The clock ticks ever closer to Ireland introducing its first law permitting abortion. Last week, the report of the Expert Group on abortion was published and the Government has promised to respond to it just in time for Christmas, when we celebrate the birth of Christ. The irony of this seems to be completely lost on our leaders.
The Expert Group was established following the ruling two years ago of the European Court of Human Rights in the case of ‘A, B and C v Ireland’.
That ruling found that the law on abortion in Ireland isn’t clear enough.
Under the terms of the X-case judgement of 1992, the Constitution permits the ending of a pregnancy when there is a real and substantial risk to the life of the mother, and this risk, which includes the risk of suicide, can only be averted by the termination of her pregnancy.
The 1992 ruling has never been given legislative effect. The European Court of Human Rights (which is not part of the EU, contrary to popular belief) found that this breached the rights of ‘C’ in the ABC case mentioned above.
‘C’ was a Lithuanian national who had been treated for cancer. She became pregnant unintentionally and was worried her cancer would return as a result. She consulted doctors but they could not tell her whether she was permitted an abortion under Irish law. She went to Britain and had an abortion there instead.
The European Court of Human Rights ruled that her rights were breached because of the lack of legal clarity in this regard.
However, something very important must be noted here, namely that the court did not tell us that C had a right to have an abortion as such. It merely told us that she had a right to a clear answer on the subject.
If the clear answer was that she was not entitled to an abortion, then that would satisfy the European Court although obviously it would not satisfy C herself.
Nor does the ruling of the court even require us to implement the X case as such. Again, all it wants is legal clarity. If we rescinded the X case judgment by way of another referendum, that would also provide the required clarity.
Notably, the Expert Group did not recommend the option of a referendum. It rejected this option because in essence it is of the view that the people in 2002 had an opportunity to reject the X case and did not do so.
In fact, there was a split in the pro-life ranks on that occasion. Dana Rosemary Scallon among others urged pro-life voters to vote No to the amendment on offer on the grounds that it did not go far enough.
Had there been no split in 2002, the Irish people would have rescinded the X case ruling so that an abortion could no longer be seen as a ‘treatment’ for a pregnant woman with suicidal feelings.
So the Expert Group could have recommended another referendum as a way of providing the legal clarity required by the European Court of Human Rights, but it did not do so. Instead it has recommended legislation for the X case, regulations, or a combination of both.
As mentioned, the Government has said it will state later this month which of the recommendations it prefers. The Government could, of course, reject all of the recommendations and instead opt for a referendum.
However, it won’t do that despite its fondness for constitutional referenda on other issues such as ‘children’s rights’ or Oireachtas inquiries.
It won’t do it because it knows it would cause a huge media backlash, and also because it doesn’t want one, and the Labour party certainly wouldn’t tolerate it.
But this still doesn’t mean it has to implement the X case ruling in full. To repeat, the X case ruling permits a termination of pregnancy when there is a real and substantial risk to the life of the mother, and this risk can only be averted by a termination.
The Supreme Court ruled in its 1992 judgment that a real and substantial risk to the life of the mother included the threat of suicide.
Our Government could leave out the suicide ground if it so wished. This would be problematic if it goes down the legislative route because if legislation leaves out the suicide ground then it could be struck down as unconstitutional.
But if it goes down the guidelines-only route and leaves out the suicide ground that cannot be struck down as unconstitutional. Obviously critics will still argue that it doesn’t satisfy the Supreme Court ruling.
On the other hand, we have had 20 years during which the suicide ground has not been legislated for and the country has not been plunged into a constitutional crisis as a result.
It’s also worth noting that the European Court of Human Rights found against Britain when it told it that refusing prisoners the vote violated their rights. Britain has completely ignored the ruling and has told the European Court it has no intention of implementing it.
This means Britain is in breach of international law, but it has suffered no legal consequences as a result. Nor will it.
So a great deal of this comes down to political will. If our politicians really believed the X case and ABC rulings were wrong, it would ignore them, as Britain has ignored what it believes is the wrong-headed ruling of the European Court concerning prisoners.
If our media believed those rulings were wrong, it would likewise tell our politicians to ignore them.
And if Clare Daly or Ivana Bacik believed they were wrong, they too would tell the Government to ignore them.
But our Government won’t ignore them because one part of it is too craven and the other part, mainly the Labour part, wants abortion.
It will only be stopped if there is a sufficient grassroots rebellion or if Fine Gael fears a heavy loss of votes come the next election.
The Church is 'interfering' in politics again
Last week, seven Catholic social justice groups, including two councils of the Bishopsí Conference called for a ìchange in directionî in this weekís budget ìto bring us closer to creating a society where respect for the dignity of every person, fairness, solidarity and the common good are the key underpinning values.î
When the bishops tepidly opposed the Civil Partnership Bill a couple of years ago then Government Minister, John Gormley, accused them of ìintrudingî in politics.
There has been no such criticism this time probably because the intervention of the various Church groups concerns a more fashionable issue.
But if the Church can comment on the budget, then it has to be allowed to comment on other aspects of Government policy as well. Surely that is only logical?