Pro-life campaigners were thinking way ahead on the Eighth
New poll shows a strong desire for change, writes Shona Murray
Yesterday's 'Irish Times' MRBI poll on abortion supports much of what the Citizens' Assembly returned earlier this year - that a desire exists for a change to the Constitution on the limits to access to abortion. In the MRBI poll, 70pc of respondents said the Oireachtas should be allowed to legislate for abortion by repealing the Eighth Amendment and opening up abortion services in less limited situations.
In the three public sittings of the Oireachtas Committee on the repeal of the Eighth Amendment, legal experts were asked to give their opinion on what would be the likely outcome for Ireland's abortion laws on the day after the public voted to repeal the Eighth.
Mary O'Toole SC told the committee it was "very unlikely" that a repeal would lead to an abortion regime which allowed access to abortion in any circumstances. She said the "whole ethos" of the State and the interpretation of the Constitution would not likely permit this.
But the implications of the Eighth Amendment have been much wider than perhaps voters had comprehended when they voted back in 1983.
"People didn't grapple with the impact" the Eighth would have, when certain issues like the 'X-case' arose, says Dr Neville Cox from the Law School at Trinity College Dublin.
"It was entirely foreseeable" though that the Eighth Amendment would impose obstacles against doctors treating women for rape or assisting women making tragically difficult decisions in situations where their foetus was not viable outside the womb.
"But people at the time voted for it because the Church told them, and maybe didn't like the idea of abortion," and when the 'X-case' happened, people thought "this wasn't what I voted for in 1983", he added.
Similarly, Ms O'Toole spoke about how the Eighth Amendment had "captured" aspects of women's health. She referenced the tragic case in December 2014 when the body of a deceased young pregnant woman was kept artificially alive in order to preserve the viability of her 15-week-old foetus. She had technically become a "cadaveric incubator".
According to Ms O'Toole, that situation did "engage the Eighth Amendment" where doctors couldn't use ordinary clinician practices because they were concerned they would be in breach of the law.
"There was no realistic prospect of an Irish court finding a right to abortion at the time in 1983," anyway says Dr Cox. However observers point to the landmark decision in the US of Roe v Wade in 1973 as one of the reasons that spurred on anti-abortion groups in Ireland to lobby for the insertion of the Eighth Amendment in the first place.
It started in 1965 with a case called Griswold v Connecticut at the US Supreme Court which decided that a law prohibiting contraceptives violated the right to marital privacy. Thus, it created a right to privacy drawn from various sections of the Bill of Rights.
At the time, 30 US states had laws prohibiting abortion and pro-choice campaigners wanted to campaign for a federal right to access an abortion which would strike down such laws.
They found a willing participant with a perfect test case in Jane Roe (real name Norma McCorvey), a woman who was pregnant and didn't want to be, who was willing to argue that the laws restricting abortion in Texas, where she lived, represented a violation of her right to privacy.
McCorvey, who died this year, spent much of her life afterwards campaigning against abortion.
Meanwhile, in Ireland, at the same time, the Supreme Court heard the McGee case, which concerned a young married woman living with her husband and four young children on a very modest income. She faced considerable risk of death or crippling paralysis if she were to become pregnant again.
The Supreme Court held that her right had been infringed by the State in confiscating spermicidal jelly which she had ordered from England on medical advice to stop her from becoming pregnant. This led to the acknowledgement of marital privacy.
The similarities with Griswald v Connecticut and Roe v Wade to the Mary McGee case were apparent for activists on all sides. Mary McGee was a woman with a strong legal case who, for life-saving reasons, needed contraception, and the State's laws were impinging on her right to life and privacy.
Anti-abortion activists in Ireland saw the thread and not illogically assumed, based on the American situation, the McGee case would lead to abortion legislation down the line. So they set about charting the course for the introduction of the Constitutional ban.
However, even with the major cultural changes in Ireland over the last almost 35 years, yesterday's poll shows 50pc of Irish people would still vote against a fully liberal abortion regime up to 22 weeks, similar to that in Britain.
In the end, and as the Oireachtas Committee continues to hear from experts, the publication of the proposed legislation that the Government intends to implement after the Eighth Amendment is vital for voters so they can be given as much clarity and legal certainty as possible before making a choice of such fundamental importance.
The anti-abortion groups were thinking way ahead into the next generation.