 40.3.3 to prohibit travel injunctions and to permit information on abortion outside the State to be made available here in limited circumstances. An amendment to exclude suicide as a basis for abortion in the State was, however, rejected by the people twice in 12 years.
Hard cases such as Savita Halapanaver’s and cases concerning fatal foetal abnormality kept coming to the surface. The last government’s Protection of Life in Pregnancy Act caused great political difficulty and achieved very little change in practical terms, save to provide in statute law for termination of a pregnancy in the case of established suicide risk – a result on which the Supreme Court had already decided in the X case twenty years previously.
The major new contextual development has been the increasing availability of pharmaceutical abortifacients – from the “morning after pill” to pills capable of terminating a pregnancy up to 12 weeks.
The issue that faces us now is simple and stark: Do we want to make or keep it a criminal offence punishable in law for a young woman to use such an abortion pill six weeks into a crisis pregnancy?
If so, do we want to jail such an offender or her friend who supplied her with such a pill? And, again, do we want simply to shame such a girl if discovered and convicted by a fine or a suspended sentence? Do we want such a girl to go without any medical treatment arising from such a termination for fear of prosecution? Do we want to attempt to prevent such pills from being brought into the country? Who is going to prevent that and how? Do we want to strike a doctor off the Medical register for telling a girl abut such a pill or advising her to take it?
These questions must be answered truthfully and honestly by all of us. We may like or dislike, approve or condemn, abortion as a matter of principle or moral conviction. But we must address these questions fair and square.
And if we do not want, and are not prepared, to criminally sanction the use of such pills or to take any of the foregoing steps to punish and sanction those involved in their use, are we simply being asked to turn a blind eye to the emergence of a de facto twilight abortion regime in the State that is too embarrassing to prevent? Are we to allow the 8th Amendment to remain but somehow to wither into desuetude and irrelevance?
Such a scenario, coupled with a constitutional right to travel and a constitutional right to information about these pills (but only on the basis they are taken outside the State), and a ban on terminations which are sought to end fatal foetal abnormalities and continued monitoring for foetal heartbeat as in Savita’s case, and a ban on any termination to preserve the mother’s health (as distinct from her life), seems increasingly indefensible and unsustainable.
These issues are the issues that confronted the Citizens’ Assembly and the All Party Oireachtas Committee. These issues fully explain their considered reports.
Having said all that, I have to say one thing more.
Most people have not given the issues the sustained consideration that the Citizens’ Assembly or the Oireachtas Committee. Most people have not been confronted with these issues, the evidence, and the consequences.
It would be a mistake for politicians who favour repeal to presume that the thinking of the Assembly or the Committee is obvious or easily discoverable.
I think that those who would vote to repeal the 8th Amendment may not all accept that the 12 week on-demand legalisation is the only and inevitable consequence of repeal. Some may, like Simon Coveney, wish to approach the issue in two stages – first repeal the ban on legislation; second let the Oireachtas formulate the laws dealing with the matter.
Making a vote to repeal into a vote to endorse the 12 week on-demand regime could be an unforced political error that tips the scales against repeal in a narrow contest. The two stage approach may be the wiser approach.
There is a danger that the experience of the marriage equality referendum justifies linking proposed legislation to the constitutional referendum. This referendum is, with respect, quite a deal more complex than the marriage equality referendum; compassion is a two way street on the subject of abortion.
Loss of the referendum would be politically catastrophic for the Government and for the Taoiseach and, I think, for the country. Today’s Sunday Business Post RedC poll should remind those in government that nothing is to be presumed or taken for granted.
I am not suggesting timidity; I am just counselling against presumption. I am suggesting that the pro-repeal vote is probably more complex and less unanimous in supporting the Government’s proposed legislation than some in Merrion St and Kildare St might think.
I suggest the immediate imperative is to get repeal over the line on the basis of maximising the repeal vote. The Oireachtas is there to legislate on this complex issues if, and only if, the people give it that role.
Let’s not rush our fences and come a cropper to a No vote swollen by political presumption.