The amendment rolls back the Supreme Court decision in the X case, argues William Binchy while Peter Finlay SC, a supporter of the Lawyers Against the Amendment group says the ammendment is anti-democratic.
The referendum proposals are to be welcomed by all who wish to see the law restore full protection for the rights of pregnant mothers and their unborn children.
Voters now have a measure before them that reverses the Supreme Court decision of 1992 and brings our law into harmony once more with medical practice.
A Yes will ensure that the legislation contained in the measure, if enacted by the Oireachtas within 180 days of the passage of the referendum, will have two qualities.
First, it will be given the guarantee of constitutional validity, so that no court, however adventurous, can strike it down.
Second, the legislation can be amended in the future only if the voters are consulted and approve of the change.
This latter assurance is particularly welcome when one bears in mind that the policy of some smaller political parties, joined now, sadly, by the Labour Party, is to seek to introduce legalised abortion on demand.
The measure now before the voters defines what is abortion and what is not.
It gives legal protection to medical treatment of mothers during pregnancy and has already received the support of the Institute of Obstetricians and Gynaecologists.
It is based on what the Masters of the maternity hospitals told the Oireachtas Committee and meets all of the medical needs of obstetricians.
The Supreme Court decision, based on no psychiatric evidence, established suicidal ideation as a ground for abortion. The present measure reverses this approach, reflecting the clear evidence of the psychiatrists before the Oireachtas Committee.
The psychiatrists referred the committee to research which shows that women who have had an abortion are six times more likely to commit suicide than women who have not.
Prof Anthony Clare mentioned that in Bermuda, where the law was changed to provide for suicidal ideation as a ground for abortion, the psychiatric profession was "hopelessly compromised".
The dangers of putting improper pressures on the medical profession by a change in abortion law is real.
In Britain, the Abortion Act 1967 permitted abortion on a medical ground - physical or mental health - which very quickly became a system of abortion on demand based on the signatures of doctors often empty of any medical truth.
Under the measure contained in the referendum proposal, the Minister for Health is given the responsibility, subject to the scrutiny of the Oireachtas, of identifying approved places suitable for the purposes of Section 1 of the legislation.
This provision is for the protection of mothers and their unborn children and was advocated by doctors during the Oireachtas Committee hearings The Institute of Obstetricians and Gynecologists has given the provision its support.
Its scope is determined in the light of best medical practice and on the basis of the advice of those who care for women during pregnancy.
The measure deals only with abortion and thus does not alter the existing legal position relating to the protection of unborn life outside the womb.
The recent changes in science and in reproductive technology have been staggering.
Some of them have been truly wonderful; others are deeply violative of human dignity and equality.
There is an uneasy apprehension in our society - and, indeed, in most societies - about the possibility of human cloning and the commodification of human beings.
As a matter of some urgency, we need thoughtful legislation dealing with the protection of early human life in this new scientific environment.
Scientists tend to be conscientious people but they are not gods and they need the guidance of a well considered legal framework which respects human values.
Passage of the measure now before the voters will provide a framework of principles that can act as an inspiration to develop good legislation for the protection of the unborn in this new technological world.
Let us consider for a moment what would be the position if the referendum were to be defeated. There would be immediate strong political pressure to implement by legislation the Supreme Court decision.
It permits abortion at any stage during pregnancy, without requiring expert medical evidence. This is not a sound or just basis on which to construct legislation.
It is not clear from the decision what would be the position where a child survived an abortion.
This does happen from time to time.
In Britain, three conflicting positions have found support at different times. One is that the person carrying out the abortion should try hard to keep the child alive.
Another is that he should simply let the child die.
The third is that he is not prevented by law from taking active steps to complete the process of terminating the life of the child.
These are awesome choices which are inherent in the philosophy of the right to choose abortion.
The devaluation of human equality and dignity involved must cause people of goodwill to reflect about the wisdom of going down that path.
This is an important referendum, with real consequences for our society.
A Yes vote will bring the law back into harmony with medical practice, medical ethics and human rights.
William Binchy is a professor of law at Trinity College Dublin, and a supporter of the Yes campaign.
- The proposed constitutional abortion amendment is anti-democratic and seeks to nullify the role of the Oireachtas and the President, suggests Peter Finlay.
The proposed amendment of the Constitution discloses a fundamentally ambiguous attitude towards the democratic institutions of the State. Leaving aside the substantive question the mechanism contained in the present proposal, so inelegantly drafted and riven with cumbersome legalese requires further scrutiny.
The purported Bill containing the amendment could be described as an Act in two parts or a Bill with two Acts, whichever you prefer. The first part contains the proposal to amend Article 40 of the Constitution by inserting two additional sub-articles after the existing Article 40.3.
The second part contains a piece of legislation which will be deemed to have been passed by the people and inserted into the Constitution if the referendum is carried. It is not insignificant that no previous government has seen the need to incorporate legislation into our Constitution. As a country we have survived a civil war, an economic war with our nearest neighbour, a national emergency and 30 years of sectarian war on our island without feeling the need to legislate by any means other than through our democratically elected national parliament.
This proposal seeks to place into the Constitution a piece of legislation to outlaw abortion for women in certain circumstances. However, in doing so it is asking the people to suspend the function of the Oireachtas to make legislation as required by Article 15.2.1 which states: "the sole and exclusive power of making laws for the State is hereby vested in the Oireachtas; no other legislative authority has power to make laws for the State".
There are very few circumstances in which an interference with the democratic process could be justified. Since the X case in 1992 there is no evidence that young women have cluttered the corridors of psychiatric hospitals in desperate attempts to obtain abortions or put pressure on psychiatrists to write dubious medical reports to assist them. Once this proposal goes to the people our parliament will be obliged to pass it within 180 days or else the whole proposal fails. The members of the Oireachtas will not have any power to make amendments to the Human Life and Pregnancy Act, 2002, contained in a schedule at the back of the proposal. The problem is not answered by saying that the will of the people carried in a referendum can lawfully supplant the democratic function of an elected representative carrying out his constitutional function. If that were the case then any government in the future will be entitled to suspend our parliament on the pretext that the democratically elected representatives could not be trusted to carry out the will of the people. Thankfully, there is no evidence in this country that our elected representatives have ever behaved in such a manner.
There can be no objection to seeking the will of the people on a proposal to amend the Constitution per se, but the legislative framework to give effect to such an amendment once carried is the exclusive function of the elected representatives themselves. It forms an integral part of the necessary checks and balances of our democratic state.
Equally, our government has for many years urged all parties to the northern peace process to believe in the newly created democratic institutions created under the Belfast Agreement. It now appears that they have done so while simultaneously harbouring a deep seated belief that it is possible to circumvent such institutions whenever they become unmanageable or difficult to control.
Precedent has been set. The truth is no Constitution should be made to achieve the impossible. This proposal also includes the removal of the President's power to refer the attached legislation to the Supreme Court for a ruling on any provision of the legislation that may be considered repugnant to the Constitution. By suspending the power of the President to refer legislation to the Supreme Court this proposal simultaneously attacks not only the office of the President but also the democratic and constitutional function of the Supreme Court. Such a state of affairs is prompted in order to exclude a suicidal girl from having an abortion where she may have been raped. It seems a high price to pay for such a sorry objective. At the end of the day we all know that the seven thousand women who travel annually from Ireland will continue to do so relying on their constitutional right to travel guaranteed by Article 40.3.
And if that doesn't persuade anyone to vote no then ponder the "inadvertent consequences" (Willie O'Dea, Prime Time, February 14th 2002) of the 1998 amendment to Article 2 of the Constitution. Apropos the problem of non-EU women arriving late in pregnancy at Dublin maternity hospitals so that their Irish born babies will become Irish citizens the Minister for Justice believes that a referendum will be required to amend what he considers to be a new constitutional entitlement to citizenship now contained in Article 2. (Hitherto it had been a statutory right in the 1956 Citizenship Act which could have been amended by legislation). But a referendum on Article 2 might not be so easy since the insertion of the new Article 2 into the Constitution was a condition precedent of the coming into effect of the Belfast Agreement. That treaty would have to be unravelled before any referendum could even be considered on the issue. So the 1998 amendment to Article 2 of the Constitution is seriously flawed. The Nice referendum failed last June. One might ask is the government heading for three in a row.
In conclusion, the arrogance of these proposals is breathtaking given our experience of the abortion issue in the past. At this stage we should be prepared to say enough is enough and leave well enough alone in the Constitution. I say no at the end of the day when the government is prepared from within to ride roughshod over the democratic institutions of the State thus losing the moral authority to complain when others threaten to do so from without. This ambivalence towards the cornerstones of our democratic state should disappoint us and persuade us all to vote no to what they propose.
Peter Finlay SC is a supporter of the Lawyers Against the Amendment group.