Legislating on “life” issues – abortion or related matters like assisted human reproduction – has never been a priority for Dáil Éireann or our governments. No matter the remorseless trail to Britain, no matter the X cases or the Savitas ... The political class, until recently right across the spectrum, has been terrified of the toxicity of such issues even as attitudes evolved through time from outright hostility through nuanced tolerance to becoming strongly permissive of abortion in special cases – rape, incest or fatal foetal abnormality. Left to their own devices politicians would not touch it with a bargepole.
It took no less than an order from the European Court of Human Rights in the A, B and C v Ireland case for legislators finally, 30 years after the Eighth Amendment's passage, to give effect to its purpose in the the Protection of Life during Pregnancy Act 2013.
That reality puts the failure of Clare Daly's amendment to the Act in its proper context. Cover was provided for the Government by the Attorney General in her opinion that the amendment was unconstitutional, but in truth, even without such a convenient opinion, the Coalition had a political understanding that it had done its abortion business. Tánaiste Joan Burton reportedly told Labour TDs as much. Even Sinn Féin contrived to get itself off the hook with the excuse that it did not yet have a mandate on the issue from its conference – are we to assume that none of its TDs (perhaps we should call them delegates) will ever vote on an issue unless specifically mandated?
And what of that opinion? It is not necessary to believe that the AG was wrong to argue that the issue could properly be put before the Dáil. Only that there was a tenable case she was wrong. And, to borrow from the Government's own lawyers' reasoning in a 2006 ECHR case (D v Ireland – a claim for right to abortion by a mother with an anencephalic foetus) there is "'at least a tenable argument which would be seriously considered by the domestic courts to the effect that the foetus was not an 'unborn' for the purposes of Article 40.3.3 ... In the absence of a domestic decision, it was impossible to foresee that Article 40.3.3 clearly excluded an abortion in the applicant's situation in Ireland."
Other case law, notably a December case when the Health Service Executive asked if it could end life support to a brain-dead pregnant woman without breaching the Constitution, tends also, at the very least, to raise doubts about the AG’s view. The court said it could do so because there was virtually no chance of her baby being born alive.
Without certainty, which the AG can not provide, there is constitutional provision for referral of a Bill to the Supreme Court by the President and Council of State. The Dáil should not lightly accept the pre-emptive stymying of its legislative prerogative on the basis of an arguable opinion.