The politicians’ ‘gutless’ failure to legislate on abortion is no longer acceptable
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The political message of protestors on Kildare Street on Wednesday night last was clear: Irish abortion policy is a shambles, and the blame for that shambles rests at the gates of Leinster House.
Whatever the outcome of investigations into the circumstances that led to the death of Savita Halappanavar in University College Hospital Galway, the failure of successive governments since 1983 to legislate on abortion is no longer acceptable. The problem is not just that all parties, and party leaders, shied away from legislating following the 1992 X case ruling. As highlighted by the judge in that case, nine years after the constitutional amendment guaranteeing the right to life of the unborn, there was no legislative framework to provide it with meaning or effect. So it’s not twenty years of inaction we have to complain of. More like, thirty years on, as a result of political cowardice, appaling uncertainty persists. Inevitably, and tragically, a case would arise which would light a fire under the pusillanimity of our political elite.
The original mistake of party political leadership was to proceed with the abortion referendum in 1983. There was no great popular demand for such an amendment; no cases before the courts that impelled it; no imminent prospect of any event that might force a change in Ireland’s existing abortion law. Moreover , the political class in general had little or no understanding of the issues involved. A cursory review of the Oireacthas debates at the time confirms that. The 1983 Dail debates were laced with vitriol, moral grand- standing and party political posturing, but principally notable for their confusion and lamentable ignorance of the complexity of the issues at stake.
Two years earlier, in April 1991, the so-called pro-life movement had targeted the leaders of the two main parties, C.J Haughey of Fianna Fail and Garret Fitzgerald of Fine Gael. Promises were extracted from both leaders to introduce a pro-life amendment to the Constitution at the earliest opportunity. Otherwise, Ireland was on the road to ruin, to a regime of ‘abortion on demand’. Sooner, rather than later, the 1861 Offences against the Person Act, which prohibited abortion, would be challenged in the courts. Or else those dreadful Europeans, in one guise or another, would force abortion upon us. Only a constitutional ‘right to life’ for the unborn could forestall the inevitable. At that point, some 4,000 Irish women a year were travelling to the UK for abortions.
The early 1980s were a period of political turmoil, which saw several rapid changes of government. No less than three Attorney Generals wrestled with the task of framing an acceptable wording for the proposed amendment. In the ferment of the 1982 general election, further promises were made to the pro-life lobby by Haughey and Fitzgerald that, whatever government was formed, the constitutional amendment would be put to the people before the end of March 1983. When Fine Gael was returned to office with the Labour Party, the Attorney General, Peter Sutherland, considered the wording on offer from the previous administration. He concluded that it was deeply flawed.
With the alarm bells ringing, Deputy Alan Shatter presciently told the Dail on 17 February 1983, “ I have no doubt that if [the amendment] in its present form becomes part of our Constitution it will essentially secure a constitutional judgment in the not too distant future requiring the House to enact legislation to permit women to have abortions.” The 1992 ‘X’ case would prove him right.
In the same debate,then Minister for Health, Labour’s Barry Desmond summarised of the flaws in the amendment and what would likely happen if it was passed. “It will lead inevitably to confusion and uncertainty,” Desmond said, “ not merely amongst the medical profession, to whom it has of course particular relevance, but also amongst lawyers and more specifically the judges who will have to interpret it. Far from providing the protection and certainty which is sought by many of those who have advocated its adoption it will have a contrary effect… a doctor faced with the dilemma of saving the life of the mother, knowing that to do so will terminate the life of “the unborn” will be compelled by the wording to conclude that he can do nothing.”
In the intervening thirty years, the Dail archive records over one thousand entries for abortion, including parliamentary motions and questions and two further proposed constitutional amendments in 1992 and 2002 which sought to overturn the X case judgement but were defeated in the popular vote. By 2001, the UK office of national statistics suggested more than 6,000 women providing Irish addresses had abortions in Britain the previous year.
The solution of the Ahern regime was to add to that statistic, as then Dail deputy, Michael D. Higgins, put it : “The Government has decided to go to the people to ensure that, in the rare cases where a woman is prone to suicide, she will go to England.”
As the now President of our Republic observed, “Is it not an extraordinary situation where the Constitution is to be used as some kind of trailer before the main film? …What is happening is that the Government, being gutless, refuses to legislate in accordance with the X case.”
‘Gutless’ just about sums it up. Previous governments may have got away with it, but the current Government has nowhere left to hide.