The abortion debate has been raging for weeks and tomorrow, the people will give judgment on the Government's proposals. Evelyn Mahon distils some of the major issues of the campaign from both points of view and indicates her own preference
When this referendum campaign began we had two opposing groups: anti-abortion Yes supporters and pro-choice No supporters. Now they are roughly equal in size, so as some journalists put it, "it is all to play for". How has it become such a cliff-hanger?
When initially presented to the electorate, the Bill seemed to have much in its favour. For the first time the Government recognised publicly that pregnancy could be life threatening for women. It was revealed that gynaecologists were prepared to carry out procedures which would terminate pregnancies to save the lives of mothers. However, they needed statutory protection and the legislation that accompanied this referendum was providing that. So many who might have initially voted either Yes or No had to consider the Bill more closely.
Put simply there were two main parts to the proposed amendment: (1) a legislative aspect to permit medical procedures and (2) a constitutional change that would overturn the X case interpretation.
Not surprisingly most of the electorate wanted to support the legislative aspect. Had the electorate been presented with this on its own, it would have got considerable support. Everyone wants to protect the lives of pregnant mothers and (if possible) their babies in the context of best medical practices.
Anti-abortion organisations whose original motivation in calling for this referendum was to overturn the X case ruling, have been to the fore in putting the legislative aspect of this proposed constitutional change positively: it is being introduced to safeguard the lives of pregnant mothers and their babies. Who could possibly oppose such a proposal?
Yet as the campaign unfolded, it became obvious that not all the electorate were convinced. At the beginning of the campaign, there was an initial disagreement among the anti-abortion groups who had been calling on the Government to hold a referendum to overturn the X case judgment.
Dana and Youth Defence would have been expected to want to see the X case overturned, but Dana could not support the Bill. She was concerned that if the referendum was passed we would have legislation on abortion. More particularly, she realised that this legislation would only protect foetal life from the time of implantation rather than from conception. She feared that this would clear the way constitutionally for the destruction of embryos in assisted human reproduction. She thinks they should have constitutional protection.
Members of the Hierarchy have tried to convince her to take the view adopted by Prof William Binchy and others who say that this is "a battle for another day", but Dana remains unconvinced. This crucial legislative distinction between conception and implantation is also central to the debate on the morning-after pill and the IUDs.
If such legislative protection for the pill and IUDs had been included, it would have garnered more support for the Bill from other sections of the electorate (pro-choice), albeit by simultaneously losing support among the anti-abortion electorate.
Remember too, that if the majority vote Yes tomorrow, for the first time we will have legislation on abortion in Ireland. We will have a definition of abortion, specific legislation on the protection of human life post-implantation in the womb and the criminalisation of anyone who carries out or attempts abortion outside these parameters in Ireland.
So it must be recognised that future statutory protection for the pill and IUD may be influenced by the outcome of the vote. We do not know until the courts have an opportunity to adjudicate on it, taking into account the new legislation.What about the substantial issue of abortion? Will this referendum if passed permit abortions in very limited restricted circumstances?
The referendum commission's advertisements say it will. In Britain, these proposed medical procedures would be called abortions, but they would be distinguished from other abortions there on the "grounds" on which abortion is permitted. In Britain, they would be categorised under ground F, "to protect the life of the mother". But the definition of abortion in the Irish Bill is such as to exclude these medical procedures so they are not abortions in Ireland. If they were called abortions in the Bill, it would not have got the support of the anti-abortion groups.
In this context of such competing discourses, the press conference by the three Masters of Dublin's main maternity hospitals was especially interesting as it coincided with the case outlined in a letter to The Irish Times by Deirdre De Barra.
They conceded that, being pregnant with a child whose life was not viable outside the womb, she should have been able to have an abortion in Ireland. It was yet another difficult but different case. This was not the first time one of these gynaecologists had argued for abortion in such circumstances. Such a case had been raised in his oral submission to the Oireachtas sub-committee, but it was not taken on board. While the Masters' press conference was presented as being in support of the proposed legislation, it also revealed that gynaecologists, like the public, had come a long way on the substantive issue.
The constitutional aspect of the Bill centres on overturning the X case judgment. This is still the most pivotal and divisive aspect of this Bill. Prof Patricia Casey was both an advocate and an expert witness to this aspect. While her anti-abortion arguments were convincing, her empirical evidence was discredited by other psychiatrists.
In one way the relationship between suicide and abortion is not the real issue which makes the X case judgment so contentious, especially for those who do not want to see that ruling overturned. The X case judgment could be removed in this referendum because if retained, it could provide the basis for a liberal abortion regime in Ireland. This is why the bishops have described this referendum as an opportunity not to be lost.
But have we forgotten that the X case judgment would never have come about had not church and anti-abortion advocates inserted Article 40.3.3 into the Constitution in the first place? While the unanticipated liberal potential of that was seen in the X case judgments, the present political campaign had tried to persuade sections of the electorate that they had more to gain by voting in these medical procedures than they had to lose by overturning the X case decision.
The crux of the choice facing the electorate now is that some who are in favour of these medical practices are being asked to "cross the line" and remove the X case,which was the first pro-woman interpretation of the 1983 amendment. This is an amendment against which many women actively campaigned in 1982, an amendment which was then inserted to preclude the possibility of any form of legislation on abortion in Ireland. Before the X case ruling, many of the groups at present calling for a No vote would have been asking for the removal of Article 40.3.3. One of the most remarkable features of this campaign is that neither side of the debate has called for this. Why not?
While the X case interpretation of Article 40.3.3 reduced its merits in the eyes of those who proposed it, it increased its support among those who opposed it. The latter began to appreciate the legal constitutional protection it gives to women so they are no longer calling for its removal. It is now part of what we are.
It is because of that amendment and its interpretation by the courts that the "medical procedures" (or abortions) can be even proposed now. Article 40.3.3 coupled with the X and C case judgments have given public support for abortions in very rare and difficult circumstances. So they also underwrite public support for the medical practices proposed in this legislation.
Our present constitutional package (the status quo) has acted as both protector against and an obstacle to the introduction of abortion in Ireland except under the most restrictive circumstances, just as a good Constitution should do. This constitutional package with its restrictions on abortion has also facilitated a consensus among the politicians and the public that crisis pregnancy, single motherhood, adoption and abortion need to be addressed in a different way to other countries who do not have our Constitution.
Ministers have argued that if we do not overturn the X case judgment, we will have a liberal abortion regime here, but there is at least one alternative trajectory they might consider. If the X case judgment is overturned, the next referendum campaign may well be to remove Article 40.3.3 completely.
I want to say Yes to the medical procedures and No to overturning the X case ruling, but I cannot do that because principle and practice have been intertwined in an invalid manner. Dana wants to vote No to the medical practices but Yes to overturning the X case ruling. There are many others who will similarly find themselves placed between a rock and a hard place, but this is an inevitable outcome of pursuing a clever and divisive political strategy to solve a very difficult moral issue.
Nobody thought it would end up like this. Whatever the outcome of the referendum - and this will depend on how those who at present feel compromised will vote or whether they vote at all - our discussion on reproduction, motherhood and abortion will never be the same as it was before this referendum campaign.
We will have all moved on.
• Dr Evelyn Mahon is a senior lecturer in sociology at Trinity College Dublin, and was director and co-author of the Women and Crisis Pregnancy study