Legislation is virtually impossible to frame. One vote per ballot box. That's what it would have taken to pass the referendum proposal. Or, to put it another way, if every pro-life No had been cast as a Yes, we would have had an entirely different result.
No-one who voted Yes did so because they wanted legislation on foot of the X case. Combine that with those who voted No because in their minds the proposal did not offer enough protection to the pre-implantation embryo, and you still have an anti-abortion majority in this country. Only just, mind you, but still real.
Of course, pro-choice activists are proclaiming that the Irish people have twice rejected the rolling back of the X case. They remind me of those stalwarts from the heyday of the Iron Curtain who airbrushed out of official photographs those who had fallen from grace. It is horribly embarrassing to have been on the same side as Dana and Justin Barrett, and doubly galling that they would not have defeated the proposal without them. So let's airbrush them out and pretend that this is an absolutely clear message from the Irish electorate.
Odd, that. Just a few days ago the same people were decrying the confusion generated by this proposal, and advocating that if in doubt, vote No. Suddenly in place of confusion we have clarity; instead of complexity, simplicity.
Except that it is not simple at all. Gerard Hogan, a law lecturer in Trinity College, declared on Thursday that it would be well-nigh impossible to draft legislation which would survive constitutional challenge and at the same time muster some degree of consensus. He described it as a legal porcupine bristling with difficulties. That might explain why the Opposition parties are suddenly talking about widespread consultation with a variety of groups.
Talking, in fact, in exactly the same kind of language as Fianna Fáil did before initiating the process of the Green Paper and the All-Party Oireachtas Committee. Except that Fianna Fáil's initiative produced one of the finest reports ever to come from the Oireachtas. They then came up with a positive proposal and allowed people to vote on it. We will have no opportunity to vote on legislation for abortion.
The Opposition had been feeding the electorate airy assurances which would make you believe that they were talking about legislating for disc-parking violations rather than matters of life and death. They knew all along that the complexities involved in legislation will make this referendum look straightforward. They were allowed to get away with that by a media which never harried them the way it did the Yes side.
Take the question of time limits on abortion. X has none. Liz McManus has been suggesting that 14 weeks' gestation as suggested by T.K. Whitaker might be a good cut-off point. Let's forget for a minute that T.K. Whitaker told the Oireachtas Committee that he had picked up from the medical literature that this was the point before which a foetus becomes viable. (This, of course, is inaccurate. Even at 22 weeks, the odds of survival are tiny.)
The most important point is that following X, a suicidal woman is entitled to an abortion. Because the principle of the unborn child's right to life has been sacrificed in the case of suicide there is no compelling reason to distinguish between 14 weeks and 16 weeks, or 24 weeks. Or even later.
We have already had a repeat of X and C, but the sad thing is that its positive outcome was virtually ignored. A 15-year-old girl was brought into hospital. She had taken an overdose because she was pregnant. She was given proper psychiatric treatment, and after a short while her suicidal tendencies passed, and she and her child are now doing well. This is as it should be. But it does not suit the pro-choice advocates, because this was never about suicidal women. Scarcely had the rubber band been snapped around the last vote than the pro-choice groups were calling for legislation on the grounds of suicide to be followed rapidly by the removal of Article 40:3: 3 and for abortion to be available on much wider grounds.
In most serious cases of threatened suicide the patient is hospitalised, because it would be negligent if somebody was left in a situation where they might harm themselves. It would seem entirely reasonable, then, to legislate that anybody seeking abortion on these grounds should be hospitalised and that it should be shown that all available treatments had been tried. Can you imagine the pro-choice groups accepting that ? It is further proof that this was never about suicidal women in the first place. This has been about negating the rights of the unborn child and exposing women to a potentially harmful procedure, abortion, which carries with it its own risk of serious depression.
Suppose that a mandatory stay in hospital were legislated for, along with certification that all medical treatments had been tried. This sets limits far more restrictive than X, which did not even call medical witnesses, much less explore medical treatment. Such legislation could therefore be found unconstitutional.
The only faint consolation is that the bluff of the political parties will be called regarding reducing the numbers seeking abortion. Fine Gael's record is far from admirable on this. In 1995, Michael Noonan protested strenuously that legislation for abortion information would reduce the numbers. They have virtually doubled since. Let us hope initiatives to reduce the numbers will be less disastrous. The only way to do it is to set targets for the Crisis Pregnancy Agency and to review them on a yearly basis. If it is not working, try something else.
And listen to organisations like Cura, who see 12,000 women a year. That's not a figure you hear bandied about too often. Again, it does not fit the stereotype, that an organisation set up by the Irish bishops does far more for women in crisis pregnancy than any of the politicians or pro-choice advocates spouting about the needs of women.
The way forward is to work to build a society where Irish women having abortions anywhere, including Britain, is rare. Let us hope that the impetus to do this has not been damaged irreparably by the No vote.