Expect much heat and little light from the next three days

THE Oireachtas health committee meets today to begin three days of public hearings from legal, medical, and religious representatives and groups advocating both anti-abortion and pro-choice views.

According to its chairman Jerry Buttimer (FG), the committee aims to provide a mechanism for people to engage with the process and help frame the legislation for the restricted introduction of abortion based on the Supreme Court’s 1992 decision in the X case.

This seems a rather optimistic view, though, as while the committee will compile a report on the submissions it receives, it will not make any recommendations. The ultimate decision on what the legislation will initially look like remains the prerogative of James Reilly, the health minister.

So we will have a report which will summarise the extremely polarised positions on the issue and leave it up to the minister and his coterie of advisers, and ultimately the Cabinet to decide.

This is not the fault of the committee, but what exactly are they there to do, given that they cannot make recommendations? One wonders what can possibly be said to shape the legislation that has not already been elucidated over the past 20 years since the X case. It is an exercise in more lengthy soul-searching by the Oireachtas in the hope that someone, anyone, can come up with a formula to take abortion off the political agenda in Ireland once and for all.

Mr Buttimer has rather wisely, if again optimistically, called for responsible and tolerant debate and appealed to participants not to trade insults. Good luck with that, for if any debate in modern Ireland is open to insults, it is abortion, the X case, and the eighth amendment to the Constitution. We can expect much heat and little light from the next three days.

The Catholic archbishops seem to have already made up their mind that any legislation will inexorably be “the first step on the road to a culture of death”, as Bishop Leo O’Reilly of Kilmore rather exotically described it.

We know what the anti-abortion and pro-choice groups will say. The lawyers will tease out the wording and implications of both the amendment and the X case and come to different opinions, as will the medics.

On the political front, Fianna Fáil leader Micheál Martin, in a classic de Valerean case of looking into his own heart and knowing what the Irish people believe, has declared without a shred of evidence that the majority of Irish people fear the inclusion of suicide as legal grounds for a termination could lead to “abortion on demand”.

Some politicians in Fine Gael certainly believe it and have not been afraid to say so either. But where this idea of abortion on demand came from is one of the great mysteries of our politics.

In Ireland, restrictive abortion legislation had remained intact and virtually unchallenged since 1861 under section 58 of the Offences against the Person Act. Why, if such a situation existed, did the then Fine Gael-Labour government, supported by Fianna Fáil and using that party’s wording, put a deeply divisive referendum to the people in 1983, when there had been literally no calls for any repeal of the existing legislation?

The so-called pro-life campaign in 1983 was pre-emptory in that its aim was to prevent the future legislation of abortion in Ireland. It anticipated that abortion might become legal through either parliamentary action or court activity or both, notwithstanding that the idea of replacing the existing act with a more permissive or liberal act was simply not an option any government would be willing to sign up to or even want to do.

The pro-life campaign feared that if abortion was not constitutionally prohibited there would be a danger that an action could be taken in the Irish courts to challenge the then existing legislative prohibition of abortion in an attempt to have it declared unconstitutional. This was all rather far-fetched, as Garret FitzGerald himself admitted afterwards in his memoir.

In essence, the original referendum on abortion came about quite simply due to the incessant lobbying of a number of highly vocal interest groups. Crucially, these lobbyists had access to political elites and persuaded them that the legal ban on abortion could be overturned in the courts and thus a constitutional ban on abortion was imperative. We are still living with the consequences.

In the Ireland of 1983 there was never a likelihood of abortion on demand, and the same position remains 30 years later. No Supreme Court decision in the history of the Irish State has caused as much controversy as the X case. Many believe it to be fundamentally flawed. But a decision of the Supreme Court it is, and if we are really to be a representative democracy we should legislate for that decision made by the highest court in our democracy.

Over the next three days we are likely to hear all the same arguments we have heard over the last 20 years.

The best thing that the health committee could do once its hearings are over is to just tell the Government to legislate for the decision and to do it promptly.

By failing to face down the lobbyists in 1983, the political elites failed the country. They shouldn’t do so again 30 years later.

* Prof Gary Murphy is head of the School of Law and Government at Dublin City University.