The committee on the Eighth Amendment went much further than some of its members or most
observers would ever have thought possible, writes Michael Clifford
AS THE new year cranks into full speed, let’s take a look at an interesting aspect of what will be one of the biggest domestic stories of the year.
Barring the fall of the Government, it looks like there will be a referendum on the Eighth Amendment this year.
A cohort of the population — around one fifth or so — has been waiting years for this opportunity to remove the provision in the Constitution protecting the unborn. Another cohort, now constituting around one seventh, has been looking to such a referendum with great trepidation. For the sake of this column the former will be referred to as the abortion rights cohort, the latter the anti-abortion cohort.
On December 20, the Oireachtas committee on the Eighth Amendment published its final report. The principal recommendation is that the amendment is repealed and replaced with legislation permitting abortion without reason for up to 12 weeks of a pregnancy. If, as seems likely, the Government and the Oireachtas approve the recommendation, that will be the choice facing the people.
Both sides in the abortion debate will battle vigorously to take the middle ground, that swathe of the electorate which is not entrenched in its views. This represents at least 60% of those who will vote. Therein the battle will be won and lost, and the future of abortion as an issue in this country decided for at least the next decade.
What is particularly interesting is the dynamic that will be at work to sway the middle ground. Past experience of referendums dealing with broad socio-sexual issues is that the appetite for change will lessen as the campaign progresses.
Look at the 2015 referendum on marriage equality. A month before the actual poll, an MRBI opinion poll found that the approval for the measure was at 72%, with only 20% planning to vote against it.
The referendum was passed by 62% to 38%. Nearly one in four votes opted to deny gay people the right to marriage, despite apparent widespread support for the measure and a superbly executed campaign by the marriage equality side.
The children’s rights referendum in 2011 was supposed to be a no-brainer in favour of providing more rights to minors. Yet 42% of an admittedly low electorate voted against it.
Anybody under the age of 40 would find it difficult to believe that in 1995 only 50.2% of the electorate voted to allow divorce in the country, despite the backing for the measure of nearly all the body politic, media and civic society, not to mention opinion polls.
What all of this suggests is that ordinarily, those campaigning for change require a huge lead before the run-in to the poll because that lead will inevitably shrink.
That’s the general trend. This time, however, there is a spanner in the works which may produce a contra dynamic.
When a two thirds majority of the Citizens’ Assembly voted last April to have no restrictions on allowing for abortion, there was considerable surprise. All of the opinion polls had suggested that such a policy would only be supported by around 20% of the electorate, yet here was a body representing citizens blowing that out of the water.
The anti-abortion lobby suggested that the assembly was loaded with those in favour of a liberal regime. However, there is also a compelling case that the members of the assembly were swayed in their thinking through being educated about the realities of abortion in the modern world, medical opinion and testimony from those affected by constitutional ban.
At the time, the general feeling around Leinster House was that the Citizens’ Assembly view would wither on the vine, that apart from anything else it wouldn’t have a prayer of being passed. Instead, the Oireachtas committee would emerge with a less liberal recommendation, more acceptable to the majority of people.
Things didn’t turn out that way. Whatever happened to be in the water in the various hotels where the Citizens’ Assembly met, turned out to be also coming out of the taps in Leinster House. The committee went much further than some of its members or most observers would ever have thought possible.
As it was with the assembly of citizens, so it was with the committee of parliamentarians. Those present educated themselves on the reality rather than the politics of the situation.
Two issues, in particular, were said to have been central to the decision.
The prevalence of the abortion pill, and its capacity to undermine any law, exercised great influence on committee members. The committee chairwoman, Senator Catherine Noone, was not alone in admitting that she knew practically nothing about the pill prior to the hearings.
The other issue was how to legislate for rape. Opinion polls suggest a change to allow abortion in the case of rape would receive widespread support. But the committee was informed that legislating for such a measure would be near impossible.
So the committee was swayed by what appear to be simply harsh realities, rather than any great shift in thinking about abortion rights or women’s rights.
In doing so, they acknowledged that modern technology, apart from anything else, has ensured that the country cannot continue to act in isolation in this matter, heads buried in sand, while the tides of change wash up on the national shore.
What it all implies is that once people become educated on the issue their views can and do change, and swing towards a more realistic, rather than liberal, view of abortion in the modern world.
That dynamic will be up against the customary one in referendums of a growing resistance to change, usually fuelled by fear.
The prospect of the availability of abortion up to 12 weeks will provide plenty of material with which to spread fear. It would certainly be a greater leap than that which was expected to be put to the people. This is the kind of battleground with which the anti-abortion cohort will be perfectly comfortable with. Expect them to repeatedly invoke images of abortion clinics setting up on every corner fronted by queues of women “demanding” a termination.
Confronting such a campaign in the kind of calm, reasoned manner required to properly educate will be difficult. It will require huge political savvy, patience and the kind of strategic approach that served the campaign for marriage equality so well.
It will demand a tone that appeals rather than lectures — putting forward the case for compassion rather than rights. And it will require that the creeping intolerance that is evident in some quarters of the abortion rights cohort is knocked firmly on the head.
Opinion polls constantly suggest that the majority now see the constitutional ban as out of step with the modern world, but there is absolutely no guarantee that they will vote for the change that is likely to be proposed. As such, the respective campaigns in this one will be fascinating and decisive.
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