Sunday 19 January 2020

A fourth abortion referendum looms - but is unlikely before a general election

Bertie Ahern introduced a referendum as Taoiseach in 2002
Bertie Ahern introduced a referendum as Taoiseach in 2002

IRELAND has been grappling with that unholy and alternative trinity of contraception, divorce and abortion for a very long time now.

Of the three, abortion has proved the most intractable and yet again anything resembling a solution appears as elusive as ever. Over the last 30 years there have been three referendums, one of which asked three separate questions, and there have been numerous hearings in the Irish and international courts.

On several occasions the issue has convulsed the nation. Lamentably, at times what passed for debate was little more than vulgar and particularly hurtful abuse.

For the longest time the issue was governed by a piece of legislation which dated back to the British regime in the form of the Offences Against the Person Act of 1861. This outlawed abortion and made it a criminal offence.

The new Irish State kept the 1861 Act on its books. It is also interesting to note that while divorce was specifically subject to a constitutional prohibition, there was no reference to abortion.

Over a century later another piece of British legislation, the Abortion Act of October 1967, set changes in motion. Soon after the introduction of legal abortion provided by registered medical practitioners on the adjacent island, large numbers of Irish women began travelling by ferry and plane to use the service.

In October 1983 the Irish electorate voted by a 2:1 margin in favour of amending the 1937 Constitution to specifically protect the life of the unborn child. The referendum was facilitated by Fine Gael Taoiseach Garret FitzGerald who was engaged in a gut political struggle with Fianna Fail leader Charles Haughey after much lobbying by anti-abortion campaigners who felt the constitutional ban was needed.

Article 40.3.3 of Bunreacht na hEireann read: "The state acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as is practicable, by its laws to defend and vindicate that right."

In 1988 the Supreme Court ruled that providing information on how to procure an overseas abortion breached Article 40.3.3. In 1991 the Union of Students in Ireland partially succeeded in an EU Court challenge which found that abortion was a legitimate medical service tradable across borders.

But the EU judges also ruled that the students' unions could not advertise British abortion services because they did not have an economic stake in providing such services. In November 1991 Irish negotiators secured an addendum to the EU Maastricht Treaty which appeared to guarantee that it would not affect abortion law in Ireland.

The issue dominated the year 1992 through the notorious X-Case. A High Court injunction prevented a 14-year-old girl, pregnant as a result of rape, from travelling to Britain for an abortion. The Supreme Court, by a majority of three to two, ruled that if there was a real and substantial risk to a mother's life, an abortion would be permissible in this jurisdiction.

The judges' majority view was that the 14-year-old had threatened to take her own life if obliged to carry the baby to full term. The judgment spoke of a threat to the mother's life rather than her health.

In November 1992 three questions were put to voters on the issue who answered "Yes" on two issues. Henceforth there would be a constitutionally-guaranteed right to receive abortion information and to travel abroad for an abortion. A third proposal, to remove a suicide threat as grounds for an abortion, was rejected.

A number of court cases followed in the ensuing years. But no attempt was made by any government to legislate for the 1992 X-Case.

However, Taoiseach Bertie Ahern, put a referendum on abortion again to the people in March 2002. The complex package, which included inserting a detailed law into the constitution, proposed allowing abortion where a mother's life was at risk - but not in case of a suicide threat. This was rejected by 50.4pc to 49.6pc on a 43pc turnout. Another decade would pass before the politicians were again obliged to finally address the issue. In December 2010 the Strasbourg-based European Court of Human Rights gave its ruling in the case of three women applicants, known only as "A,B and C".

The Council of Europe judges rejected the cases of A and B but found that applicant C's human rights were breached. This essentially was because of successive governments' failures to legislate for the 1992 X-Case. In practice this vacuum left the woman unable to identify how she qualified for an abortion in accordance with Irish law.

The new Fine Gael-Labour Government did grasp the nettle and the 2013 "Protection of Human Life During Pregnancy" became law. The ink was barely dry on this legislation when new controversy erupted and advocates on both sides of this argument were clamouring for the nation's fourth abortion referendum. But with an election now at most 20 months away there is no rush to advance an abortion referendum any time soon.

John Downing

Irish Independent

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