Whatever constitutional/political crisis may now emerge on the abortion issue or in a future case is thoroughly deserved. Deserved not just by our politicians but by society at large. Fourteen years ago we voted into our Constitution a provision which stated: "The State acknowledges the right to life of the unborn child 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 laws to defend and vindicate that right."
This amendment implicitly called on the Oireachtas to enact laws which would accord the guarantee of respect and would vindicate the right to life of the unborn, subject to two conditions: (a) the equal right to life of the mother and (b) "as far as practicable". Given the ambiguity of the amendment and the clear conflict of interests involved, there was a special obligation on the Oireachtas to clear up the matter.
But nothing was done.
Then, in 1992, there came the inevitable crisis in the form of the X case. In that, one of the judges in the majority on the Supreme Court, the late Mr Justice Niall McCarthy, said:
"In the context of the eight years that have passed since the Amendment was adopted . . . the failure by the legislature to enact the appropriate legislation is no longer just unfortunate, it is inexcusable. What are pregnant women to do? What are the parents of a pregnant girl under age to do? What are the medical profession to do? They have no guidelines save what may be gleaned from the judgments in this case . . .
Is the victim of rape, statutory or otherwise, or the victim of incest finding herself pregnant to be assessed in a manner different from others? The Amendment, born of public disquiet, historically divisive of our people, guaranteeing in its laws to respect and by its laws to defend the right to life of the unborn, remains bare of legislative direction."
Following that case, the then Fianna Fail-Progressive Democrats government got its act together. The then minister for health, Dr John O'Connell, proposed a series of further constitutional amendments. One dealt with the right to travel, another with the right to information and the third with what is termed "the substantive issue". This read:
"It shall be unlawful to terminate the life of an 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 a real and substantial risk to her life, not being a risk of self-destruction."
Dr O'Connell stated, with the full approval of the Fianna Fail-Progressive Democrats government, that if this proposed amendment was defeated in the referendum in November 1992 the government would introduce legislation which would provide for a certification process, involving consultants in approved hospitals certifying that there was a real and substantial risk to the life of the mother which could not be resolved by any reasonable means other than the termination of pregnancy.
Where such a risk to life arose from the threatened suicide of the mother, he proposed that the consultants would include psychiatrists to assess the seriousness of the suicide threat.
The "substantive issue" was defeated in the November 1992 referendum, but instead of enacting the legislation that was promised the new Fianna Fail-Labour government refused to do anything. This was in spite of the explicit undertaking both parties gave in the November 1992 election campaign.
The new minister for health, Brendan Howlin, who had demanded "immediate" legislation in the aftermath of the X case in March 1992, sought to take credit for doing nothing about the "substantive" issue. There was an argument between him and Albert Reynolds over who first proposed in October 1994 to renege on the commitment both their parties had made in the November 1992 election.
The potential for confusion is even deeper than Mr Justice McCarthy said it was in his judgment 51/2 years ago. The judgments in the X case left open several issues to do with abortions that are legally permissible.
The most obvious of these issues concerns time limits. Several anti-abortion people argue that abortion is legally permissible here now, irrespective of time limits. The contention is ludicrous, for only in the most extreme cases is abortion permissible (where there is a real and substantial risk to the life of the mother) and, clearly, in such cases the question of time limits is irrelevant. Legislation could have cleared up this confusion.
What has happened on this front since November 1992, when the "substantive issue" amendment was defeated in the referendum, to suggest that the proposals made by Dr John O'Connell are no longer appropriate? If the O'Connell proposals constituted the official policy of the then Fianna Fail-Progressive Democrats government, what has happened in the meantime to justify a change of policy?
What is the need now for a Green Paper on the issue and for more consultation and debate and, no doubt, then a White Paper and further consultation and consideration, followed, inevitably, by - what?
The anti-abortion side continues to press for a new constitutional change on the "substantive issue". They insist that there are never any circumstances in which the right to life of the mother would be threatened directly by a continuation of pregnancy and that the Constitution should reflect this "reality".
But if this is so, what is wrong with the present position, whereby the right to life of the unborn is to be vindicated "as far as practicable" subject to the equal right to life of the mother? Do they want to remove "as far as practicable" with the explicit or implied substitution of "even as far as is impracticable"? And if the mother's right to life could never be threatened by a continuation of pregnancy, how, in present circumstances, could direct abortion ever be legally permissible?
But it is not just the politicians who behave irrationally on the issue. If we are so concerned about the right to life of the unborn, how was it that we were prepared (by a massive majority) to provide constitutionally for that right to be subverted by permitting people here to travel abroad to extinguish that right?
The fact is that we acknowledge intuitively that abortion is not morally wrong in all circumstances, but we are unwilling to sort out our thinking on the issue - in large part because of the intimidatory tactics of the anti-abortion side - to provide in our Constitution for the ambiguity which is at the heart of the abortion controversy.