Women with problem pregnancies are less likely to get the medical treatment they require as a result of the No vote in the Referendum conducted on 6th March. This magazine advocated a Yes vote after studying, not only the legislation, but also the practical measures the Fianna Fail/Progressive Democrat Coalition had taken to give it effect and various statements made.
Despite
superficial similarities, there was a world of difference between the proposal
put forward by Albert Reynolds in the November 1992 Referendum and that put
forward by Bertie Ahern. Both sought to remove the suicide option legalised
by the Supreme Court in the X-Case as a ground for permissible abortion. But
Albert Reynolds took no steps to make practical provision for Abortions to be
carried out in Ireland to save the lives of mothers. Bertie Ahern did. That
is why this magazine campaigned for a No vote in 1992, and advocated a Yes vote
in 2002.
Ideology
vs. Real Rights
No abortions
for suicidal patients have been conducted in Ireland in the ten years since
the X-Case judgment, despite their apparent legality. The ‘right’
therefore remained a dead letter. Therefore not much was lost by giving up a
right which never existed in reality (nor is likely to in the foreseeable future),
in return for the generous measure of therapeutic abortion which this Government
was prepared to facilitate.
There
can be little doubt that the Supreme Court only allowed for Abortion for suicidal
women as an expedient to get Ireland off the awkward hook, which Harold Whelehan
put it on when, as an Attorney General ‘guarding’ the Constitution,
he injuncted the X-family to come back from England to face a court hearing
intended to prevent them from availing of abortion facilities there. The State
knew of this planned abortion because the family had contacted the police to
prosecute the older man who had got X pregnant and so committed statutory rape.
At the time, the Haughey/Reynolds changeover was taking place, which meant that
the Attorney General was acting more freely than might otherwise be the case.
The case
caused a furore in Ireland and, more important, was deeply embarrassing to the
Government among its European partners—particularly when the High Court
upheld the case put by the Attorney General. The Supreme Court was expected
to do its duty and did so—overcoming its own anti-Abortion scruples to
allow for therapeutic abortions to save the life of the mother. This enabled
the X-family to resume their original course (which in the event was not needed,
as the girl had a miscarriage). There was no question of X having an abortion
in Ireland as a result of the Supreme Court decision: the family wished to avail
of the procedure in England.
As the
Supreme Court decision in the X-Case ran counter to the intentions of the 1983
Pro-Life amendment of the Constitution causing widespread disquiet in Ireland,
later in 1992 Albert Reynolds put the three issues raised by the X-Case to three
separate Referendums. The Irish people are not fanatical: they simply do not
want Abortion Clinics in Ireland. Accordingly, they gave Constitutional protection
to the Right to Travel abroad for Abortion and to obtain Information about Abortion
in Ireland (a completely new right, which over-ruled previous Court-made law).
Reynolds’ attempt to remove the suicide option for Abortion in Ireland
was defeated by the same Pro-Life/Pro-Choice combination that defeated the present
proposal from Government. As a result, therapeutic abortion has not been more
generally available in Ireland.
Failure
To Legislate
Those
who have campaigned so hard against the proposal put before the people on 6th
March all had ample opportunity to legislate on the basis of the X-Case: to
make it a practical proposition. All of them have been in Government: Ruairi
Quinn’s Labour Party, Liz McManus’s Democratic Left, and Michael Noonan’s
Fine Gael. They did not do so. And, having failed to give practical expression
to Supreme Court judgment themselves, they have stymied a measure which would
have introduced Abortion into Ireland as a normal part of medical practice.
They prefer the dead letter of the Supreme Court judgment to the practical availability
of medical procedures to women who need them. They have a lot to answer for.
It has
to be said that most of those who campaigned against Ahern’s proposal had
no particular interest in the Abortion issue: all they were concerned to do
was to inflict another Referendum defeat on the Government. Fine Gael and Labour
are deeply divided on the issue. David Quinn, editor of the Irish
Catholic, reports that he was given evasive answers when he asked
these parties “whether
or not they think the unborn child/foetus is a human being, and what rights,
if any, belong to it”
(28.2.02). Nora Owen, Fine Gael\s Campaign Director replied—
“The questions you pose are not ones which Fine Gael as a political party have answers for. These questions have not been satisfactorily answered by either medical, legal or theological experts. Secondly, in this Referendum the kernal [sic] question being asked of the people is do they want to overturn the X case ruling or maintain the status quo. Fine Gael is opposing this referendum on a number of grounds which have been spelt out in the Dail and publicly”. (The Irish Catholic, 28.2.02.)
In fact,
there is probably a Pro-Life majority in Fine Gael, but it was content to make
trouble for the Government and joined the substantial numbers who campaigned
on party-political grounds, rather than the rights and wrongs of the issue.
Michael Noonan himself did his best to generate confusion, referring darkly
to “the
consequences of this unnecessary legislation”
(28.2.02, colour advertisement in the Irish
Independent).
He was also pursuing party interest when challenging Ahern to a debate. However,
they are greatly mistaken if they think that this opportunism will bring them
votes at the coming election, apart from a couple of Dublin constituencies.
(The No vote was at its most solid in Dublin.)
Labour
is also divided on Abortion, with the leadership distancing the party from the
pro-Choice motion approved by its Cork congress. When the Irish
Catholic asked Michael Allen, General Secretary of the Party, its
position on Abortion, it replied as follows—
“While the Labour Party welcomes any initiative from the media to contribute to an informed and rational debate in advance of the forthcoming referendum, I do not believe that any political party can supply you with a meaningful corporate view on the profound ethical and philosophical issues which you raise. I have no doubt that within the Labour Party there are individual members holding a range of views on these questions, and they are not areas on which the party, per se, has a view” (ibid).
It is
hard to know how parties that are as confused as this would be able to produce
laws that would be improvement on what was lost in the Referendum.
Democratic
Left is probably united in wanting the full pro-Choice position legislated,
but the party has made little impact in making a case for this to the Irish
people.
There
has been a consistent Opinion Poll majority in the country since 1992 for another
referendum to re-address the issue of Abortion.
As for
even limited legislation implementing the full X-Case judgment, the general
feeling in the country was that the suicide grounds for Abortion lent themselves
to such manipulation as to lead, virtually, to abortion on demand.
The way
attitudes are moving can be judged by the fact that 250,000 doses of the Morning
After Pill were dispensed in the Republic in 2001 (see Irish
Independent, 9.3.02).
The Irish
Times, having initially supported the proposed wording, campaigned
against it, and on 4th February it approvingly quoted arguments put forward
by the Adelaide Hospital Society which deny that “women
would feign a suicidal condition in order to obtain an abortion”,
“that the profession of psychiatry would collude
with this”, or even that there could be doubt “that
the profession of psychiatry might… be incompetent to assess the risk to
the life of such patients”. The conclusion is that the proposal
is “profoundly discriminatory against women”.
These
views are either naive or devious. The present writer is well aware of the tricks
that women had to resort to to get abortions in Britain before the 1967 Act,
which allowed for abortion on social grounds. In particular, a story comes to
mind of a woman she knew, who put on a big act for a psychiatrist, including
seeing little men marching over the desk. Whether the psychiatrist knew she
was feigning, or genuinely believed that pregnancy had driven her mad, it is
not possible to say. What is certain is that psychiatry is anything but an exact
science and experts of this kind tend to say what the person paying them wants
them to say. But, certainly, the middle and upper classes were able to obtain
abortions in the private sector in those years. Working class women were not
so lucky in most cases, as they did not have the substantial sums of money required
then (but less so now), or the knowledge of what was available.
The issue
of suicidal women is a difficult one, as there are undoubtedly cases in which
a pregnancy puts women into deep despair. Sports Minister Dr. Jim McDaid (the
Fianna Failer that Fine Gael and Labour prevented from becoming a Minister under
Haughey on the grounds of his supposed Republican sympathies) has said that
he once had a pregnant 16-year old attend his practice, desperate for a way
out of her dilemma. He advised her to tell her parents of her pregnancy. She
could not face doing this and committed suicide. However, it is not clear that
availability of abortion on grounds of suicide would have helped her, as it
was telling her parents that she could not face. No one is suggesting that young
women should be able to avail of such abortions secretly. Even in England there
are only debates as to whether under-age young women should be allowed to have
secret contraception advice; there is no suggestion that they be allowed to
have abortions confidentially.
The difficulty with suicidal tendency as a ground for abortion is that the symptoms are not clear, and cannot be measured objectively as in physical threats to a mother’s life. The option the Government had chosen is therefore understandable: of providing easy abortion procedures for physical threats to a mother’s life in pregnancy, and having the England option for the mental threats. During the run-up to the vote, the Government announced that the Health Boards would be provided with funds so that they could bring young girls in their care to England for abortions (see the lead story in Irish Examiner, 5.2.02, State To Fund Abortions For Rape Victims In Care).
This
position was criticised in an editorial in The Irish
Catholic, called Think Again. David
Quinn argued that this concession “means that the
Government must believe that abortion is sometimes justifiable”,
and that making it endangered the Yes vote for the Referendum (7.2.09). But
hardly anyone in Ireland now argues that Abortion is never justifiable. Certainly
the Bishops no longer do so.
The England
option is sneered at these days, but it is not such a bad one. Nor is it prohibitively
expensive (and some of the voluntary clinics in England would not charge for
performing an abortion, where there is hardship). For years this magazine published
the addresses and phone numbers of numerous clinics in Britain (as well as of
women’s health clinics in Ireland) in every issue, knowing that it was
taking the risk of prosecution by doing so.
Some
of the Pro-Choice lobby used extreme emotionalism, and even moral blackmail,
to promote their case. Liz McManus has been to the fore in arguing for a No
vote on behalf of the Labour Party. It is reported that she declared that voting
Yes was tantamount to saying to your “sister, daughter
or girlfriend who is pregnant and suicidal after being brutally raped and mutilated
‘would [sic] rather you die than have an abortion!’” (report
in Irish Catholic, 14.2.02). For good measure
she declared that the whole referendum process was really only about “men
controlling women”. This sort of thing is not conducive to rational
debate. However, if that is what she believes, surely she should be arguing
that only women be allowed to vote on reproductive issues? The fact that she
does not do so suggests that it is just a debating point, or a ploy to disable
those who would take a general view of the problem.
The Legislative
Option
Sometimes
feminists argue as though there was no such thing as society (an idea popularised
by Mrs. Thatcher). They put forward positions which suggest that women should
be liberated from all social controls in their personal lives. It is not an
argument that they would apply to any issue, aside from reproductive ones. Quite
probably Liz McManus would advocate all sorts of social controls on a raft of
human behaviour just as passionately as she argues that anarchism should prevail
in the area of reproductive rights. But it has to be said that society has an
interest in the well-being of all its members: and it has an interest in reproducing
itself. That is one of the reasons why there is taxation and subsidy of family
life. In some countries the social interest is expressed by encouraging reproduction,
in others there are heavy limitations on it.
On RTE
TV’s Questions And Answers, Martin
Mansergh, who will be contesting a Dail seat for Fianna Fail in Tipperary, explained
the difficulties which had led the Government to pursue the unusual course of
proposing Constitutionally-protected legislation in the Referendum. He said:
“…Mr. Justice O’Flaherty back in 1992 castigated the Oireachtas for not producing legislation. And in a situation where you don’t have legislation… medical practice is in legal doubt, emergency contraception is in legal doubt. This is a serious attempt to create a reasonable degree of certainty. Now, you can never stop people challenging anything in the Courts, but I think this referendum is reasonably grounded. And I think it’s the best estimate of where Irish society is at the moment. And I don’t think Irish society—and one can agree with this or disagree with it—but I don’t think it’s ready, or wants, the introduction of abortion clinics. And I think that that is what legislating for the X-Case would involve. Now to be fair to Fine Gael and even Labour, I’m not at all sure actually that they do, or if they were in government after the next election I’m not at all sure that they would legislate for it. They certainly—I mean, I certainly remember Labour, when we were in government with them, it was the last thing they wanted to tackle. And John Bruton, when he was leader, had the position that nothing should be done about it.
“[Bowman:] Nothing needed to be done about it was his position.
“[Mansergh:] Well, Mr. Justice O’Flaherty took a completely different view, because it means that everything that is done in hospitals to save a woman’s life is open to legal challenge. This at least would put that right, and it would also put the status of the Morning After Pill from the criminal law right—indeed, if you vote No to that, then, I mean the status of the Morning After Pill will still be in doubt from the point of view of the criminal law…”
Gay Mitchell,
Health spokesman for Fine Gael, has suggested that, rather than amending the
Constitution, his Party would favour legislation on the Abortion issue. He said
there would be “very tight boundaries”,
outlining the “limited circumstances in which an
abortion could take place”. He added—
“We would legislate not for the X case but for Article 40.3.3 to protect the mother and the unborn and in so doing delimit the X case. You would have to set out things like what evidence exists to show there is a real risk of a loss of life. There would have to be some conditions and certain people who would say there was that risk.
“Any future legislation could qualify or delimit the X case ruling without the need to water down the existing protection for mother and unborn in article 40.3.3. Taking a complicated constitutional route to reverse the X case entirely is presenting more opportunities for abortion on demand than ‘pro-life’ supporters seem to be aware of.” (Irish Times, 26.2.02.)
Of course
there was no proposal “to reverse” the
X-Case ruling put before the people. On the contrary, there was a very generous
measure implementing it—aside from suicide grounds. Delimit means to mark
the limit of, in other words, to restrict the application of the X-case ruling.
A similar
position was put forward by Ruairi Quinn, who rejected the “slippery
slope” argument on suicide, saying “It
is the Irish people who determine the edge of the slope. They have already determined
and the Labour Party itself does not want another divisive referendum.”
Presumably, when he talks of the decision of the Irish people, he is referring,
not to the 1983 Pro-Life Referendum, but to the November 1992 Referendum, in
which opposing forces combined to defeat the proposal. Of course, the Irish
people had no say when the Supreme Court interpreted their Constitutional amendment
in a way that was not intended.
Quinn
has affirmed that “The X Case… has set the parameters of permissible
abortion in this state”.
That
case was decided without the benefit of psychiatric advice. However, the Labour
Leader holds that should change. Denying that “psychiatrists,
doctors and women would conspire to tell lies”, Quinn makes proposals
intended to counter just that scenario!—
“It may very well be that practice could start with two psychiatrists. It may be necessary to go to three; it may be the psychiatrists themselves would want that safeguard for professional and ethical reasons.
“This is the sort of evolving landscape of the implementation of the X Case which is why it shouldn’t be frozen in legislation locked into the Constitution.”
It seems
that Quinn does not wholly believe in the honesty of the psychiatric profession!
What happens if two psychologists disagree?
Any readers
familiar with Church & State arguments down the years about the political
nature of law and of the ideological stance of judges will be highly amused
by the reasons Ruairi puts forward to prove that psychiatrists can be trusted
not to be a vehicle for abortion on demand—
“There
is no evidence that I am aware of of psychiatrists allowing their political
and ideological value systems intrude into their professional assessment.
“It
is a bit like saying that judges on our Supreme Court would be determined by
their political or their ideological construction in the determination of cases”
(Star 27.02.02).
Simplifying
Therapeutic Abortion
All this
would be very well, if we were in the realm of abstractions, or if anything
less crucial were at stake than women with problem pregnancies. It is clear
from the above that, were Fine Gael and Labour left to legislate for the provision
of Abortion, they would either do nothing or would lay down procedures so complicated
as to create a legal minefield for doctors—discouraging abortion in any
but the most severe circumstances.
By contrast,
the proposals put forward by the Coalition were simplicity itself. A single
doctor may decide to perform an abortion in any designated centre (which will
be Hospitals). This is easier than in England, where two doctors have to approve
all abortions. No onus to consult is put on the doctor in Ireland, but he is
expected to write a report on the case and his reasons for terminating. (The
opposition tried to make an issue of the report, saying it breached patient-doctor
confidentiality!) As doctors write up notes about their patients in any case,
there is not much different in the report requirement.
And the
other plus factor in the lost proposal is the latitude that is given to doctors.
The legislation would only have put the onus on them that they are reasonably
sure that there is a risk to the mother’s life. This is a very generous
interpretation of a Supreme Court decision, which itself rejected the severe
option put forward by the barrister acting on behalf of the Attorney General
in the X-Case, Peter Shanley. So wide is the latitude that is given to doctors
that Dana Rosemary Scallon put that forward as one of the three reasons she
was recommending Pro-Life people to vote No:
“…justification for abortion will rely on the ‘reasonable opinion’ of one medical practitioner which could be open to wide interpretation…” (letter, Irish Independent, 4.3.02).
There
can be little doubt that the Masters of three Dublin maternity hospitals backed
the proposals just for these reasons—that they would have freedom to act
in circumstances which may be very difficult. Dr. Peter McKenna, a practising
obstetrician and gynaecologist, is the Master of the Rotunda in Dublin—the
most liberal of the hospitals. He had reservations about a couple of aspects
of the proposal put before the people. For instance, writing in his personal
capacity, he says—
“…I would have preferred that a medical procedure designed to destroy an unborn human life would be defined as an abortion irrespective as to the justification for doing it.”
He did
not agree with “torturing the language”
to find new words to describe an abortion which is carried out for purposes
of saving the mother’s life.
Also,
he had reservations about the risk of suicide being removed as a justification
for termination:
“I personally have never seen a patient where termination is necessary for psychiatric reasons, but I have the niggling fear that some day I might.
“I fully appreciate that the threat of suicide can be easily made and could prove to be the thin edge of the wedge, but I am still unhappy that a specific cohort of patients are being excluded for no better reason than their inclusion could be open to misinterpretation.
“Having said that, I have discussed this element with psychiatric colleagues whose opinion I would respect and have been somewhat reassured that termination is never part of the treatment of depression.”
A third
reservation of Dr. Mc Kenna’s was that abortion had been made too easy!—”in
my opinion there should be a second opinion in order to effect a legal termination
of pregnancy on medical grounds”.
Having
outlined his reservations about the proposal, Dr. McKenna explained why he was
advocating a Yes vote—and his reasons coincide with ours:
“There are certain elements of the proposed Bill which I feel are very worthwhile. the definition, for example, of abortion, is I feel both useful and workable…
“The definition used focuses the debate very closely on the question of abortion and does not allow the related but different topics of contraception and assisted reproduction to get mixed up together.
“The most obvious benefit in this Bill from a gynaecologist’s point of view is that a seriously ill mother can now be offered a termination of pregnancy in this State if it is done to save her life.
“This is a very rare event and when it was done in the past there was genuine doubt in the minds of practitioners whether they were breaking the law.
“To know with certainty that recognised medical practice is legal is a considerable comfort for these very unusual cases…” (Irish Times 6.20.02).
Dr. McKenna added a plea for a further change in the law to allow foetal abnormalities—that is, to allow women to terminate a pregnancy where the unborn could not survive after birth.
Finally,
he explained that he was with—but not of—very different elements in
advocating a Yes vote. He would be travelling with others, “with
whom I would not normally wish to journey”, and, even though the
destination was not “exactly” right,
“there may not be another” opportunity
“for a very long time” (ibid).
Different
groups had different agendas in this Referendum, but when ideological considerations
were swept aside, the important thing that stood out was that Fianna Fail was
introducing therapeutic abortion in Ireland, and had—against the odds—built
a wide coalition for its proposal. It was defeated by forces that took their
eyes off the main objective, to improve conditions for sick pregnant women.
AC
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