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 Splitting the Middle
A new referendum on the abortion issue has gained the support of the Irish bishops, making it quite likely that the measure will be approved. But the campaign is causing divisions within the pro-life movement.

By Ronan Mullen

If you had walked into a betting office in Ireland in 1993, and offered to wager that Ireland would hold a referendum to prohibit abortion within 10 years, you could have had any odds you wanted. As you walked out of the door, the bookie would have turned to the apprentice boy beside him and uttered, sotto voce, “There’s a sucker born every minute.”

But you would have won your bet. Ireland is poised to hold another constitutional referendum on abortion, nearly ten years after a controversial Supreme Court decision which ruled that abortion could be legal where there was a “real and substantial risk” to the life of the mother. The decision stipulated that a threat of suicide was such a “real and substantial risk.”

This new referendum is the latest political attempt to resolve the crisis created by the Supreme Court in 1992. But while the government’s proposal is fully supported by Ireland’s Catholic bishops, the proposal has divided pro-life campaigners. A minority of pro-life campaigners are opposing it because abortion is defined as the deliberate destruction of the unborn child after implantation rather than after conception—a definition which, as the critics see it, could open the way for the legal distribution of the “morning-after” pill in Ireland.

Supporters of the referendum argue that the unborn are already protected by the Irish Constitution, and that this referendum is simply designed to overturn the Supreme Court’s 1992 decision. Thus, they argue, approval of the referendum would add a new layer of constitutional protection for the unborn after implantation, but without subtracting from any existing constitutional protection for the embryo before it implants.

Despite these divisions in the pro-life movement, it is widely believed that the referendum will be passed—not least because the Catholic bishops and the most prominent pro-life campaigners are happy, while the more militant end of the pro-life movement is not.

With this referendum the government has probably captured the middle ground of Irish opinion on abortion. Most people are deeply opposed to abortion, but the popularity of the pro-life movement has suffered because of adverse reaction to the activities of some militant pro-life groups.

Last year Dublin Archbishop—now Cardinal—Desmond Connell told a group of Irish parliamentarians that he was opposed to the introduction of “American-style tactics” into the Irish abortion debate. This was seen as a veiled reference to the activities of one pro-life group, Youth Defence, which gained notoriety by displaying pictures of aborted babies and picketing the homes of politicians hostile to the pro-life cause.

The X case and its aftermath
If the referendum is passed it will mark a major watershed point for the Irish pro-life movement, whose cause seemed to have been dealt a fatal blow by the Supreme Court’s decision in the X case ten years ago. This case involved a pregnant 14-year-old girl, a rape victim, whose parents had taken her to Britain for an abortion. The parents sought advice from the Irish police about using DNA from the aborted baby in the prosecution of the rapist. Hearing of the case, the Irish attorney general sought an injunction to prevent the girl from traveling, in the light of the Irish Constitution’s pledge to defend the unborn child.

In a landmark ruling the Supreme Court decided that the young woman’s threat of suicide constituted a “real and substantial risk” to her life, and accepted that these were grounds for an abortion. The Court’s decision opened the way for a broad interpretation of the “real and substantial risk” standard; no psychiatric evidence was heard regarding the girl’s mental condition or her threatened suicide, and no time limit was placed on the stage of pregnancy at which an abortion might take place.

The decision stunned pro-life activists who had worked hard in 1983 to ensure the passage of Article 40.3.3 of the Irish Constitution, in which the Irish 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.”

One of the main reasons the Irish pro-life movement lobbied so hard for this amendment in the first place was the tendency of the Irish Supreme Court in the 1960s and 1970s to follow the judicial activism of its American counterpart. In 1973 the Irish judges held that the Irish ban on contraceptives infringed the right to marital “privacy”—a previously undiscovered right which was now determined to be guaranteed by the Irish Constitution. Although the main architect of this decision, Judge Brian Walsh, stressed that such a right to privacy could not lead to a right to abortion, pro-lifers felt differently, especially because the right to privacy had proven to be the foundation for the establishment of abortion rights in the American Roe v. Wade decision.

For a number of years Article 40.3.3 dominated the legal landscape where abortion was concerned, and it was successfully invoked to prohibit the distribution in Ireland of information designed to refer women to abortion clinics in Britain. But no constitutional amendment could withstand the hysteria generated by the X case. Faced with the tragic case of a pregnant 14-year-old girl, and pressure from politicians, media, and public opinion, the liberal majority on the Irish Supreme Court won the day.

Although the campaign for another pro-life referendum began almost immediately, the judges’ decision had handed a propaganda victory to the pro-abortion side. Not only had 20 years of pro-life activism failed to guarantee the right to life of the unborn, it was said, but the so-called “Pro-Life Amendment” had been counterproductive. Ever since then, pro-abortion political and media pundits have cited the X case to back their claim that abortion is too complex an issue to be dealt with in the Irish Constitution. Legislation was needed to give effect to the court’s decision, they argued.

But since any such legislation would have to follow the terms set down by the Court in the X case decision, legislation could only lead to a liberal abortion regime in Ireland. While the X case ostensibly legalized abortion in the restricted circumstances of risk to a woman’s life, it was soon realized that legal restrictions would be difficult to defend in light of the Court’s inclusion of a suicide threat as a possible justification for legal abortion.

While the Court had cleared the way for the legislature to introduce new laws on abortion, the end result was a stalemate. The judicial situation allowed no legislative ban on abortion, yet the public clearly opposed the legalization of the practice in Ireland. The majority of the country’s doctors opposed abortion as well, and on two occasions since the Supreme Court decision, the Irish Medical Council—which regulates the medical profession in Ireland—reiterated its opposition to abortion and ruled that doctors carrying out abortions would be guilty of “professional misconduct.”

Careful planning
The turning point came when Bertie Ahern, the leader of Ireland’s largest political party, the Fianna Fáil, promised shortly before the 1997 general election to resolve the abortion issue once and for all and to give the Irish people the final say on the matter. This was widely regarded as an empty political promise, but the Pro-Life Campaign had secured the breakthrough it needed.

After the election, the Ahern government invited submissions from the public, published a “Green Paper,” and eventually established an All-Party Committee of the Irish parliament to conduct hearings on abortion. It was a painstaking and exhaustive consultation process which lasted over four years, but to the great relief of pro-life campaigners it arrived at a clear and badly needed conclusion to the debate about the medical necessity for abortion. Doctors were agreed that under certain circumstances, medical interventions that were required to save a mother’s life could lead to the death of the unborn child (as in the removal of an ectopic pregnancy). But the consensus among psychiatrists was that abortion was not an appropriate medical response to a suicidal tendency in a pregnant woman. Thus the rationale for the X case decision had been demolished, and the government could now feel justified in overturning the Court’s ruling.

So the silver lining in the X case decision, from a pro-life point of view, was that it proved too liberal to be workable in Ireland. The most recent survey of Irish opinion on abortion, conducted before Christmas last year, shows that while 34 percent would support abortion in the case of rape, only 17 percent would support abortion on the X case grounds of suicidal tendency. As few as 11 percent backed abortion in cases where the unborn child had a disability. And this was just a survey; Irish people have shown in the past that they vote more conservatively in referenda than foregoing opinion polls indicate. The reason for that phenomenon may be that many Irish people are anxious to avoid the British experience of abortion —where abortion was originally legalized for “hard cases,” but the situation now allows abortion on demand at any time during the first 24 weeks of pregnancy.

Britain’s abortion statistics include over 6,000 Irish women who travel for abortions each year, and Ireland’s pro-abortion campaigners never cease to castigate the “hypocrisy” of banning abortion while allowing women to travel. Wisely, the government has chosen to address this by establishing a Crisis Pregnancy Agency to present women with positive alternatives to abortion. But that agency faces a difficult task, because Irish abortion figures have been rising consistently for years. And it is a measure of official complacency that until recently the establishment of such an agency has never been discussed.

The bishops’ support
In proposing to ban abortion now through the new amendment, the government has been anxious to avoid suggestions that a ban might endanger the life of women. Over one fifth (22 percent) of Irish people expressed total opposition to abortion in the most recent opinion poll, but a further 44 percent named a “risk to the mother’s life” as the only circumstance in which they would support legal abortion. Thus while the government’s proposal defines abortion as “the intentional destruction by any means of unborn life after it has implanted in the womb of the woman,” the legislation clearly provides that medical procedures aimed at protecting a woman’s life do not constitute abortion, even where unborn life is lost in the process.

It is this careful avoidance of any notion of direct killing which has secured the support of Ireland’s Catholic bishops for the referendum proposal. “We welcome and support the new proposal as a significant improvement on the current unsatisfactory situation,” the bishops announced at a recent press conference. “In particular, this proposal would appear to set aside . . . the acceptance of the risk of suicide as a legitimate ground for justifying abortion.”

This endorsement was crucial for the government. Despite the sexual-abuse scandals which rocked Irish Catholicism in the 1990s, the Church is still regarded as a key player on this issue. In November 1992, when the government attempted to restrict the scope of the X case decision—but in a manner which provided for the legality of abortion under some circumstances—it was the intervention of Archbishop Desmond Connell which tilted the public toward a “No” vote.

The lesson has not been lost on Irish Prime Minister, or Taoiseach, Bertie Ahern. Ahern is known to be the wiliest of politicians and the most astute of conciliators, and a man who successfully walks a tightrope between liberal and conservative instincts in both his political and personal life. No politician wears the ashes more prominently on his forehead than Ahern does at the beginning of Lent. Yet he is accompanied on trips abroad, not by his wife (from whom he is separated) but by his long-time partner, Celia Larkin.

But as an ordinary Dublin boy who grew up beside the Archbishop’s Palace, Ahern is known to be close to Cardinal Connell. The two men meet frequently at public events, and Ahern was a prominent guest in Rome last year when Archbishop Connell received his red hat from Pope John Paul II.

Last year there was embarrassment for Connell when Ahern hosted a reception in Dublin Castle to celebrate the creation of Dublin’s first cardinal in over a century. Ahern invited the cardinal personally, but the other guests received invitations in the names of Bertie Ahern and Celia Larkin. In response to what was regarded as a diplomatic quandary for Cardinal Connell, the archbishop accepted the invitation and kept his own counsel regarding what was perceived by many as a snub to the Church. Instead he made a well received speech at the ceremony in which he specifically referred to the importance of the Church’s teachings for society, including on the issues of marriage and the family. It was a comment which annoyed liberal journalists and commentators but for Cardinal Connell it was the only way out—the only route that allowed him to maintain his principles while also guarding his friendship with Bertie Ahern.

Striking a balance
Ahern’s instincts on abortion are conservative, and while other politicians and media pundits pooh-poohed the idea of another abortion referendum, the Taoiseach was listening to the grassroots of his party—and to four conservative independent members of the Irish parliament whose support was propping up his government.

Successive opinion polls backed the plan for a referendum to overturn the X case, and by the time the government announced the referendum last November, the Irish media establishment had come full circle: from believing that a referendum was the last thing the public needed to a grudging acceptance of its inevitability.

There is little doubt either that Ahern kept Cardinal Connell and the other Catholic bishops informed, albeit indirectly, of his plans for resolving the abortion issue. So while some Irish pro-life supporters—including Dana Rosemary Scallon, a one-time chat show host on Mother Angelica’s EWTN network and now a member of the European Parliament—are undecided about the referendum because it mentions implantation and not conception, the bishops are more confident.

“We are satisfied that, on any reasonable interpretation, the specific and particular protection offered to the unborn by the new proposal does not dilute or weaken the general protection already afforded by Article 40.3.3 of the Constitution,” the bishops announced in a December statement. But while they asserted their belief the proposal does not subtract from current constitutional protection of life before implantation, they warned that “outstanding issues remain which require the ongoing attention of our legislators.” Their statement continued:

We believe that the existing rights of the unborn from the moment of conception under Article 40.3.3 of the Constitution need to be reinforced by precise legislative measures. In particular, we are concerned that adequate and clear legal protection be offered to the unborn prior to implantation. This is particularly urgent in view of what is happening and what is likely to happen in the area of cloning and research on human embryos, and also in the area of assisted human reproduction where particular problems arise regarding the storage and disposal of human embryos.

So having satisfied themselves that the government’s proposal contains no dangers for life before implantation, the bishops are willing—for the moment at least—to settle for a proposal that only refers to implantation rather than conception as the moment from which human life should be protected.

While the Church’s clout may have waned on many issues, this is one area where Catholic opinion still counts when policy is being made. Speaking at the bishops’ December press conference, Cardinal Desmond Connell suggested it would be unwise for the government to propose a referendum on abortion which did not have the support of the Irish Catholic hierarchy. And he was right. Back in 1992, the bishops were divided on the government’s proposed referendum, and the intervention by then-Archbishop Connell (and others) led to its defeat. In December, the bishops spoke unanimously in favor of “an opportunity that should not be lost.” It looks as if the government has done its homework this time.

Ronan Mullen is a columnist with the Irish Examiner newspaper.

Back to Catholic World Report February 2002 Table of Contents