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Labour lost face on a key social policy issue when it went against Daly's Bill


Clare Daly's abortion bill was not passed by the Dáil

Clare Daly's abortion bill was not passed by the Dáil

Clare Daly's abortion bill was not passed by the Dáil

For the first time since I left politics, I found myself contemplating how I would vote if I was still there.

Clare Daly's Bill dealt with a finite medical and legal issue. But it is inevitably entangled in the wider maze of Article 40.3.3 of the Constitution, which time and tragedy has shown should be deleted for being overly restrictive.

Ms Daly and her supporters argued that to allow the termination of fatal foetal abnormal pregnancies, where the foetus is not likely to be born alive, can be dealt with by domestic legislation, avoiding the furore of a constitutional referendum.

And there is clear public and political support for such a change on humanitarian grounds.

To be honest, to argue that terminating such pregnancies has no bearing at all on the controversial constitutional articles is deluded. But neither should we as a society be hopelessly shackled by the Constitution when dealing with a medical condition which has already been the subject of judicial and political consideration.

Indeed, Minister of Health Leo Varadkar, who favours changing the laws on this, says there is a related file on his desk arising from the ruling of the European Court.

But Fine Gael is allergic to any return to the tortured ground of abortion, following the divisive passage of the Protection of Life in Pregnancy Act in 2013. It had after all taken more than 20 years to bring forward that minimalist piece of legislation and then only because Labour made it part of the Coalition Programme for Government.

Looking back, Labour should have insisted the fatal foetal abnormality issue be included in that bill. Arguably, such tragic medical cases would have found more supporters than the controversial suicide clause. At that time, 20 Labour deputies supported a change in the law on fatal foetal abnormality. Currently, half the Cabinet takes the same view.

But fear of the "floodgates" and of the country being "convulsed", to quote the Taoiseach this week, is the main reason for the Government's temerity. The legal advice to the Government is that any change to the status quo requires a referendum.

There are two aspects to this.

The first is that legal advice is not always the best political advice. One recalls the legal advice to the Government to deny liability for the Hepatitis C scandal. However justifiable legally, the advice was politically disastrous, causing delay and distress to the many victims and political ruin to the then Minister, Michael Noonan.

In the end, following a Tribunal of Enquiry, the truth was exposed and the State correctly accepted liability for negligence and compensated the women.

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Secondly, there are substantial legal arguments that this matter can be dealt with without rousing the thorny issue of the Eighth Amendment. Indeed, in a 2006 case heard before the European Court of Human rights, the Irish Government put forward a proposition that it was tenable that an Irish court might in such a case deem the foetus not an "unborn" for the purposes of Article 40.3.3. Or that even if it was an "unborn", its right to life was not actually engaged as it had no prospect of life outside the womb. In other words, because the unborn is not viable, the balancing of rights between mother and baby under Article 40.3.3 does not arise.

In the light of the above and wide public support for the change, it might have been more enlightened politics to allow a committee stage examination so as to tease out these medical and ethical issues with the expert contribution of medics as we had in the hearings in advance of the Protection of Life in Pregnancy Act. Although it may have ultimately been defeated, incremental progress and informed debate would have been achieved. Senator Ivana Bacik has proposed this.

What disappoints me most is that so many deputies, particularly women, did not articulate their stance on the record of the Dáil, or at all. Even if they couldn't vote for it, they could have gone on the record with their view.

Such omissions reveal true colours. It suggests that, mindful of a general election, most ran for cover. There was no opportunity to debate, explore, explain or empathise with the plight of the families affected or the substance of the matter.

In the end, Anne Ferris alone broke ranks with her party. She did the right thing; I would have done the same. Her like-minded parliamentary colleagues must be feeling deflated and deeply shortchanged when it comes to integrity. After all, it is party policy. Labour have missed an opportunity to be radical in Government.

Had Tánaiste Joan Burton declared she could not deliver 15 TDs, another way would have been found by the Taoiseach, a master of pragmatism, and some ground would have been won. Labour has suffered significant electoral loss by supporting "austerity". They should not cede ground on a key social policy because of a lack of nerve in dealing with Fine Gael.

Deputy Daly, while courageous, is wrongheaded in accusing the Taoiseach of hypocrisy. One assumes he too is acting in accordance with his conscience. He had every opportunity to state his intention to repeal the Eighth Amendment after the next election. Notably, he chose not to. It looks like the only hope of removing the Eighth Amendment is with Fine Gael under a new leader.