As Pat Buckley reported on my blog earlier this week, some people are being misled into believing that the current threat of abortion legalisation in the Republic of Ireland is due to the defeat of the proposals put to the Irish people regarding abortion in the 2002 referendum. Nothing could be further from the truth.
Here's an analysis of what was at stake written in March 2003 by Robin Haig, the chairman of SPUC, and former chairman of the Association of Lawyers for the Defence of the Unborn (ALDU), a body which enjoyed a membership of around three thousand lawyers. For a footnoted version of the original paper, do write to me at the address below.
Irish Referendum 2002: Proposed 25th Amendment to the Irish Constitution. Comment from Robin Haig, Chairman of SPUC and ALDU
It has become clear that the proposed 25th Amendment to the Irish Constitution and SPUC’s reasons for supporting the “No” campaign in the referendum have not been explained adequately.
The referendum proposed the introduction into Irish law of the Protection of Human Life in Pregnancy Bill 2002 (the Bill). Almost before the “Yes” and “No” campaigns got under way SPUC began to be contacted by individuals and groups from both the North and South of Ireland deeply concerned by the way the proposed amendment would if accepted, damage Ireland’s Constitutional protection for human life from the time of conception. I was contacted by members of ALDU who were similarly concerned.
SPUC’s Constitution, approved by Council many years ago, makes it quite clear that the Republic of Ireland is one of SPUC’s principal areas of activity. SPUC has worked in Ireland in the past and to very good effect. It was proper that on this occasion SPUC should respond to the requests it was receiving and that it should lend what assistance it could.
The amount of information and authoritative advice available to SPUC was voluminous and continued to grow as the campaign progressed. All of it has confirmed the rightness of SPUC’s support for a “No” result. Among the Irish people there was a difference of political opinion about the referendum proposal with some well-intentioned pro-life people and groups on the “No” side, some on the “Yes”. This difference of opinion has led to attacks on SPUC’s stand but SPUC has not cast any such aspersions on those supporting the “Yes” campaign. However SPUC remains convinced of the rightness of its case. There was a long and informed debate about the referendum and SPUC’s involvement in it, at the March 2002 National Council meeting when the action in Ireland was approved with acclaim.
The support in Ireland for the referendum proposal was not surprising. The main declared aim of this proposal was to close a loophole in Irish abortion law resulting from an earlier court decision which appeared to allow abortion to be carried out if the pregnant mother threatened to commit suicide. But the question remains, “Why did the new law contain so many concessions?” For example:
The new law would have introduced into Irish law a definition of abortion as the intentional killing of unborn children “after implantation”. As a purely factual definition, this is untrue. No one should be asked to vote for an untruth.
This false definition was preceded in the Bill by the words “In this Act” and it was claimed, therefore, that this definition was limited to be used within the narrow confines of this particular law alone. In practice, however, what this law would have done, had it been approved in the referendum, would have been to enshrine this false definition of abortion at the heart of the Irish Constitution. It is no coincidence that in September and October 2001, just as the referendum proposals were being published, the Irish Medicines Board was considering an application to licence the morning-after pill in Ireland. Approval was given to the m.a.p. on the mendacious ground that the m.a.p. is a contraceptive not an abortifacient. In connection with the application the Medical Director of the Irish Medicine’s Board advised the Board that, “The proposed referendum on abortion helps to clarify the issue in that it proposes to define an abortion as occurring after implantation of a fertilised egg”. There is no acknowledgement here that this definition was intended only to be applied to that specific law. And yet, this statement was made on 24th October 2001, only weeks after the draft law was published, months before the referendum was due to take place, long before the law might come into force, a law which will not now even come into force at all. This definition was never intended to be limited to the circumstances “In this Act” but had been introduced to be used, as here, to legitimise the killing of and experimentation upon human embryos.
The new law would have repealed the Offences against the Person Act 1861, which is the underlying law (subject to the Irish Constitution) which prohibits abortion in Ireland. Much was said to down-play the significance of this change – the 1861 Act was said to be an anachronism and it was said that the Constitution contains other protective measures. The same 1861 Act still applies also in the United Kingdom and especially in Northern Ireland where the Abortion Act 1967 does not apply at all. The Abortion Act has largely undermined the 1861 Act in the remainder of the UK but not in Northern Ireland and pro-lifers in Northern Ireland were rightly concerned at proposals to repeal the Act in the Irish Republic. The repeal of the Act would have had symbolic connotations in the whole of the U.K. and indeed in many parts of the former British Empire where laws based upon the 1861 Act still apply.
The law would have allowed abortion to be carried out by doctors where “in the reasonable opinion of the practitioner [it is] necessary to prevent a real and substantial risk of loss of the woman’s life other than by self destruction.” It was established in English law as long ago as 1939 that saving a woman’s life was (in the context of abortion) interpreted by the Courts to mean preventing her from becoming “a physical or mental wreck”, in other words a much wider interpretation than simply preventing her death. There is every reason to suspect that a similar interpretation would be given in Ireland.
What is more, the new law would have required the medical practitioner to form his opinion acting “in good faith”. That phrase, which occurs in the UK Abortion Act, is the reason, above almost all other reasons, why we have abortion on demand in the UK. However stupid, foolish, even negligent the doctor may be shown to have been in reaching his opinion, it is almost impossible to challenge the doctor’s assertion that it was given in good faith. This provision in the proposed new law, would have given Irish doctors wide powers of interpretation to decide whether or not, in their opinion, an abortion was justified. Abortionists would have leapt through this open door with glee.
The Bill would have underlined in Irish statute law the right for Irish women to travel abroad to have abortions. Whether or not this provision would have made any practical difference to what is actually happening (Irish women are already travelling abroad for abortions) there seems to be no good reason why this provision should have been included in the Bill nor why any pro-lifer should be expected to vote for it.
The proposed new law was extremely complex. One legal journalist described the language of the proposed law as “complex to the point of obscurity” with one 125 word sentence being “incomprehensible to everyone except legal experts.” Even the supporters of the new law admitted its complexity. The Chairman of the Pro-Life Campaign wrote, in a letter to the press “the proposal was complex, easy to misrepresent, took time to digest, even with the best legal advisers, requiring knowledge of the Irish Constitution and Gaelic”. And yet the Irish people (only a tiny percentage of whom speak Gaelic) were expected to vote for it with a simple “Yes”.
It is true that the Irish Catholic Bishops had recommended that the people should vote for the referendum and it was no easy matter for SPUC to disagree with that recommendation. The Bishops took the view that closing the “X case loophole” was worth the compromises that they believed had to be made. Many other people shared that view and neither I nor SPUC criticise that for one moment. No one has a monopoly of insight. Nevertheless, the referendum was a political, not a religious issue. The Bishops themselves made it clear that the referendum proposal was not perfect and that further measures would be required to secure better protection for unborn children. They also made it clear that a decision how to vote in the referendum was a matter of personal conscience. There was room for difference of opinion and it was entirely proper for SPUC and many other influential pro-life people to hold a contrary view. This is not a question of disloyalty to the Church on the part of those pro-lifers who are Catholics and SPUC would have no part in encouraging disloyalty on the part of Catholics or anyone else.
There was no more loyal servant of the Catholic Church than Mr Justice Rory O’Hanlon, a former Irish High Court judge and a very well known and experienced pro-lifer in Ireland, who died in the Spring of 2002. He was reported as having said that he “would not support a measure which was contrary to the moral teachings of the Catholic Church.” When he saw the referendum proposal he described it as, “the most serious attack yet witnessed on the integrity of our Constitution” which he argued would “definitely liberalise Irish abortion law greatly so as to increase abortions in Ireland.” He said, “The proposal is intrinsically evil.”
Although I do not agree with the assessment made by the supporters of the referendum proposal of its likely effect I do not criticise them nor do I bear them the slightest ill will – neither does anyone else in SPUC. We maintain that now more than ever before, all people of goodwill must work together to promote the culture of life.
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