Post-Eighth Amendment Irish Abortion Politics

Conclusion – Post-Eighth Amendment Irish Abortion Politics

This thesis has illustrated the exceptional nature of the conflict and policy making process that has developed in Irish politics and society since the insertion into the Irish Constitution in 1983 of the Eighth or Pro-Life Amendment or Article 40.3.3. The amendment obliges the Irish state to guarantee and vindicate the right to life of the unborn with ‘due regard, as far as practicable, for the right to life of the mother.’ This amendment, along with two further amendments – the Thirteenth and Fourteenth passed by referendum in 1992, two court cases – the X-case of 1992 and the C-case of 1997[1] -, the Offences Against the Person Act, 1861 Sections 58 and 59, the Regulation of Information Act 1995 and Protocol No.17 to the Maastricht Treaty on European Union, governs abortion law in the Republic of Ireland.

The Irish abortion conflict has followed a unique trajectory in the following ways. The issue was initially politicised by the demands of an anti-abortion lobby and policy became progressively more conservative. In all other liberal democracies the issue was placed on the agenda by groups seeking to liberalise existing restrictive laws and public policy eventually travelled in that direction. The Irish abortion debate was discursively constructed around the strategy of PLAC which emerged as a counter-movement to the Irish women’s movement in the early 1980s. It used the peculiarly emotive issue of abortion as a vehicle to reestablish the hegemony of “traditional” values and to challenge the claims of Irish feminism. The means by which it did this was a campaign for an anti-abortion amendment to the Irish Constitution from which flowed the curbs on the activities of the women’s information networks, who in actuality were the real targets of the pro-life movement’s strategy.[2] Anti-abortion groups were able to score such spectacular successes because there was little significant Irish feminist praxis on abortion and because political elites did not seriously engage with the moral and legal complexities of writing a ban on abortion into the Constitution. Uniquely also, the pro-life movement was able to set the terms of the debate because there was such a widely shared anti-abortion consensus in Irish society that the issue was effectively depoliticised by the time PLAC launched its pre-emptive strike.

It is thus argued that Irish abortion politics have been exceptional, in the first instance, in the absence of a just and stable solution to the difficulties that have arisen out of seemingly contradictory interpretations to the Eighth Amendment or Article 40.3.3. In particular, the thesis has critiqued the failure of Irish politicians to design a legislative framework which would implement the judgement of the Supreme Court in the landmark X-case in 1992, which found induced abortion to be legally permissible in certain circumstances.

The second aspect of Irish exceptionalism relates to the initial politicisation of the abortion issue by an initiative taken by the conservative Catholic pressure group, the Pro-Life Amendment Campaign (PLAC). In every other liberal democracy in this century the abortion issue has been politicised by an abortion rights lobby and existing restrictive legislation progressively liberalised. In the Republic of Ireland, by contrast, the issue was politicised by the demands from an anti-abortion lobby for a constitutional amendment which would pre-empt any attempt to repeal the Offences Against the Person Act. As a result the Irish abortion regime was tightened not just by the resultant “pro-life” constitutional amendment but by a succession of judgements in the “Open Door”, “Well Woman”, “Grogan” and “Coogan” cases. These judgements effectively prohibited pregnancy counselling agencies from informing clients about the identity and location of abortion clinics outside Irish jurisdiction and from making referral arrangements with these clinics on the grounds that these activities constituted ‘assistance in the destruction of the life of the unborn’. This judicial process culminated in the spectacle of a 14-year-old girl with suicidal thoughts being ordered to be detained in Ireland for the duration of her pregnancy. This absolutist trend in Irish jurisprudence whereby the right to life of the unborn virtually trumped fundamental competing rights such the right to impart and receive information and the right to travel was modified by the Supreme Court in its judgement in the “X”-case. This found that abortion was legal in Ireland where the life of the mother was at risk from her own “threats of self-destruction”.

The long-term consequences of PLAC’s strategy in seeking to constitutionalise the right to life of the unborn and of the acquiescence of Ireland political leaders in the early 1980s in it through their agreement to hold a referendum are described in Chapter One. In the first place, a bitterly divisive national debate raged between 1981 and 1983 about the wisdom of putting a ban on abortion into the Constitution. Next, after PLAC achieved its expected victory in the 1983 referendum, the venue of conflict switched to the courts as another right-wing Catholic pressure group, the Society for the Protection of the Unborn Child (SPUC), successfully sought the judicial enforcement of a positive obligation to uphold the right to life of the unborn. In the process, Ireland fell foul of the European Court of Human Rights and the European Court of Justice.

In the aftermath of the X-case, an almighty mess ensued for Irish politics. For Irish governments had to reconcile the demands of an outraged public that an X-case never occur again with the obligation in Article 40.3.3 to guarantee unborn life. To further complicate matters, the existence of Protocol No.17 to the Maastricht Treaty which Ireland had secretly negotiated with its European Community (now Union) partners came to light. This undertook that there would be no European Union interference with the application in Ireland of Article 40.3.3. As things stood in February 1992, the Irish government would, in the forthcoming referendum on ratification of the Treaty, be asking the electorate to sanction the ‘introduction of internment for 14 year old girls’.[3] With the lifting of the travel ban by the Supreme Court, it was let off this particular hook only for it to face intense pressure from pro-life groups, aghast at the implosion of their original strategy, for a referendum that would entrench in the Constitution their absolutist version of Article 40.3.3 before the Maastricht referendum. On this occasion, unlike 1981, this demand was resisted by the government of the day. The Treaty on European Union was duly ratified in June 1992 and an attempt was made in November that year to address the fall-out from the X-case again through the referendum device. This time rights to travel and information were written into the Constitution but a proposal to constitutionalise the legality of abortion when the life (but not the health) of the mother was at risk was defeated. Seven years later, Ireland still stands unique among liberal democracies (apart from the United States) in having no legislative provision for the regulation of the medical procedure of induced abortion.

As things stand currently, abortion policy making appears to be ridden by ambiguity and inconsistency. It is shaped by two court cases involving minors who became pregnant in abusive circumstances, the X-case and the C-case in November 1997. The legislation which governs the activities of pregnancy counselling services, the Regulation of Information Act 1995, has been criticised for textual contradictions. These relate particularly to the distinctions made between the referral of clients by health professionals and family planning agencies to abortion clinics outside the Republic (which is deemed to be illegal) and the dissemination of information about such (which is legal).

Ultimately the failure of Irish politicians to “lead from the front” on the matter of abortion has had detrimental effects on Irish democracy. In particular, it has left the field open for a vociferous pressure group/social movement with a strong resemblance to religious fundamentalist movements elsewhere to exercise undue influence over the political system. In the process vital civil liberties were negated by the courts in the cause of the sanctity of unborn life and a culture of self- censorship developed in the print and broadcasting media which precluded serious and reflective consideration of the complexities of the issue. In addition, the holding of the 1983 and 1992 referendums engendered unprecedented levels of animosity and bigotry in Irish society.

Explaining Irish Abortion Politics

The thesis has identified two principal dynamics in the Irish abortion conflict: the determination of the terms of the debate by the claims and strategy of the Catholic Right and the behaviour of Irish political leaders which has consisted of persistent abstinence from taking definite stands along with attempts to redefine the issue. It has stated and developed throughout the body of the text the hypothesis that the approach of Irish decision makers towards the issue of abortion will always differ fundamentally from those in other democracies. Rather than constructing the appropriate legislative framework, Irish politicians will always seek to refer and displace consideration of abortion to the referendum process. They do this because referendums insulate Irish politics (and especially the party system) from the full brunt of the cultural cleavage in Irish society between supporters of the “liberal agenda” and conservative Catholicism. This occurred in 1983 and 1992 and could possibly happen again in the next two years as the current Taoiseach, Bertie Ahern, did give an undertaking to hold a referendum on his election to office in 1997. However this tactic can no longer be adequately explained solely by deference to “traditional” religious values. For these are no longer hegemonic. Furthermore, there is a recognition of the reality of abortion in Irish society and the need to address plus a desire to avoid the resurrection of the bitterness of 1983 and 1992. But, at a certain level, pro-life pressure is still a factor in decision making calculus as the current Fianna Fail/Progressive Democrat government is dependent on the support of two independent deputies who want a fresh “pro-life” referendum as do a sizeable number of backbench Fianna Fail deputies.

The other unique aspect of Irish abortion politics has been the discursive construction of the debate around the claims of the anti-abortion pressure group/social movement actors. These were that the sanctity of unborn life was a central value in Irish society and that there were positive obligations upon policy makers and the judiciary to uphold this value. This claim united a number of divergent themes in Irish social relations such as the central role of Catholicism in public life, the gendered construction of Irish identity and the construction of frontiers between the “Irish people” and “alien” elements such as feminism, population controllers and the spiritual decadence of industrial Britain. These groups emerged at a time when liberalisation of social attitudes in one area of sexual politics, contraception, had clearly not extended to abortion. Thus other actors in the debate felt constrained by the perception of a “huge anti-abortion consensus” in Ireland.[4] Key elements of “Old Ireland” such as high fertility rates and low rates of employment for married women remained embedded in Irish society despite the onset of modernisation (it could be argued that these aspects of tradition happily co-existed and augmented modernity). Ireland at the end of the 1970s was about to undergo a period of severe economic retrenchment. Thus conditions were ripe for the emergence of a right-wing social movement dedicated to the restoration of “traditional” values. In a sense, this movement chose a “no-lose” issue – abortion – on which to mobilise.

An anti-abortion consensus existed in Ireland at the time because of the pervasiveness of a particularly legalistic and puritanical yet popular from of Roman Catholicism. The Church had through its political clout and control of much of Ireland’s social welfare and educational infrastructure historically limited Irish discourse and practice. Its grip over people’s hearts and minds and the political system had relaxed sufficiently by the 1970s to permit toleration of contraception. However this toleration did not extend towards the legalisation of abortion and so groups opposed to PLAC’s initiative were constrained by this reality. They therefore deployed arguments extraneous to the rights and wrongs of abortion itself such as the “sectarian” nature of the amendment and that it would not alter the reality that Irish women would continue to travel every year to Britain for abortions.

The Irish abortion debate is rarely cast as an arena for contesting unequal relations between the sexes. Instead it is an arena for contesting Irish identity. It is part of the pressure for change, the resistance to change and a clarification of cultural identity. Definitions of identity, notions of history, ideologies of historical representation are closely tied. Contesting received definitions challenges history, culture, social customs and hegemonic powers. Porter writes that Irish women are engaged in this contestation, confronting, deconstructing and redefining traditional representations of “women” and “family” and what it means to be Irish and involuntarily pregnant.[5]

The psychiatrist and broadcaster, Anthony Clare, likewise observes that under the passions generated by abortion lies a deeper conflict about fundamental Irish identity. The comparison made by a senior judge about the trek taken by 4,000 Irish women each year to Britain for abortions with the Nazi holocaust and the excommunication threat made by a Catholic bishop to anyone who deliberately helps a woman to abort suggests ‘that there is something quintessentially Irish about our emphasis on the value and the importance of human life.’[6] Dr. Clare sees abortion as ‘psychologically as well as literally alien’, after all women go abroad to have it. ‘Having to acknowledge abortion’ or even speaking about it ‘represents an assault on our sense of ourselves as Irish’.[7] However until the Attorney-General’s ‘clumsy intervention’ in the X-case, Ireland could live with the subtly hypocrisy of condoning the travelling to Britain of women to seek abortion as their personal dilemma as it ‘enabled us to maintain our abhorrence of abortion as a central religious, political and cultural tenet in our ideal world.’[8]

The X case therefore upset a complex and fragile psychological balance in that it offended liberal and conservative. It forced Ireland ‘to choose between a fiercely idealistic, absolutist position located at the very heart of Irish sensibility and an uneasy pragmatic and subjectivist position redolent of philosophies and moralities from other cultural and political traditions.’[9] Hence the objectives for Irish political elites in relation to the abortion debate have been to ensure that the rights of Irish citizens to travel and to access information about abortion service providers in Britain are guaranteed while maintaining the image of Ireland as an abortion-free zone.

The exceptional nature of the Irish abortion debate is largely explained by Ireland’s peculiar and uneven journey to “modernity”. An Irish nation state was created around the triptych of peasant proprietorship of land, the institutional power of the Catholic Church and the nationalist struggle for independence from the United Kingdom. The Great Famine of the 1840s and the “Troubles” in the period 1916-22 were defining events in the cementing of this national entity. A stable but stultifyingly conservative polity emerged from this process. Also emergent was a homogenous, largely pre-industrial and traditional society. Elements of this society were later in collision with the growing cosmopolitanism of Ireland as it entered its economic take-off on the backs of multi-national investment and an export boom in light industrial goods from the late 1950s (but some aspects of Irish traditionalism happily co-existed with this phase of modernisation). The emergence of a right-wing Catholic movement can be seen as, in part, the outcome of this conflict between “tradition” and “modernity”.

The strategy employed by Ireland’s counter-cultural movement of using the Constitution to advance its goals has created not just unique outcomes but unique problems in the argumentation deployed in the debate, not least for PLAC’s own position. Arguments for and against the Eighth and subsequent amendments tended to be shrouded in legalistic, technical language remote from the actual social reality of Ireland’s underground abortion sector. By using its own peculiar legal logic, the Irish judiciary in its earlier interpretations of Article 40.3.3 caused outrage among civil libertarians and women’s groups by shutting down pregnancy advisory services. It then caused consternation for the pro-life movement in the X-case by finding abortion to be legal under the very clause which was supposed to prevent such an outcome. But it used contorted reasoning to arrive at this judgement. Until a definitive statute governing the legality of abortion is passed by the Irish legislature (and then adjudged constitutional by the Supreme Court), abortion policy making may well continue to lie in the lap of the courts. This unsatisfactory situation can be seen to be both a cause and effect of another major problematic factor in Irish abortion politics: the seeming inability of Irish governments to come up with appropriate legislation regulating the conditions under which induced abortion can be performed in Irish hospitals.

The historical process in relation to Ireland’s journey to modernity which has been alluded to above placed a conservative sexual-moral discourse at the heart of Irish national identity. Although no longer hegemonic, this discourse is still sufficiently strong to prevent a just resolution to Ireland’s political difficulties with abortion. It was this discursive context which framed the abortion conflict as it was from the conservative sector of Irish society that PLAC emerged.

The thesis has sought to explain the exceptional nature of the Irish abortion debate along the following lines. Every modern society has its specific path to modernity which shapes its distinctive from of modernity. In the first instance, the Irish path was shaped by two great historical traumas: the Famine and Independence Civil War. The former helped to set in motion fundamental changes in land tenure and use and kinship patterns. It eradicated almost an entire class of landless labourers and its sub-culture of semi-pagan religious practices. The latter froze political alignments around the issues of Partition and the status of the new independent state. A combination of class economic interests and the requisites of nation-building gave the Catholic Church the opportunity to hegemonise the political discourse (without much active participation in politics) and place a conservative sexual-moral discourse at the heart of Irish national identity. This led to conservative political outcomes and inhibitions on the part of politicians for reform. The residual strength of this conservative strand of Irish identity partially explains why no legislative consensus between conservative-authoritarian and liberal-pluralist approaches to abortion has been reached, in contrast to most other liberal democracies.

The next stage of Ireland’s journey to modernity helps to explain the course which the Irish abortion debate has followed in the 1990s. In 1959, at the behest of Taoiseach Sean Lemass and the Secretary to the Department of Finance, T.K. Whittaker, a quarter-century of protectionist orthodoxy was jettisoned in favour of a strategy of export-led industrialisation. Some of the changes concomitant with the transition from an essentially pre-industrial to a post-industrial economy caused great anxiety. It was the growth of certain feminist information networks that provided the animus for the counter-right movement. For the real aim behind PLAC’s proposal to constitutionalise the right to life of the inborn was to put these “abortion referral” agencies out of business. As things turned out, the Catholic Right largely succeeded in this objective throughout the 1980s.

The abortion debate in Ireland thus pivots on this issue of the role of the Well Woman and Open Door centres. Irish feminism was never able to prioritise abortion on demand as a central rallying cry; they mobilised instead over the defence of these networks. The diffused and transformative impact of the women’s movement impacted on the Irish abortion debate in the 1990s in the following ways. The mainstreaming, professionalisation and institutionalisation of movement sectors and the diversification of activism into community groups and academia meant that there was a pool of activists and pre-existing networks within state bureaucracy and at grass-roots level that the Alliance for Choice and other groups radicalised by the X-case controversy could tap into. Such resources were not available to the Anti-Amendment Campaign. At the level of discourse, the movement’s effect on values and culture had meant there was a more relaxed atmosphere surrounding the discussion of sexuality and a greater willingness to address previously taboo subjects. Consequently, feminist/pro-choice groups could successfully mobilise around the plight of Ms X, the rights of Irish women to access non-directive pregnancy counselling facilities, their rights to travel to British abortion clinics and in opposition to the Twelfth Amendment proposal. Unlike 1981-83, they were setting the terms of debate.

This shift in the terms of debate is signified by the resistance within the political system to calls from the Catholic Right and the Church hierarchy for a further “pro-life” referendum. A silently acknowledged public policy priority for Irish politicians has been to ensure that barriers to access to British abortion clinics are removed while, in public, they are concerned to discourage “advocacy of abortion”. In this respect, the shift by Irish politicians away from compliance with the demands of the Catholic Right represents less a rupture with past practices than a movement within an existing field of discursivity. However, the behaviour of party leaders and governments reflects considerably more the desire not to alienate key groups of voters in a changing party configuration by taking excessively “liberal” or “conservative” stands on the abortion issue than deference to cultural sentiment. The referendum device affords them a convenient opportunity to avoid taking a definite stand although it has to be stated that the Fine Gael and Labour parties, who are currently in opposition, are now opposed to the holding of future referendums on the issue of abortion.

Postscript

Irish governments are still reluctant to provoke (although more prepared to resist the moral conservative elements in Irish society in the context of abortion. While these are no longer ascendant, they do remain ‘if mainly in a pre-mobilised state.’[10] Overall and perhaps more so in the Republic of Ireland than in any other democracy, the issue of abortion is a “lose-lose’ one for politicians.[11] This is the case in the Republic not least because any attempt to put forward legislation is liable to judicial review and would meet the certain opposition of the medical profession. For, under its ethical code, it forbids its members from carrying out abortions. Arising out of the various issues raised by the X-case, an interdepartmental working group was established under the aegis of the Department of Health and Children in 1997 to examine future options. The outcome was a Green Paper on Abortion published on 9 September 1999 which came up with seven options.[12]

To paraphrase Charles Haughey, the framer of a previous controversial law concerning human reproductivity, the 1979 Health (Family Planning) Act, the availability of the 1967 British Abortion Act continues to provide “Irish solutions to Irish problems” in relation to the issues raised by the Republic’s abortion conflict. Ireland’s cultural legacies, the dynamics of counter-movement activism and the countervailing influence of the judiciary are all plausible explanations for the dereliction of duty on the part of Irish politicians for their failure to come up with just legislative solutions to the difficulties generated by the Eighth Amendment and the X-case. But the presence of British abortion clinics and the ability of Irish women to access them with the removal of the judicial barriers acts as a disincentive to legislate.

[1] This case involved another pregnant girl-child; this time from a travelling family. In this case the child’s father objected to her having an abortion and, as a result of an application to the High Court in November 1997, she was made a ward of court by the Eastern Health Board. The courts made it clear that she could travel to Britain for the termination of pregnancy but that she may not have had it done in Ireland.

[2] This is apparent from the comments of leading PLAC luminaries at the time of the 1983 referendum campaign. For example, William Binchy noted that despite the fact that abortion was a crime in Ireland under the Offences Against the Person Act, 1861 ’the law relating to attempts tends to require proof of a virtually completed act rather than mere preparation, even if that preparation clearly points to the intended commission of the offence.’ He also remarked that ‘it did not appear that a person or an organisation assisting a woman to have an abortion by booking her into a clinic or buying her a plane or boat ticket to England is guilty of an offence’. William Binchy ‘Ethical Issues in Reproductive Medicine: A Legal Perspective” in Maurice Reidy,ed., Ethical Issues in Reproductive Medicine (Dublin: Gill and Macmillan,1987) pp.95-117. Another leading activist, Lorretto Browne, made reference, in the course of an “expose” by the International Planned Parenthood Federation to bring legalised abortion to Ireland, to ‘the fact that many thousands would not have recourse to abortion in Britain were it not for the referral agencies. Loretto Browne,’The Campaign to Legalise Abortion in 1983’ in Life Education and Research Network (LEARN), Abortion Now 1983

[3] The title of a sketch drawn by the cartoonist Martyn Turner on the day after the High Court ruling in the X-case Irish Times, 17 February 1992

[4] Tom Hesketh, The Second Partitioning of Ireland. The Abortion Referendum of 1983 (Dun Laoghaire: Brandsma Books,1990) p.281

[5] Elisabeth Porter, ‘Community and Responsibilities: Abortion in Ireland’; Sociology, 30:2 (May 1996), 279-98, p.290

[6] Anthony Clare, ‘The Abortion Debate. A Battle for the Nation’s Soul’. Sunday Independent, 12 March 1995

[7] Clare, ‘The Abortion Debate’

[8] Clare, ‘The Abortion Debate’

[9] Clare, ‘The Abortion Debate’

[10] Email correspondence with Yvonne Galligan, Department of Political Science, Trinity College Dublin, 23 February 1999

[11] Galligan

[12] These were to:

1. Introduce an absolute constitutional ban on abortion.
2. Amend the Constitution to restrict the application of the X-case judgement.
3. Leave matters as they are now.
4. Leave the Constitution as it is but legislate to restate abortion ban.
5. Legislate to regulate abortion as defined in the X case.
6. Revert to pre-1983 position of abortion banned under 1961 Offences Against the Person Act.
7. Allow abortion on grounds beyond those specified in the X case.

Irish Times, 11 September 1999