News Analysis

Saturday 30 August 2014

Dearbhail McDonald: 20 years after X we can no longer evade need for an abortion law

Published 08/01/2013 | 17:00

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IN his latest Twitter offering, Pope Benedict implores his followers to defend conscientious objectors. The timing of the tweet, which calls for the promotion of "freedom and respect for all" is divine, coming as it has on the eve of the Oireachtas Committee on Health and Children hearings on abortion.

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For the next three days, more than 40 souls will brave the threat of public vitriol that has been heaped on many people (myself included) who have participated in the abortion debate, by testifying before the committee.

The idea behind the public hearings, which will draw witnesses from the medical, legal and religious spheres as well as advocacy groups, is to assist the Government ahead of the drafting of new laws to give effect to the infamous X case ruling.

The need to introduce laws clarifying the circumstances in which women can access legal abortion is overwhelming.

In the 1992 X case, the late Supreme Court judge Niall McCarthy attacked the legislative inertia that had sparked the constitutional crisis surrounding the plight of a 14-year-old rape victim.

Judge McCarthy branded the failure to enact appropriate laws as "inexcusable".

The Government conceded in X that the 1983 anti-abortion referendum, which acknowledges the equal right to life of an expectant mother and her unborn in the Constitution, allowed a right to abortion in limited circumstances.

But successive governments failed to clarify the law, resulting in the contentious X formula that allows for abortion where there is a real and substantial risk to the mother's life (as distinct from her health).

The risk to maternal health includes the risk of suicide which, pro-life campaigners fear, will lead to abortion on demand.

The more immediate need to provide legal clarity stems from a 2010 ruling from the European Court of Human Rights in the A,B,C v Ireland case.

Then, a full chamber of that court ruled that Ireland's failure to implement the existing constitutional right to a lawful abortion violates Article 8 (privacy) of the European Convention on Human Rights.

Following the ruling, an expert group was set up to report on how the Government could implement the Strasbourg judgment.

The public hearings are significant in so far as a broad group of interested parties have been invited to "gather information which will be of assistance to the Government".

But we have been here before.

Thirteen years ago an All-Party Oireachtas Committee received more than 105,000 communications – 92pc of which were signatures on petitions.

But that committee could not reach a consensus on the way forward.

In 2002, just 10 years after the right to information and freedom to travel for an abortion had been decisively dealt with by voters, a referendum to allow abortion in cases where a woman's life is at risk arising from pregnancy, but not where suicide is threatened, was defeated by the electorate.

This time it's different.

The Government has already decided that it will introduce legislation combined with regulations to give effect to X.

It is not going back to the electorate to revisit the 1983 referendum and it will not ask voters, once again, to remove the threat of suicide.

This means that the battlefield will be dominated by key disputes such as the assessment of risk of suicide, time limits and conscientious objection for medical practitioners which is already catered for in UK law.

Any debate about legalising abortion is difficult, not least because it involves a clash of absolutes by those with deeply held convictions on all sides.

Limited as it is, the Constitution as interpreted by the Supreme Court in X permits legal abortion in Ireland.

Unless the people revoke that right and unless the Supreme Court reviews its own precedent in X – as it may be required to do in the near future if the Government's laws are referred to the court – we must find a way to give effect to it.

Irish Independent

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