(Editorial from Church & State Magazine, Summer 2002, No.69)

Abortion: A Lost Opportunity?

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.


Contents of Summer 2002 issue

Abortion: A Lost Opportunity?
Editorial (AC)

Fintan O'Toole And The Triumph Of Political Adolescence
David Alvey

Hubert Butler: A Controversy
Brendan Clifford

Thomas Davis: The Thinker
David Avey (series)

The Voting In The Abortion Refendum

Industrial School Records
Letter (Liam)

Does A Fertilised Egg Have A Spirit And A Soul?
Report of Letters in Daily Telegraph

Targetting Arab Schools In Jerusalem

Abortion: The Lost Middle Ground
Angela Clifford

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