Monday 23 September 2019

Words of the law that left the door open to years of debate

The Eighth Amendment has never made clear exactly what 'unborn' life was being protected

Advice: Peter Sutherland
Advice: Peter Sutherland

Eoin O'Malley

In February 1983, then Taoiseach Garret FitzGerald asked his very young attorney general, Peter Sutherland, for advice on the proposed Eighth Amendment. Abortion was already outlawed in Ireland, and there was no political will to introduce it. This was a country where only married couples could access contraceptives, and then just with their doctor's permission.

Abortion was outlawed by the 1861 Offences Against the Person Act, which stipulated life imprisonment for illegally procuring an abortion. The section of that act related to abortion became irrelevant in the UK in 1967 by its Abortion Act that year. Nobody really thought that Ireland was going to follow Britain in legislating for abortion. That was as likely as Ireland putting a man on the moon.

But there were genuine fears that abortion might be introduced by the courts. In the US, the 1974 Supreme Court decision in Roe v Wade had the effect of making it much more difficult for states to restrict access to abortion. The Irish Supreme Court might have been unlikely to immediately follow suit, but since the 1960s it had been pretty active in inventing rights that had the effect of liberalising Irish laws in ways the Oireachtas would never have. The McGee judgment in 1973 effectively told the Oireachtas that because of the newly discovered right to marital privacy it could not outlaw contraceptives. Privacy had been an issue in Roe v Wade, so it was not completely crazy to think an Irish Court might later go down this route.

In this context the Pro-Life Amendment Campaign (PLAC) was formed, and it was remarkably successful. FitzGerald, like nearly all Irish politicians, came out in favour of an amendment to put a constitutional ban on abortion. In the heat of the second 1982 election campaign, he agreed to the Fianna Fail wording, and now as Taoiseach he had to deliver that. Sutherland, as his legal adviser, had a role in helping him.

Sutherland was no radical. He died a committed Catholic, and served the Vatican as an adviser. But he could see problems with the proposed wording of the Eighth Amendment: "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 practicable, by its laws to defend and vindicate that right."

He advised FitzGerald "the wording is ambiguous and unsatisfactory. It will lead inevitably to confusion and uncertainty, not merely amongst the medical profession, to whom it has of course particular relevance, but also amongst lawyers and more specifically the judges who will have to interpret it".

Sutherland fought to use an alternative wording to ban abortion. He suggested: "Nothing in this Constitution shall be invoked to invalidate, or to deprive of force or effect, any provision of a law on the ground that it prohibits abortion."

But there was no majority in the Oireachtas for this. The Eighth Amendment we have was regarded by PLAC as preferable and watertight.

Sutherland could immediately see it was neither: "Far from providing the protection and certainty which is sought by many of those who have advocated its adoption, it will have a contrary effect." He was scathing about the term ''unborn'' which had no standard definition as a noun, not to mind a legal one.

The Eighth Amendment never made clear what was being protected. Did it refer to the organism created from the moment of fertilisation, or was it the life that had the possibility of surviving independently from about 24 weeks? He pointed out that defined at one extreme it could have necessitated the banning of the ''morning after'' pill used even at that time for victims of rape. Defined at the other, the courts could have put in place a more liberal abortion regime than any in Europe.

He didn't think the courts would go to either end of that spectrum, but Sutherland immediately saw the conflicting rights of the mother and developing baby would open up the possibility of abortion being introduced by the courts, and the chilling effect on doctors: "Further, having regard to the equal rights of the unborn and the mother, a doctor faced with the dilemma of saving the life of the mother, knowing that to do so will terminate the life of 'the unborn' will be compelled by the wording to conclude that he can do nothing."

He was prescient in seeing that some of the tragic, hard cases we have seen, such as Savita Halappanavar, were likely to happen because of what he saw as bad law.

And he accurately predicted that faced with more hard cases, the courts could choose a path that the people had probably not intended. The X case tested the question of ''equal right to life of the mother'', in which it was interpreted to mean that if a woman's life was at risk, including from suicide, an abortion should be permitted. This was something Albert Reynolds and Bertie Ahern thought intolerable and each proposed amendments to close off suicide as a ground for abortion. The people rejected both attempts to do that in referendums.

Many other hard cases later, legislation was finally put in place to give effect to the Supreme Court decision. It could probably be more liberal, even with the Eighth Amendment in place, but abortion would still be prohibited in cases of rape and fatal foetal abnormalities.

Ironically, had Sutherland's suggested wording been introduced, the abortion regime would have been much more restrictive. It is doubly ironic that the No side is claiming the Eighth as a bulwark against an overly liberal Oireachtas, when history would suggest the opposite.

If we repeal the Eighth Amendment, it won't make the abortion issue go away. It's likely to become politically live and there's no certainty that the Government has a majority to get its preferred legislation passed. But what at least should no longer happen is that the issue won't be exported on ferries to Liverpool or flights to London. We'll have to be grown up enough to deal with it ourselves. I suspect Sutherland would have approved of that.


Dr Eoin O'Malley is Director of MSc in Public Policy at the School of Law and Government, Dublin City University

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