Analysis: The referendum is but the latest attempt to resolve a constitutional mess which began 18 years ago, reports Mark Brennock, Political Correspondent
Last Wednesday, in the Constitution Room of the Shelbourne Hotel in Dublin, the Taoiseach launched his party's latest abortion amendment campaign. No doubt Fianna Fáil was keen to make a symbolic association by using the room in which the Free State Constitution was drafted in 1922.
But the more relevant historical link was with summer 1983, when the Pro-Life Amendment Campaign used the same room to launch the first campaign to amend the Constitution on abortion. Back then, the Pro-Life representatives in the packed room argued that there were no "hard cases" in which abortion was necessary.
Journalists present listed various hard cases: the answer to all was no, no exceptions. "In the past," said Minister for Health Micheál Martin in the Constitution Room last week, "when it came to abortion, we all had easy, angry certainties. That was before the X case, before the C case." Now, he maintained, the abortion issue would no longer be addressed "through the harsh condemning certainties of the past".
This latest referendum is happening because of the personal determination of Bertie Ahern. He was driven by the political pressure exerted by the four pro-Government Independents, some of his own backbenchers, and his own strong personal anti-abortion views. He is making the latest attempt to resolve an 18-year-old constitutional mess.
Under the 1861 Offences Against the Person Act, inherited from Britain in 1922, abortion has always been illegal in Ireland. However, when small, vocal right-to-choose organisations emerged in the early 1980s, opponents of abortion did not accept that this 1861 Act was sufficient to meet what they saw as a threat of change.
They insisted on a constitutional prohibition which would ensure that abortion could not be legalised in Ireland without another referendum. The Fianna Fáil and Fine Gael leaders agreed very quickly to hold a referendum, mindful of the overwhelming public opposition to abortion and the danger of appearing to prevaricate. However, against the advice of the Attorney General of the day, Peter Sutherland, the anti-abortion campaigners insisted on their wording to express the ban. Eventually, the Fianna Fáil wording, which had the support of PLAC, was adopted. Mr Sutherland had warned, in vain, that this wording could lead to the introduction of abortion.
The referendum on the Eighth Amendment to the Constitution was carried by a two-to-one majority in September 1983. The new amendment, which became Article 40.3.3. of the Constitution, stated: "The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect and, as far as practicable, by its law to defend and vindicate that right."
Having won the referendum victory, anti-abortion campaigners began a long campaign in the courts to see the practical implementation of the 1983 amendment. The Society for the Protection of Unborn Children successfully sued Open Line Counselling and the Well Woman Clinic, both of which counselled pregnant women and referred those who wished to Britain for abortions.
In September 1988, the students' unions of Trinity College and UCD were similarly sued for information contained in their handbooks. Although SPUC lost in the High Court, it won on appeal to the Supreme Court, although by then the case had been referred to Europe.
Anti-abortion campaigners were also concerned about the effect membership of the European Community (as it then was) would have on the abortion regime in Ireland. In 1991, they successfully lobbied the government to have a protocol inserted into the Maastricht Treaty protecting the 1983 amendment from any future impact of European law.
But before the Maastricht referendum came the X case, which threw what anti-abortion campaigners thought was a watertight abortion ban into disarray. The X case concerned a 14-year-old girl who had become pregnant as a result of rape by a family friend. She was suicidal, and her family wanted her to have an abortion. The then attorney general, Harry Whelehan, sought and obtained a High Court injunction restraining her from travelling to Britain to end her pregnancy.
However, giving judgment on an appeal, the Supreme Court concluded that: "If it is established as a matter of probability that there is a real and substantial risk to the life of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible, having regard to the true interpretation of Article 40.3.3." The implications of this judgment were that, where the life of the mother was in danger, including from a threat of suicide, abortion was permissible in Ireland under the Constitution.
The Pro-Life Campaign quickly received Government agreement to put another constitutional amendment, this time explicitly excluding the risk of suicide as a ground for abortion. The proposed amendment stated: "It will be unlawful to terminate the life of the unborn unless such termination is necessary to save the life, as distinct from the health, of the mother where there is an illness or disorder of the mother giving rise to real and substantial risk to her life, not being a risk of self-destruction."
However, with conservatives saying this was too liberal, and liberals seeing it as too conservative, it was rejected by the electorate in November 1992. The electorate approved two other amendments stating that the Eighth Amendment did not mean the prevention of travel to another state, or the provision of information about services legally available in another state, such as abortion.
The 1992 referendum was followed by legislation spelling out the right to abortion information. This led to another raft of court cases, where the clinics and students' unions successfully sought the restoration of their right to provide this information.
The Pro-Life Campaign set about lobbying at political level for yet another referendum. A more vocal anti-abortion group - Youth Defence - became involved in more direct action, picketing various politicians' homes and using graphic posters and images of aborted foetuses to make their point. It was this parting within the anti-abortion movement that paved the way for the current referendum, leading the Taoiseach to believe that he could win support from a substantial section of the anti-abortion movement for a referendum similar to that which was rejected in 1992.
Prior to the 1997 election, Mr Ahern outlined his preferred option for dealing with the abortion issue. He accepted the argument that short clauses in the Constitution had not proved adequate to deal with the issue. He suggested that legislation could be introduced, but put to the people under an unused and little-noticed mechanism contained in Article 27 of the Constitution.
In 1997, too, came the C case, in which a girl in the care of a health board was allowed by the Supreme Court to travel to the UK for an abortion only because she was suicidal.
The political imperative to hold another referendum became stronger in 1997 after it became clear that Mr Ahern's Fianna Fáil/Progressive Democrat Coalition would rely on four Independent deputies for support, and that these had another abortion referendum as a central aim.
In 1998, the Government began a lengthy process through which the abortion issue was considered. A Government sub-committee produced a Green Paper, laying out seven options ranging from an absolute constitutional ban on abortion to legislating for abortion on demand. These options were narrowed down to three by the Oireachtas All-Party Committee on the Constitution, chaired by Brian Lenihan TD, after it received a large number of submissions from medical, legal and campaigning groups as well as from many individuals.
The Government has chosen the option of holding a referendum to give constitutional backing for legislation rolling back the X case decision allowing the risk of suicide as a ground for abortion, outlawing abortion except according to current medical practice where a mother's life is at risk, and allowing for the morning-after pill. It is this proposition that will be put to the people on March 6th.