News Analysis

Saturday 20 September 2014

John-Paul McCarthy: Ryanair and Boots expose pro-life faction's failings

The 1983 amendment rests on the same sand as the 'national territory' partisans' model

John-Paul McCarthy

Published 02/12/2012 | 05:00

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The Minister for Justice eloquently characterised Irish abortion law last week as "deeply dysfunctional and obtuse".

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Alan Shatter's bracing analysis will remind some readers of another dysfunctional statement of "fundamental" constitutional scruple in our Republic, namely the "national territory" formulation in the old Articles 2 and 3.

There is some hope in this parallel because it suggests that the so-called "pro-life" faction are just as vulnerable as the "national territory" partisans. Both were able to point to solemn legal endorsements for their respective causes, but in both instances, their textual victories masked analytical malaise.

Think about it. The constitutional claim on Northern Ireland was said as late as 1994 to be a "primary legislative objective of the Irish people". This was just bluster though because two previous Fianna Fail Taoisigh, Lemass and Lynch, had broken ranks years earlier and indicated a willingness to drop the "national territory" claim.

In their different ways, both raised profound challenges to the "primary legislative objective".

What sort of "national territory" included a million people who couldn't even read the so-called "national language", ie Irish?

Could anyone name another "national territory" that allowed the extradition of terrorist suspects from the southern part to the northern part, even though extradition involves an agreed transfer between separate sovereigns?

And why did the southern part of the "national territory" not allow the northern part to enjoy taxation and representation in its national institutions?

The referendum that deleted this "primary legislative objective" and recast it limply as the "firm will" of the Irish people cleared the bar with a margin that would have pleased Saddam Hussein. (Almost 95 per cent voted Yes).

This margin was less a matter of post-Good Friday Agreement euphoria than a fairly obvious hat-tip to Lemass and Lynch.

It took a long time, but ultimately the "primary legislative objective" mumbo-jumbo collapsed under the weight of its own absurdity.

Now, switch focus. The "pro-life" faction is smaller than old-school Irish nationalism, but it has been just as formidable on paper.

Even so, its precious constitutional amendment rests on the same sand as the "national territory" model.

If the Taoiseach had half the self-confidence of Lemass, Lynch or Bertie Ahern, he could mould a consensus that would put this faction out of business for a generation.

All he need do is copy the Articles 2 and 3 playbook, and walk the country through the 1983 amendment.

After all, this is an amendment that outflanks Thomas Aquinas from the right, no mean feat in the 21st Century.

As the US Supreme Court Justice John Paul Stevens put it tartly in Webster v Reproductive Health Services in 1989: "For St Thomas, as for medieval Christendom generally, there is a lapse of time – approximately 40 to 80 days – after conception and before the soul's infusion into the fetus. What is destroyed in abortion of the unformed fetus is seed, not man."

The "pro-life" faction's amendment couldn't quite live with the distinctions favoured by St Thomas or the Council of Trent, and insisted that a newly fertilised egg had exactly the same status as a fully autonomous Irish female citizen.

This disordered equation demeans Irish women by definition, bearing as it does traces of the mentality that crafted the doctrines of limbo and demonic exorcism.

If the "pro-life" faction is vulnerable for claiming too much here, then it is simultaneously equally vulnerable for claiming too little.

How can it defend the integrity of a constitutional amendment that has proven itself powerless to prevent the destruction of the "unborn" via over-the-counter emergency contraception?

The "pro-life" faction has trapped women who become pregnant as a result of sexual assault, and ill women like Savita, but it can't prevail over the power of Boots pharmacy.

That's a blot in the copy-book for sure, but only a relatively minor one compared to its greatest enemy, Ryanair.

The 1983 amendment has allowed thousands of what its adherents must call premeditated murders to take place outside the Republic, but not one of its adherents so far as I know has mounted the obvious challenge. If the "pro-life" faction were a worthy foe on a par with Irish nationalism, it would have extracted something like the 1976 Criminal Law (Jurisdiction) Act from the government. (This act allowed certain terrorist crimes that had been committed in Northern Ireland to be tried in the Republic).

The woman- equals-fertilised egg equation insisted upon by the 1983 amendment surely requires action like this?

The absence of any campaign to draft legislation like this suggests though that the synthesis elaborated in 1983 is less a fundamental statement of principle than a later version of what Mairtin O Cadhain once called "briathra sleamhaine an cheannais", literally, the sleazy words of authority.

The "national territory" model was used by the Provisional IRA to justify the murder of thousands of innocents.

The citizen-equals-fertilised egg amendment comes from the same hysterical template. And until we void it, no amount of legislative tinkering will give Irish women equal citizenship stature.

Sunday Independent

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