The Yes and No campaigns for the abortion referendum have been launched. Evelyn Mahon traces the legal twists and turns that have once again brought this issue before the electorate
The Taoiseach has rightfully claimed that the Irish are mature enough for a calm debate on abortion. Indeed, few countries have debated the issue so seriously.
The 1983 amendment states: "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."
But in 1991 we witnessed the X case. X was a 14-year-old schoolgirl who was pregnant as a result of rape by a family friend. Her parents had arranged an abortion and wanted to procure foetal evidence to use in prosecuting the rapist. But she had been restrained from leaving the jurisdiction by the High Court in a response to an application for an injunction by the Attorney General.
Her parents appealed to the Supreme Court, which decided that X could go abroad for an abortion. Interpreting the constitutional amendment, it concluded: "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 X case afforded the Irish public the first opportunity to discuss abortion as embedded in social reality. However, there was opposition to this decision, and in 1992 we were asked to vote on another amendment which would specifically exclude the risk of suicide as grounds for abortion.
"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." This was rejected by the electorate.
But the electorate approved two other amendments. One was on information and read: "This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state."
The second concerned travel: "This subsection shall not limit freedom to travel between the State and another State."
Subsequently the Information on Termination of Pregnancy Act (1995) was introduced, and for the first time Irish women could legally discuss a crisis pregnancy with their doctors and/or counsellors and receive information on abortion services in Britain.
In 1995 the minister for health, Michael Noonan, commissioned the Women and Crisis Pregnancy study, which was published in 1998. This showed that abortion was part of Irish women's lives.
In 1995, 8.5 per cent of all conceptions among Irish women were terminated. More specifically, 25 per cent of non-marital conceptions and 2 per cent of marital conceptions were aborted. It also exposed an unpalatable truth about abortion: that the majority of abortions obtained by Irish women could not be covered by limited or restrictive legislation.
In 1998 Fianna Fáil asked a Civil Service committee to produce a Green Paper on abortion. They invited submissions from interest groups. This clearly written and comprehensive document was published in 1999. It addressed the legal and political context of abortion in Ireland; described the grounds for legal abortion in other countries; summarised the submissions received by the working group; and drew on the social context of abortion as revealed in the Crisis Pregnancy study.
In chapter 7, the Green Paper also outlined seven possible constitutional and legislative approaches to abortion. They were:
1) absolute constitutional law on abortion.
2) an amendment to the Constitution so as to restrict the application of the X case.
3) retention of the status quo.
4) retention of the constitutional status quo with legislative restatement of the prohibition on abortion.
5) legislation to regulate abortion in circumstances defined in the X case.
6) reversion to the 1983 position.
7) permitting abortion on grounds beyond those specified in the X case, with options ranging from a restrictive system to an abortion-on-request system.
As can be seen, the possibilities covered the entire spectrum from an absolute constitutional ban to abortion on demand.
The government's response to this was to set up an all-party Oireachtas committee to discuss abortion, chaired by Brian Lenihan. Once more they invited submissions, this time on the Green Paper. The proceedings of that committee are published in another excellent document, The Fifth Progress Report on the Constitution: Abortion, which contains in the appendices all of the transcripts of the public hearings.
The key outcome of that democratic process can be read in chapter 7, the views of the committee (pages 113-120). All members agreed that crisis pregnancy should be sympathetically addressed and recommended the setting up of the Crisis Pregnancy Agency.
However, they failed to reach a consensus on the "substantive issue" of what to do legally about abortion. Instead, three approaches emerged.
While they were not described as party positions in the report, they closely resemble the pre-referendum positions taken up by the main parties.
THE first approach adopted by the Oireachtas subcommittee was to retain the status quo: the interpretation of the Supreme Court would be upheld and any further X- or C-type cases would have access to abortion in England. Abortion would not be recriminalised, and counselling and support services would continue to be available to women. This position did not suggest any legislation and is in effect option 3 of the seven in the Green Paper. This represents the position now being taken by Fine Gael.
The second approach was to legislate and regulate abortion within the ambit of the existing constitutional framework, with the Supreme Court's interpretation of the X case. It would give equal importance to psychiatric as to biological threats to the mother's life. This is the position adopted by the Labour Party and is option 5 in the Green Paper.
The third approach was to "restate in strong terms the prohibition on abortion in Ireland, while at the same time protecting medical practice. Defences based on social, psychological or psychiatric grounds (including suicide) would be prohibited" (p. 120). This is the approach taken by the Government. It is planned "to row back on the Supreme Court judgment on the suicide issue", as stated by the Taoiseach.
The 25th amendment Bill would insert the following: "Notwithstanding the foregoing provisions of this Article, Article 40 of the Constitution shall be amended as follows: In particular, the life of the unborn in the womb shall be protected in accordance with the provisions of the Protection of Human Life in Pregnancy Act, 2002."
On page 8 of the Bill, it stipulates that no person shall carry out or effect an abortion in the State, and any person who does may be liable to imprisonment for a term not exceeding 12 years.
The legislation proposed is therefore between options 1 and 2 as outlined in the Green Paper.
The referendum will be held on March 6th, and the electorate will once more be asked for their views. However, they are not being offered three options.
Because there was not all-party agreement, a coalition of Fianna Fáil, the Progressive Democrats and some Independents are putting their approach to the electorate.
They are giving the electorate the chance to say Yes or No to an amendment which, if passed, would "row back" the Supreme Court ruling and remove the constitutional protection the Irish Supreme Court has accorded to the life of the suicidal pregnant mother.
In addition, the referendum would introduce a law making abortion a criminal offence carrying a 12-year sentence.
This would be inscribed in a constitutional law which could only be amended by another referendum.
This amendment would restrict the right to life of some pregnant mothers whose lives are currently protected by the Constitution. Secondly, the recriminalisation of abortion could surely have repercussions on crisis pregnancy information and counselling, and on post-abortion counselling, and might make women with crisis pregnancies even more reluctant to seek counselling in Ireland.
Dr Evelyn Mahon works with the Department of Sociology at Trinity College Dublin