The proposed amendment was called the "Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001"
This was one of the most divisive referendums ever to be presented to the Irish public. The proposals said little about saving the life of both the mother and the child, and much about the 'destruction' and 'ending' of unborn human life. The following is a brief analysis of the implications of the various elements.
An outline of the proposals
There were five main elements to the Government's proposals:
1. The apparent prohibition on suicide as a ground for abortion.
2. The acceptance of "medical" grounds for abortion.
3. The legalization of early (pre implantation) abortions.
4. The endorsement of the right to travel for the purpose of abortion.
5. The repeal of sections 58 and 59 of the Offences Against the Person Act, 1861
It was claimed for the proposals that they would reverse the 'X' case judgement. In our opinion, the 'X' case judgement may have been narrowed in one respect (relating to suicide), but it would have been widened in other respects; and the balance was overwhelmingly to the detriment of the unborn child.
Apparent prohibition on suicide as a ground for abortion
Expert evidence given to the All Party Oireachtas Committee suggested that it would require corrupt complicity of medical and legal professionals to make extensive use of suicide as a ground for abortion and this has been repeated many times since.
The acceptance of "medical" grounds for abortion
The Government proposals asserted that:
This clause represented legislation for the 'X' case, (excluding suicide), and is a liberal interpretation at that. The crucial distinction between ‘directness of action’ and ‘unintended and indirect consequence’ is not made. The Government proposals would have allowed direct killing had they been approved. The risk to the life of the mother need not have been immediate and the medical practitioner was not obliged to obtain another opinion . The Taoiseach at the time stated that the procedures covered all conditions raised by medical practitioners ‘of whatever opinion’, and he was arranging for the designation of 30 hospitals for the ‘carrying out of medical procedures’. The then Minister for health had actually named the hospitals where terminations would take place"… abortion does not include the carrying out of a medical procedure by a medical practitioner at an approved place in the course of which or as a result of which unborn human life is ended where that procedure is, in the reasonable opinion of the practitioner, necessary to prevent a real and substantial risk of loss of the woman's life other than by self-destruction."
NOTE 1: It is significant that the phrase, ‘unborn human life is ended’ was used instead of ‘unborn human life is Lost’. Ended in this context signifies a deliberate action whereas lost would have signified an unintended consequence.
If the Government in 2002 genuinely intended to refer only to life saving medical interventions, which would have had an unintended but indirect side effect resulting in the death of an unborn baby, the wording would have been along the following lines:
"Abortion shall not include the carrying out of a medical procedure by a qualified (registered) medical practitioner in the course of which or as a result of which, unborn human life is lost as an unavoidable side effect or secondary consequence of standard medical procedure necessary to save a mother’s life."NOTE 2: Whilst wording along these lines may have resolved this particular issue the other significant defects still remained in the legislation.
The legalization of early abortions
The Government proposals would have repealed sections 58 and 59 of the Offences Against the Person Act, 1861 (OAPA). Together with Article 40.3.3 of the Constitution, this Act protects the unborn from the time of its conception. The repeal would have decriminalised early abortion and the sale of abortifacient chemicals and devices, and also have permitted destructive embryonic experimentation.
This issue was at the heart of these proposals. By criminalizing abortion from implantation only, the Government was seeking to give legitimacy to the notion that life begins only at implantation, a notion that has attractions for a commercial, as well as an EU agenda together with international pro-abortion interests.
But everyone knows that life begins at conception [fertilization], not implantation
In addition to the foregoing the 2002 proposal had another major defect:
The endorsement of a right to travel for the purpose of abortion
The Government proposals effectively claimed a right to travel for a purpose that would, "if it occurred in the State, constitute the offence" of abortion. This would have taken the 1992 travel amendment a stage further, to declare in our Constitution that the killing of an Irish person is acceptable outside the State and would have conceded that we do not really have a problem with abortion, only with location. This was then, and still is, completely unacceptable.
What was the truly pro-life position in 2002?
The Government proposal asked us to allow the direct and intentional destruction of unborn human life, to remove all legal protection for embryonic life at its earliest stages, and to put into our Constitution an effective right to travel for the specific purpose of abortion, setting aside our moral objection to abortion. Despite the fact that many pro-life organizations accepted the Government proposals the truly pro-life position lay in their outright rejection.
In his written legal opinion, former judge, Mr. Rory O'Hanlon, said the proposals were ‘clearly intrinsically evil’ and would ‘greatly worsen the legal protection afforded unborn human life’.
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