DANIEL MCCONNELL: Reform of the deeply flawed 1983 amendment a tall order for Simon Harris

AT THE 1982 Fine Gael ard fheis, hard-line conservative TD Alice Glenn praised her party leader’s support for a pro-life, anti-abortion referendum, should the party be elected into office later that year.

Picture credit: Garret FitzGerald said he regretted his involvement in the 1983 Eighth Amendment referendum; Peter Sutherland expressed grave reservations about the 1983 amendment; Current Health Minister Simon Harris faces the possibility that if he goes too far too quickly on the referendum issue, the anti-abortion side will seize upon any mistake and will scaremonger the country into opposing whatever question is put to the people.

“We in Fine Gael can be very proud in fact, that Dr Garret FitzGerald was the first of our political leaders to accept the legal basis for this amendment,” she declared from the podium.

FitzGerald was no hardline conservative. He saw himself as the driver of Fine Gael’s liberal crusade and only agreed to accede to the referendum under pressure from pro-life elements in his party and within his own cabinet.

It would prove to be a politically and legally poisonous decision.

Defenders of the controversial 1983 Eighth Amendment would do well to remember its deeply flawed origins and passage into law.

The state papers released in 2013, under the 30-year rule, showed precisely how legally flawed the amendment as put to the people was and is. The then-attorney general Peter Sutherland expressed his grave reservations about the proposed amendment, the wording of which had originated in Charles Haughey’s Fianna Fáil-led government which lost power a few months previously.

“The wording is ambiguous and unsatisfactory. It will lead inevitably to confusion and uncertainty, not merely amongst the medical profession to whom it has, of course, particular relevance, but also amongst lawyers and more specifically the judges who will have to interpret it. Far from providing the protection and certainty which is sought by many of those who have advocated its adoption, it will have a contrary effect,” he said.

“Further having regard to the equal rights of the unborn and the mother, a doctor faced with the dilemma of saving the life of the mother, knowing that to do so will terminate the life of ‘the unborn’, will be compelled by the wording to conclude that he can do nothing. Whatever his intention, he will have to show equal regard for both lives and his predominant intent will not be a factor. In these circumstances, I cannot approve of the wording proposed,” he added.

Sutherland sought to propose an alternative wording or “confirmative proposal” which sought to give a constitutional ban on abortion without affirming the right to life of the unborn.

What the 1983 papers revealed was a huge clash of opinions between Sutherland and the then justice minister, a young Michael Noonan, who feared Sutherland’s proposal would not satisfy the traditional elements within Fine Gael or Fianna Fáil.

Ultimately, the Dáil rejected an alternative wording and so, in the end, the deeply flawed form of words to which Sutherland had so strongly objected were the words which were voted upon by the people and the words which currently lie as Article 40.3.3 in our Constitution.

Given all that went on and how divisive the referendum campaign was, FitzGerald would later acknowledge his mistake in allowing the referendum to go ahead.

“I regret ever getting involved in it, in the beginning. That was the mistake,” Fitzgerald later said about his commitment to run the divisive referendum.

Ireland of 2018 is a starkly different place to the Church-dominated land of the late 1970s and 1980s. However, the opposition and concern over abortion remain real and widespread.

Despite plenty of newspaper opinion polls suggesting wide support for a liberalisation of our abortion laws, where to draw the line is not an easily answered question.

On Tuesday the Cabinet is set to formally adopt the committee on the Eighth Amendment’s report, published the week before Christmas, as its formal position on abortion.

The committee’s proposals include repealing the Eighth Amendment, which places the life of the unborn on an equal footing to the mother, and permitting abortions up to 12 weeks’ gestation. The report outlined the committee’s belief that it was too problematic to legislate for abortion in certain circumstances.

The committee’s report said women find it difficult or impossible to report rape or sexual assault. It therefore believes it would be unreasonable to insist on reporting as a precondition to terminate a pregnancy that has resulted from rape or sexual assault.

“In view of the complexities inherent in legislating for the termination of pregnancy for reasons of rape or other sexual assault, the committee is of the opinion that it would be more appropriate to deal with this issue by permitting termination of pregnancy with no restriction as to reason, provided that it is availed of through a GP-led service, delivered in a clinical context as determined by law and licensing practice in Ireland, with a gestational limit of 12 weeks.”

It also agreed that terminations should be made available in the cases of fatal foetal abnormalities.

However, the report noted it was the job of the Government to set gestational limits but said it should be guided by best medical practice.

The report said it is the committee’s belief that the Protection of Life During Pregnancy Act has created significant difficulties, some of which can only be addressed if the committee’s recommendations are adopted.

At Cabinet, Health Minister Simon Harris will seek to outline what would replace the Eighth Amendment should it be repealed, in terms of legal parameters.

Along with current Attorney General Séamus Woulfe, Harris is responsible for finding a legal formula that seeks to address all eventualities of a referendum result, while trying to avoid the calamities of what happened in 1983.

He also has to clear up many of the legal ambiguities created by the 2013 Protection of Life During Pregnancy Act, which was another grand political fudge which only complicated the lives of medical practitioners working in our maternity hospitals.

As referenda in Ireland are rarely about the core question being asked, the danger for Harris is that if he goes too far too quickly, the anti-abortion side will seize upon any mistake and scaremonger the country into opposing whatever question is put to the people.

So while the core question of repealing the Eighth Amendment may be straightforward, the 12-week limit is the obvious line of attack for opponents to reform.

Taoiseach Leo Varadkar, in a Christmas briefing, said he expects all his ministers to unite and at least pose the question to the people, but that they will be free to dissent on the merits of that question, should they see fit.

That position poses its own difficulties. Will we witness similar dissention to that seen with former taoiseach Liam Cosgrave, who voted against his own government’s Family Planning Bill, introduced by former minister for justice Patrick Cooney? Cosgrave was a pious Catholic and simply could not contemplate voting against the dictates of his Church.

Whatever Harris brings forward, it faces the challenge of needing to address the political appetite to move on the Eighth Amendment and to provide legal clarity and certainty for medical practitioners. It is a tall order and there is no certainty that Fine Gael’s gaffe-prone ministers can avoid making a mess of it.

While the exchanges at the Oireachtas committee were somewhat divisive and sometimes unnecessarily personal, they were far more muted than many expected. This would lead to some hope that a civilised campaign on a highly emotive issue is possible.

Yet, any error from the Government could swiftly see it plunge into a chaotic shambles which would serve no one, and certainly not those most directly affected by any possible change in law — those women who have to consider an abortion.

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