The Government's 1999 Green Paper on Abortion raised doubts over the constitutional status of the morning-after pill and the IUD, in direct conflict with the insistence by the Taoiseach and his Ministers this week that there are no such doubts.
The deputy leader of the Labour Party, Mr Brendan Howlin, yesterday drew attention to the conflict, claiming that the Government's position on the issue had now "completely collapsed".
The Green Paper stated that there was "some judicial support" for the proposition that the 1983 abortion amendment gave protection to the unborn from conception. It cited the 1988 case, Attorney General (SPUC) v Open Door Counselling, as giving this judicial support.
"Were such an interpretation to be formally confirmed," the Green Paper states, "it would appear to cast doubt over the legality of the use of post-coital contraception (the 'morning-after' pill and post-coital IUD)." The Green Paper was prepared by a committee which included the Attorney General, Mr Michael McDowell, although Mr McDowell became Attorney General during the course of the preparation of the Green Paper and was not involved throughout.
The Taoiseach said this week that Mr McDowell's advice was that there was no doubt at all over the constitutional status of the morning-after pill and the IUD.
Under further Dáil questioning yesterday, Mr Ahern stated: "I said yesterday morning that my advice from the Attorney General was to the effect that the morning-after pill was fully compatible with Article 40.3.3 of the Constitution and did not in any way infringe on the personal right to life of the unborn accorded by the article. The Government's strong and consistent legal advice is that the constitutional position of the morning-after pill is not open to doubt - that it is fully compatible with Article 40.3.3 of the Constitution."
Other Ministers have used exactly the same form of words to reject concerns over the current constitutional position.
The Minister for Health, Mr Martin, said on Wednesday: "The Government's legal advice is that the constitutional position of the morning-after pill is not open to doubt and that it is fully compatible with Article 40.3.3 [the 1983 amendment] of the Constitution."
The Taoiseach yesterday drew a distinction between the constitutional position of the morning-after pill - about which the Government and the Referendum Commission currently do not agree - and the position in criminal law. He acknowledged that while the Government currently believes there is no doubt over the constitutional position in relation to the morning-after pill, the commission believes that there is. However, both agree that, whatever the constitutional position, the result of the referendum will not change it, he said.
Mr Ahern told the Dáil yesterday that the proposed amendment was intended to address the criminal law governing the use of the morning-after pill. "The criminal law on abortion in Ireland can be found in the Offences Against the Person Act, 1861," he said.
In Britain, a legal challenge to that Act is under way, claiming that use of the morning-after pill amounts to abortion. However, Mr Ahern said that the passage of the referendum would automatically repeal the relevant sections of the Offences Against the Person Act. These sections would be replaced "with a definition of abortion which will prevent any case being made that the morning-after pill will be termed an abortifacient or subject to criminal sanction".
It was therefore "entirely correct" for the Government to say that the amendment "will clarify the legal status of the morning-after pill - that is the view of a number of eminent people".