What are pregnant women to do? What are the parents of a pregnant girl under age to do? What are the medical profession to do? They have no guidelines save what may be gleaned from the judgments in this case. What additional considerations are there? Is the victim of rape, statutory or otherwise, or the victim of incest, finding herself pregnant, to be assessed in a manner different from others?”
They were the words of Judge Niall McCarthy in the Supreme Court, 20 years ago. His famous judgment on the X case asserted passionately that legislation was urgent. And if it was urgent then, how much more urgent is it now? And yet. When you have to choose between doing a thing fast and doing it right, it’s almost always better to do it right. Think bank guarantee, think bailout. Every time government is rushed into something, or allows itself to be, the result is nearly always disastrous.
In Ireland, this is absolutely the case when it comes to the State’s approach to the termination of pregnancy.
Five times we have addressed this issue. Five times the people have made decisions on the matter. In no other country in the world have there been five different referenda on one subject. That is our unique distinction.
In 1982, in the context of a general election campaign, Charles Haughey and then Garret Fitzgerald both capitulated to pressure from a newly formed pro-life movement who insisted on the insertion of an anti-abortion clause in the Constitution. (To his eternal credit and long-lasting cost, Dick Spring was the only one of the major party leaders of the time who refused to accept an untested wording in that election.) Although Fitzgerald later changed his mind, the pro-life movement’s wording was put to the people and adopted by them – probably the only time in our history that a form of words not crafted by the Government of the day was enshrined in the constitution.
The X case, as we all know, turned the pro-life victory into a pyrrhic one. They had thought they had secured an absolute ban on abortion in all circumstances, but the Supreme Court in the X case decided that the life of a woman was important too — far too important to be left without legislation. The Government of Albert Reynolds responded to the Supreme Court’s judgement in the X case by putting three different questions to the people, in three separate referenda. The people were asked to decide that the threat of suicide would not in future constitute grounds for an abortion, and they said no to that, decisively. The people supported the Supreme Court in that decision. On the other hand, the people agreed that it would always be lawful to travel abroad for an abortion, and that it would always be lawful to access information about abortion.
And then 10 years later, in 2002, the Fianna Fáil-PD coalition tried once again, in a further referendum, to remove the threat of suicide as a ground for abortion. Again, the people said no.
There is only one conclusion to be drawn from these five decisions, all made by the people by substantial margins. We live in a country where the people have decided, very clearly and very explicitly, that we fundamentally value the lives of unborn babies. The people have also decided, equally clearly and explicitly, that we do not want under any circumstances to prevent any woman who wishes to terminate her pregnancy abroad from doing so. And the people have decided, again clearly and explicitly, that no woman whose life is in danger — for whatever reason — should be denied a termination here at home.
That’s a clear and unequivocal position. And it’s the position of the Irish people, as expressed time and again in the ballot box. Some have described it as hypocritical — a desire to export the issue. Others have said it’s the only possible course for us to take, given our history and culture.
Over the last few days, in the wake of the dreadful tragedy that befell Savita Halappanavar, there have been thousands more calls for reform of our abortion law.
Perhaps it’s not reform we’re talking about, but action, at last, in response to the words of Niall McCarthy 20 years ago. He said then, and we know it is true, that it is unconscionable that any woman should ever find herself in pain and suffering, at risk to her life, because of a pregnancy that has gone wrong.
I strongly believe that as part of any decision about what we do next, we really do need to know what happened over that fateful few days in the Galway University Hospital. It appears to be the case that it was clear to everyone involved that Savita was suffering terribly. Some or all of her medical team appear to have taken the view that her suffering was not enough justification for them to intervene. Perhaps they thought that although she would suffer, she wouldn’t die. How can it be possible that we have ended up in a position where a woman must suffer, for days on end, without relief, as long as her medical team is satisfied that she won’t die? How can it be that we have put medical professionals in the position that they believe they cannot end the suffering without putting themselves in jeopardy? Knowing the facts is essential. But it won’t absolve us from addressing the failings in our law. We have to do it while remembering our recent history in this area.
OVER the weekend I’ve heard endless commentators talking about the issue as if it was simple politics, and it’s anything but. Whatever decision is made now will involve all of the more thoughtful members of our Oireachtas in painful reflection and hard political choices.
To talk about some politicians “funking the issue”, or lacking leadership, is to grossly, and crassly, oversimplify it. Eamon Gilmore is absolutely right when he says that doing nothing is not an option. But Enda Kenny is equally right when he says he won’t be rushed.
To some, it might seem that the simplest thing to do initially is to publish the expert group report that was delivered to government last week, and allow the public to read it, digest it, and debate it. That’s normally the course I’d favour myself. But I’d want to be sure it was written in English, that it was clear in its recommendations, and that it contained a map of the minefield through which the politicians and the people must walk.
What if it’s highly technical and legalistic? What if the members of the expert group weren’t in the end, able to agree? What if it recommends another referendum? Will we all be better off if all we get is a set of headlines and endless debate about abstruse content? Yes, we must act fast. We owe that at the very least to those who have died in suffering. But for everyone’s sake, let’s try and get it right this time.