Friday, October 14, 2016

Legislation would clear the way for a repeal of the Eighth Amendment (Comment)

Polling in the 1983 referendum. Garrett Fitzgerald sought to leave abortion law subject to legislation in the Dáil and outside the scope of the Constitution: Pat Langan / The Irish TimesIt was in the early 1980s that the pro-life people approached Fianna Fáil asking that they promise an amendment to the Constitution to protect the life of the unborn baby.

Charlie Haughey easily agreed and had a text drawn up: “The State acknowledges the right to life of the unborn and, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”

Not to be outdone, Garret FitzGerald soon promised the same. After a lecture in Glenstal by Catherine McGuinness the following phrase was added, “with due regard to the equal right to life of the mother”.

Henry McAdoo, then Church of Ireland archbishop of Dublin, said that this was satisfactory and adequate. However Victor Griffin, dean of St Patrick’s Cathedral in Dublin, intervened in the opposite sense. 

This was unnecessary and broke the interchurch consensus.

In 1982 Garret FitzGerald became taoiseach and received advice from Peter Sutherland, his attorney general, that the text was ambiguous and dangerous. Haughey decided to stick with the text, “for base political reasons”, according to Dick Spring, the then tánaiste. 

FitzGerald, however, had an alternative text drawn up: “Nothing in this Constitution shall be invoked to invalidate, or to deprive of force or effect, any provision of a law on the ground that it prohibits abortion.”

This would have had the effect of leaving abortion law subject to legislation in the Dáil and outside the scope of the Constitution.

In a highly unusual fashion Archbishop Dermot Ryan of Dublin intervened and got the other bishops to endorse the Fianna Fáil text. This was decisive in returning 67 per cent majority in favour of the Fianna Fáil text. 

FitzGerald highlighted the two exceptions allowed by the Catholic Church: ectopic pregnancy and cancer of the womb. The official Roman Catholic view is that they are not exceptions; rather in those cases there was a double effect and the inevitable abortion was not directly intended. 

FitzGerald referred to those as two exceptions allowed by the Catholic church, saying that other exceptions were allowed by other churches.


Thus FitzGerald adhered to the Catholic position even while criticising it. This made sure Kevin McNamara, archbishop of Dublin by this time, could not denounce him.

Just before the referendum FitzGerald addressed the nation on television, saying that it was the most difficult speech he had ever given; he was recommending a No vote despite having earlier recommended Yes to the other text. 

For the few short years of his remaining life, Archbishop Ryan consistently opposed the taoiseach. A priest in the Dublin curia said to me that he was like a dog defending his territory.

Some years after the referendum was signed into law, Declan Costello in the High Court gave an order based on the text: a 14-year-old girl was not allowed to travel abroad for an abortion. The rest is well-known history. 

The Supreme Court allowed the girl to travel, saying that the threat of suicide was adequate reason. Since then there have been four referendums on the issue. 

It all goes to show that legislation would have been a more appropriate path as circumstances change so easily.

In France in1975, abortion was made legal after 12 weeks if two doctors were to testify that the patient’s health is endangered or there is a high likelihood that the foetus is handicapped by a non-curable serious illness.

Too liberal

It soon became evident that this was too liberal, so in 1994 multidisciplinary diagnostic centres were set up to decide which birth defects are severe enough to make abortion legal. 

If we passed a similar law making abortion illegal here from the beginning but with those French exceptions, then that would adequately protect the right to life of the unborn child and that of its mother while allowing termination for the distressing case of the deformed foetus. 

Then we could run a referendum to “repeal the Eighth”. 

It would be a tribute to the legacy of Garret FitzGerald. 

Many churchmen chose Charlie over the saintly Garret, rather as some people long ago chose Barabbas.

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