The View
Martin Mansergh
A wisely governed country strives to maintain social cohesion, particularly when it is under strain. Sometimes it is about how difficult and divisive decisions are taken. The experience of civil war over the Treaty and the limits of parliamentary authority contributed to a provision for referendums in the 1937 Constitution to amend it on matters of fundamental importance, concerning our democratic institutions, our international relations, and key issues of social morality.
Back in 1983, the need for the Eighth Amendment to the Constitution was disputed more than its content, given the extent of the consensus rejecting abortion. It did not lead to accentuated denominational religious differences, because, as became apparent subsequently, most Churches have similar views on the subject, with some nuances and internal exceptions.
The passage of the Eighth Amendment underpinned the legal position since the mid-19th Century, and has meant, as with the earlier constitutional ban on divorce, that only the people can change it. Since many legislators are hesitant on the subject, why would it have been better if the decision had been reserved to them?
The argument that abortion is too complicated a matter for the people to decide and has no place in the Constitution is not a good one. The whole point of a constitution is that its basic principles are not subject to the vagaries of shifting parliamentary majorities, but require serious public debate, if they are to be changed.
However, it is a reasonable criticism that the Oireachtas was slow in enacting detailed legislation on foot of the Eighth Amendment, as interpreted by the Supreme Court, before 2013.
While demand for the amendment was influenced by fear of judicial activism in imitation of the US Supreme Court, what has happened since 1983 is more coloured by the experience of the nominally restrictive British 1967 legislation, which in practice makes resort to abortion a matter of choice.
Travel area
Given the common travel area, Irish citizens have access to abortion in Great Britain, and the 1992 referendums on travel and information, following the furore over the ‘X’ case, explicitly recognised their right to avail of it, which runs to a few thousand terminations a year. The numbers would probably be many more, if the procedure were available at home.
The repeal campaign is based on a more vocal objection to having to travel incognito and difficulties of travelling facing the least advantaged.
One criticism of the existing law, which may need to be addressed if repeal is rejected, is (strongly contested) anecdotal evidence that some medical personnel are slow to take timely precautionary action to head off risk to a mother’s life, because of possible legal consequences. The law was never aimed at those having to make life-and-death clinical judgments, but rather at anyone tempted to open an abortion business.
The Eighth Amendment was seen by many as an advance in that the right to life of the unborn and of the mother were put on an equal footing, and that therefore there would be no circumstances in which a mother, who would probably have a husband or partner and in many cases other children, would be sacrificed for the sake of their unborn child.
Many people might have reservations about the idea that a mother’s fully developed life is only equal to that of an embryonic one, but on the other hand it is a huge shift to move overnight to a situation where no unborn child has any constitutional right to life at all.
Unfortunately in politics, the longer an uncompromising position is held, the bigger the eventual potential change.
The ban on abortion goes back to very different social conditions, where a wife was legally or financially dependent on her husband, and where unmarried mothers were not cherished, and in many cases their babies taken away and stigmatised, with a poorer survival rate in an institutional rather than a family setting, unless adopted or fostered.
Challenges
The referendum will be decided on by all citizens, but one of the biggest challenges facing the ‘No’ campaign will be persuading people that it is right to go on severely restricting the choices in this country of women facing an unwanted or crisis pregnancy. Current proposals go way beyond rape or incest or the inability of a damaged foetus to survive outside the womb. Another relatively new problem is the availability of the abortion pill without medical supervision, with no obvious way or will to enforce the current law making it illegal.
The realities of abortion are not pleasant to contemplate, but US-style graphic images are counter-productive.
If a woman who badly wants a child has a miscarriage, she will feel she has lost a child. While there is an argument against bringing an unwanted child into the world, there are very few children who wish they had never been born.
There will be many voters who will not be particularly happy with either of the choices with which they are faced. The Referendum Commission is of course correct that voters are only deciding for or against repeal, and in the former case conferring explicit and exclusive power on the Oireachtas to legislate without further reference to the people (ever).
The Government has set out an indicative legislative prospectus, but it has no majority to enact it, and most TDs will have a free vote.
The idea that this is a once-in-a-generation decision should be treated with scepticism.
If repeal fails this time, does anyone believe agitation for an early rerun will cease? If repeal is passed, there will be major legislative battles ahead, and experience abroad is that those seeking to restrict abortion will remain active. Such concerns as there have been about conscience and ethos under present law would become huge issues in the new situation.
Church allegiance will be important, but on its own not necessarily decisive. Should repeal pass, the pro-life movement will still have an important influence on the shape of what follows.