Confused by the abortion amendment and the accompanying legislation? It's not your fault, writes Evelyn Mahon, it's the proposal itself
As the abortion debate has heated up the electorate is exposed to the many sides of the debate. While it is a pity that this debate did not take place in the Dáil, there was a general tendency to wait until the public debate began. The Irish electorate is a very intelligent and articulate one. By now it is one of the most knowledgeable electorates in Europe on abortion as a political issue. After all, this is the third referendum on abortion.
But the electorate is now described as "confused". Indeed, it is claimed that the billboards give them conflicting messages, which leads to further confusion.
As the electorate is requesting more information and clarity, the overall management of the referendum and of the Referendum Commission has been called into question.
As the decision is now in the hands of the voters, they need access to the necessary information to make an informed choice. Each household should have got a copy of the actual Bill, as this referendum is not a typical one.
The citizens are being asked to vote in a piece of constitutional legislation, so they need to know the details of that legislation. But they have not got the Bill. Why?
Some may say, "ah, the electorate would not understand it", the "legal jargon is off putting and confusing".
To this it must be replied that any bill the electorate has to vote on should be clearly written and accessible to the electorate. If the office of the Attorney General and/or the Referendum Commission are not prepared to do that, then we need a constitutional ombudsman. In particular, the role of this person should be to see that referendum proposals are valid ones, and framed in such as way that the electorate is clearly informed and know what it is voting on.
The question I now pose is whether or not this is a valid referendum? Is the electorate simply confused or is the referendum proposal itself confused? In fact, the electorate is correct in being confused because the proposal is invalid. Let me explain.
There are two major aspects to this proposal. The first is now clearly agreed: it is to roll back the X case judgment which permitted the termination of a pregnancy when the mother's life was endangered by the risk of suicide.
The electorate now know clearly that this is one part of the Bill. They have already voted on that before and rejected it, but are now being asked to vote on it once more.
However, the second aspect of the proposal is to give legislative support to medical practices that are already in place in hospitals.
Brian Lenihan, who chaired the sub committee on abortion, always said that if they held another referendum on the X case, then it would have to be accompanied by legislation.
The 1998 Medical Council guidelines state, in section 26.5, The Child in Utero: "The deliberate and intentional destruction of the unborn child is professional misconduct.
Should a child in utero suffer or lose its life as a side effect of standard medical treatment of the mother, then this is not unethical. Refusal by a doctor to treat a woman with a serious illness because she is pregnant would be grounds for complaint and could be considered professional misconduct."
I think the electorate generally expects that existing medical practice follows those procedures. It might be argued that a referendum is not needed to copper-fasten this in law.
One possible reason for a referendum is that members of the medical profession do not trust each other. Some doctors may fear that constitutional legislation is necessary to protect them from some of their colleagues and a minority of the public who hold that the rights of the unborn should take precedence over those of the mother.
They may be afraid that if they terminate a pregnancy for the life of the mother, some of their active colleagues will have them reprimanded by the courts.
The electorate is rightfully alarmed that such practices may be subject to such challenges. They want to protect the lives of pregnant mothers.
We know from the last referendum that the majority of the electorate approves of such medical practices and would, on balance, vote Yes to this part of the proposal.
The confusion arises when both of these separate proposals are put to the electorate - as a total package. The proposed referendum is what sociologists would call an invalid measurement instrument.
It puts two proposals before the electorate to which each member of the electorate might want to respond in different ways.
For example:
If we take the first issue referred to above, namely the "X case issue", the question is: "Do you agree that the Supreme Court ruling in the X case should be rolled back or negated?". A voter could vote either Yes or No to this proposal.
As regards the second issue referred to above, namely "the medical practice issue", the question is: "Do you think existing medical practices so that the mother's life is protected in cases where a pregnancy may have to be terminated to enable her to survive should be legalised in the State?"
A voter could vote Yes or No to this proposal.
However, when we put these two together we have a number of combinations:
A voter could vote Yes to both proposals: they agree that the X case decision should be rolled back and that women should have access to medical practices that will safeguard their lives - in other words, a Yes Yes vote.
A voter could vote No to the X case issue but vote Yes to the medical practices issue.
Finally, a voter could vote No to the X case issue and No to the medical practices issue.
However, each voter can only vote either Yes or No. They are not confused; they are correctly divided; the actual referendum as proposed is invalid.
The office of the Attorney General as protector of the Constitution should not have permitted this invalid proposal to go before the electorate. It may well be that the Attorney General may be compromised as a political appointee.
If that is the case, we may need an ombudsman for the Constitution.
Dr Evelyn Mahon is a senior lecturer in the Department of Sociology at Trinity College, Dublin. She was director and co-author of the Women and Crisis Pregnancy Study which the Government published in 1998