The Republic has already had two very divisive abortion referenda (1983 and 1992), as well as a landmark Supreme Court decision (1992) that had clear parallels with the 1973 U.S. Supreme Court decision in Roe v. Wade.
With two other constitutional referenda scheduled for later this year—one to ratify the Nice Treaty of the European Union, the other to allow for the establishment of a Judicial Council—the opportunity is undoubtedly at hand to include abortion in the package. The government’s public commitment to do this still stands, though privately ministers admit there is little stomach for it. With the Celtic Tiger economy doing exceptionally well and the Good Friday peace agreement holding in Northern Ireland, the Taoiseach has repeatedly said that his government (a coalition of Fianna Fail and the Progressive Democrats) will run its full five-year term (up to June 2002).
An untimely move on abortion could derail things. But the government is dependent for a voting majority in Dail Eireann (parliament) on the support of four independents; and while all four are in broad agreement with government policies, they have also stated that they back the demands for another referendum on abortion. Whether there will be one before the next election is now anyone’s guess. What is clear is that, sooner or later, this or some other government must address the messy situation left in the aftermath of that 1992 Supreme Court ruling in the so-called X Case.
That ruling proved as contentious in the Irish context as Roe v. Wade was in the United States. And it also raised a host of similar concerns about the role of the Irish Supreme Court in determining public policy on such a deeply felt issue as abortion.
It isn’t just that many people in Ireland believe the Supreme Court got it wrong in 1992. The debate also reflects concern about where the power to determine public policy on such a crucial issue as abortion (literally, a life or death matter) should lie. Should it lie with the courts, with parliament or with the people? That, almost as much as the pros and cons of the morality of abortion itself, is agitating many citizens.
The practice of testing legislation against the provisions of the Republic’s 1937 Constitution had given rise by the 1980’s to a belief that the courts were usurping the powers of parliament. And in Ireland today—just as in the United States—the view has taken hold in some quarters that the judiciary has become too “political.” The persistence of this view is particularly pronounced among those opposed to abortion. They are very aggrieved about the X Case, a ruling, they believe, that thwarted and overturned the will of the people as expressed in the first referendum on abortion in 1983. Consequently, the campaign for another referendum has been motivated in part by a distrust of the judiciary and a desire to ensure that the final say, the definitive verdict on abortion should not rest with the courts.
Facets of the X Case (Attorney General v. X) may evoke for some American readers memories of the Sherri Finkbein controversy in 1962, when a 29-year-old mother of four from Phoenix, Ariz., had to travel to Sweden for an abortion. The Irish controversy involved a 14-year-old girl, known as X, who became pregnant as a result of rape. Both she and her parents decided to travel to Britain for an abortion. While there, an injunction was secured by the attorney general, and on learning of the injunction the family returned to Ireland.
The injunction was appealed to the Supreme Court. A majority of the court held that if there was a real and substantial risk to the life, as distinct from the health, of the mother, and this could be averted only by the termination of her pregnancy, then abortion was lawful. Evidence was given that the girl was suicidal as a result of the rape and the pregnancy, and the court agreed that this constituted a “real and substantial risk” to her life.
However, the court also found that if there was no such threat to her life, the constitutional right to travel could be restrained if the trip were for the purpose of obtaining an abortion. This judgment, together with an earlier decision by the European Court of Human Rights in Strasbourg, gave rise to three further constitutional amendments. The three were put to the electorate in one package later in 1992. One proposal sought to remove any limit on the right to travel; the second sought to remove any ban on the right to information about abortion services abroad, and the third—dealing with the “substantive” issue—sought to rule out the risk of suicide as grounds for abortion. The travel and information amendments were passed; but the one dealing with the “substantive” issue was defeated.
As a consequence, the Irish Republic is now left in a situation where a pregnant woman or girl, if suicidal as a result of her pregnancy, is not only free to travel abroad for an abortion, but can also legally seek one in the Republic. However, the practical reality is that there is no legal abortion available in Ireland because it is prohibited by the Irish Medical Council’s ethical guidelines.
The state, of course, acting on the Supreme Court ruling in the X Case, could legislate to give practical effect to this ruling, but successive governments have steadfastly refused to do so, their assumption being that this would prove highly divisive. Instead, the Toaiseach promised during the 1997 general election campaign that, if returned to office, he favored putting the issue to the people again in a new referendum. Shortly after the Fianna Fail-Progressive Democrats Coalition was formed (June 1997), Mr. Ahern announced a Green Paper. When it appeared in September 1999, it outlined seven options:
1. an absolute constitutional ban on abortion;
2. an amendment of the constitutional provisions so as to remove the risk of suicide (restrict the application of the X Case) as grounds for permitting abortion;
3. the retention of the status quo;
4. the retention of the constitutional status quo with legislative restatement of the prohibition on abortion;
5. legislation to regulate abortion only in circumstances defined in the X Case;
6. a reversion to the position as it obtained prior to 1983;
7. permission for abortion on grounds beyond those specified in the X Case.
The Green Paper was referred to an all-party committee on the Constitution in September 1999. A year later that committee recommended the setting up of an agency to reduce the number of crisis pregnancies, but was silent on the seven options. It did recognize that a major problem facing Ireland was the large number of crisis pregnancies that result in recourse to abortion facilities in Britain. Since the passing of the British Abortion Act of 1967, over 100,000 women giving an address in Ireland have had abortions there. That is the official figure, but it is widely believed that the true number could be twice that.
Before 1983, abortion was illegal in Ireland under the 1861 Offences Against the Person Act. In the early 1980’s, after fears had been voiced that Ireland’s membership in the European Union might lead to the imposition of abortion legislation, a vigorous campaign began for a constitutional prohibition on abortion, irrespective of circumstances.
In 1983 a Fine Gael-Labour Coalition, headed by Dr. Garret Fitzgerald, put an anti-abortion amendment before the people. It said: “The State acknowledges the right to life of the unborn and, with due regard to the equal right of the mother, guarantees in its laws to respect and, as far as practicable, by its laws to defend that right.” The amendment was carried by a 2-to-1 majority.
With this in place, it was generally believed that there was now a watertight constitutional guarantee against the introduction of abortion in Ireland. Then, in 1992, came the X Case. The unthinkable—or what a majority of the people since 1983 regarded as unthinkable—had happened: abortion was now legal in the Irish Republic. How could this have come about? The opponents of abortion insisted that the Supreme Court overreached itself, usurping the sovereign power of the people. The decision in the X Case, they claimed, was an abuse of judicial power.
Earlier this year, a new anti-abortion group, the Mother and Child Campaign, was launched in Dublin, and its leaders insisted abortion was not necessary in any circumstances. At the same time, a rival group, Abortion Reform, stated that an “absolutist ban on abortion in Ireland” was neither feasible nor desirable. The only common ground between the two sides is that the situation created by the X Case is deeply unsatisfactory. For one side, it goes too far; for the other side, it is of no practical use unless and until the court’s adjudication is given legislative force.
For the politicians on all sides this has created a dilemma. They are aware that the X Case ruling (described by an editorial in the Irish Catholic newspaper as an “infamous decision”) has alarmed and alienated some sections of opinion and, at the very least, has saddened and disappointed the Catholic hierarchy. The latter have called for a new constitutional amendment that would once more prohibit direct and intentional abortion.
The decision rests with the government. But who should really have the final say on abortion—unelected and unaccountable judges or the people’s representatives in parliament? It is a question that is sure to surface as the debate on abortion heats up once again in the Irish Republic.