28 February 2002 Edition
With less than a week to polling, the electorate is as confused as ever about the government's referendum. The fault lies with those who drafted this unwieldy proposal and the politicians who rushed it all through without proper time for debate. We now face a proposal seeking to insert legislation in the Constitution that even its supporters cannot properly explain.
Confusion over the status of the IUD and morning after pill, pro-life campaigners on both sides of the argument and claims and counter claims from politicians about the calamitous results of Yes or No votes have thoroughly confused voters.
Whatever the outcome, some 6,000 women every year will still leave Ireland to have their pregnancies terminated. The fact is that this referendum proposal is a backward step taken by the government for reasons of political expediency rather than any real commitment to Irish women or the unborn.
Its core objective is to reverse the X Case judgment by eliminating suicide as a ground for legal, life-saving abortion in Ireland. This is despite the fact that the protection afforded to girls and women by the X Case judgment has only come into play once. That was in the C Case in 1997. The High Court granted the girl at the centre of that case the right to travel based on the X Case judgment.
If this referendum is passed, the safety net provided by the X Case judgment will be pulled away. Should a future C Case arise, the life of the girl at the centre of such a case would be put at serious risk. The X Case judgment has not opened the floodgates in the past ten years. It may, however, have prevented two young girls, both victims of rape, from committing suicide.
Sinn Féin is calling for a No vote because republicans are not prepared to take away what little protection there is for girls and women in a crisis pregnancy situation who are suicidal.
Writing in the Irish Times on Wednesday, Vincent Brown discussed the situation of a women pregnant following a rape. "Why should unconsensual motherhood attract any moral obligation, let alone an obligation backed up by the criminal law?" he asked.
This referendum is flawed.
The proposals don't adequately address or resolve the complex issues involved.
They don't have due regard to the equal right to life of the mother.
They seek to overturn the Supreme Court judgement in the X Case and eliminate suicide as a ground for access to abortion.
They will criminalise women who, for whatever desperate reasons, choose the option of abortion.
They are possibly unconstitutional.
Finally, the Constitution is not the appropriate place to deal with this complex issue. This referendum should be rejected and legislation introduced to implement the Supreme Court decision in the X case.
Vote No on Wednesday 6 March.
A voter's guide to the 6 March referendum
BY KERRY LAWLESS
So what is the referendum all about?
On Wednesday 6 March, a referendum will be held on the 25th Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001.
What will I be asked when I go to vote?
When you go to vote you will be asked to vote YES or NO to the following question:
"Do you approve of the proposal to amend the Constitution in the undermentioned Bill? Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001."
What is the Protection of Human Life in Pregnancy Bill, 2001?
The Bill contains the proposed changes in the Constitution and the proposed text of the Protection of Human Life in Pregnancy Act, which, if passed, will be the law on abortion. This article is an attempt to explain the main changes.
The words of the Act itself will not be added to the Constitution but they will have the same status as words in the Constitution. This means that the Act may only be changed if the people agree to the change in another referendum.
But isn't abortion illegal already?
Yes. The present law is contained in sections 58 and 59 of the Offences Against the Person Act, 1861. The word abortion is not used - the term used is to "procure a miscarriage". Put simply, the effect of these sections is that it is a criminal offence for a woman to procure a miscarriage, or for any person to perform an abortion or aid or abet the woman in procuring the abortion.
In addition, following the referenda in 1983 and 1992, the present subsection 40.3.3¡ of the Constitution states:
"The 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.
This subsection shall not limit freedom to travel between the State and another State.
This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services available in another state."
These provisions will remain in place whether or not the referendum is passed.
So is this the referendum to end all referenda?
Probably not. As the Referendum Commission booklet explains: "Law is not a science. It is expressed in words which may be interpreted differently by different people and at different times. It is often not possible to be absolutely certain exactly what the effect of a new constitutional wording or a new law will be."
So why use the Constitution then?
Good question! Sinn Féin, along with the majority of political parties, believes that successive referenda have shown that the Constitution is not the place to deal with the complex issue of crisis pregnancies and abortion.
What does the Referendum propose to change?
If you vote YES, suicide will no longer be a ground for a legal termination of pregnancy.
A YES vote will overturn the 1992 Supreme Court decision in the X case, which was the first case that required the courts to interpret the meaning of subsection 40.3.3¡ (At the time, only the first paragraph of the subsection above was in the Constitution).
In 1992, a 14-year-old girl became pregnant as a result of rape and was suicidal. The government refused to allow the girl and her parents to travel abroad for an abortion. There was a national outcry and over 10,000 people took to the streets to protest. The case went to court and the Supreme Court ruled that "a termination of pregnancy is lawful if it can be shown that there is a real and substantial risk to the life, as distinct from the health, of the mother which can only be avoided by terminating the pregnancy; a threat of suicide can amount to a substantial risk to the life of the mother."
One clear consequence of a YES vote will be that being at risk of suicide will not be considered a valid reason to seek an abortion.
So what else happens if I vote YES?
It will not be legally possible to have a pregnancy terminated if the pregnancy results from rape or incest.
There will be a new legal definition of abortion. Medical procedures necessary to save the life of the mother will not be considered to be abortion in its criminal sense.
However, if a person has an abortion in Ireland, attempts to have an abortion, carries out an abortion or aids, abets or procures anyone to carry out an abortion, he/she may be prosecuted and convicted of a crime in Ireland. The penalty will be a maximum of twelve years imprisonment or a fine or both.
Twelve years? Isn't that extreme?
The Mother and Child Campaign believe its too low as in Britain, for example, the maximum sentence is life imprisonment. However, legal groups are concerned about the proposal in the context of other Irish sentencing patterns. In theory, a women could be raped and become pregnant as a result. Her attacker could get a four-year sentence and if she has an abortion in Ireland she could get twelve years.
Surely that would never happen?
Are you willing to take the chance?
If I vote YES can these laws ever be changed?
Yes, but only if the change is agreed in another referendum. Most Acts of the Oireachtas may be changed by the Oireachtas but this Act will be exceptional. It may only be changed if the people agree in another referendum.
What about women with cancer or other life threatening illnesses?
The proposed referendum does not include; "the carrying out of a medical procedure by a medical practitioner at an approved place in the course of which or as a result of which unborn human life is ended where that procedure is, in the reasonable opinion of the practitioner, necessary to prevent a real and substantial risk of loss of the woman's life other than by self-destruction".
What is an "approved place"?
Good question. The government will make orders setting out what are approved places and it is expected that these will be the main maternity hospitals and other hospitals. However, the orders must be approved by both houses of the Oireachtas (the Dáil and the Seanad) before a hospital is considered an "approved place".
What happens if you are in a rural area?
Another good question. The National Women's Council gives examples in its information booklet on the referendum of how women will be affected. One is as follows:
Catriona is 38 years old. She lives in Castletownbere, County Cork. Four months into her pregnancy she begins to haemorrhage. Her local GP realises that her pregnancy cannot continue and that she must have a D and C, to stop the bleeding. This will result in the termination of the pregnancy. The nearest "approved place" is in a hospital in Cork 80 miles away. Catriona is bleeding too heavily to travel that distance.
Not much time for the Dáil and the Seanad to nominate a closer hospital as an "approved place"?
Exactly. Most medical support for a NO vote centres on the lack of clarity about this and the lack of provision for cases of emergencies.
Will voting YES or NO stop women travelling to Britain.
Women with the means and money to travel will still do so. This referendum does nothing to address the issue of abortion or the fact that at least 6,000 Irish women each year travel to Britain alone for abortions.
Wouldn't the Crisis Pregnancy Agency stop this?
The agency has a role in providing education aimed at reducing the number of crisis pregnancies. However, Sinn Féin and others believe that its role will be inadequate, as it will not address the financial issues and support services that parents need. Also, abortion is a reality in Ireland today. Whatever your personal sincerely held views on the issue of abortion, Irish women do and will continue to decide that they cannot continue with their pregnancies. Put bluntly, the existence of a Crisis Pregnancy Agency will not stop women from choosing abortion.
So it's all about the location of the abortion rather than the abortion itself?
It would seem so, yes.
So what happens if I vote NO?
The Constitution remains the same and the legal interpretation of the Constitution, which has served well for the last ten years, will remain in place. The government will need to find a workable consensus-based way of addressing the very complex issue of crisis pregnancy.
Does a NO vote mean a vote for abortion?
No. A NO vote means that the present Constitutional wording and the present law will remain in place. The liberal abortion regime warned of by Fianna Fáil and the Pro-Life movement if the referendum is defeated is not borne out by the experience of the last ten years, in which there hab-ve been no legal challemnges in this direction.
In the event of a NO vote, the Oireachtas could subsequently pass a law dealing with abortion but it would have to accord with the present interpretation of the Constitution, which outlaws abortion except in the case of the threat to the life of the mother. This would mean a threat of suicide would be a ground for a legal abortion but the Oireachtas could regulate the circumstances.
Why is the Pro-Life movement divided?
The Protection of Human Life in Pregnancy Act defines the legal interpretation of abortion. If there is a majority YES vote in the referendum, then this new definition will replace the existing law on abortion.
The proposed new legal definition is that abortion means the "intentional destruction by any means of unborn human life after implantation in the womb of a woman".
This would suggest that life be defined as beginning at implantation, not conception. Political commentators have suggested that the mainstream Pro-Life movement is not happy with this interpretation of when life begins but would appear to accept it as a trade off with the government: Fianna Fáil and the PDs agree to actually holding the referendum and the Pro-Life movement doesn't object to the legal protection applying post implantation only.
The Mother and Child Campaign, on the other hand, claim that "all genuine Pro- Lifers recognise that anything which prevents implantation in the womb is an early abortion".
So will it protect the morning after pill and IUD?
Not according to the Irish Family Planning Association. The Referendum Commission also believes it is open to question. This is further confirmed by the Catholic Bishops' statement. The Catholic hierarchy believe that such forms of contraception are "contrary to the moral law" and are open to challenge in the courts irrespective of whether or not the referendum is passed.
The Mother and Child Campaign also make the point that the definition will "pave the way for a massive extension of IVF in Ireland, as well as allowing for embryo research".
More sinisterly, the Pro-Lifers calling for a NO vote do not trust the wording. They fear the term 'medical procedures' could be interpreted to mean abortion. The Referendum Commission agrees that the law does not specify precisely what those medical procedures are. Effectively, this will be a decision for doctors to make.
In addition, the Mother and Child Campaign object to what they see as the "copperfastening of the right to travel and right to information on abortion services".
But didn't we vote for those rights in 1992?
Yes, but it seems "the Irish people were confused enough in 1992 not to be fully conscious of what they were voting for", according to the Mother and Child campaign anyway.
So why don't the Pro-Life Campaign have the same objections?
They believe the proposed wording "restores the legal protection to the unborn" by removing the threat of suicide as a ground for a legal termination of pregnancy. They don't believe that suicidal women should be allowed the option of abortion as "abortion is not an appropriate response to suicidal feelings".
More importantly perhaps, they fear that the threat of suicide is the thin edge of the wedge and that without the proposed change to the constitution future legal interpretation of the constitution will liberalise as social attitudes to abortion change.
They believe the proposed wording "clarifies the law, gives legal certainty and protection to good medical practice".
But aren't doctors and lawyers divided on this?
Yes. There are huge levels of uncertainty as to what the consequences will be, both medically and legally.
Why are we having this referendum anyway?