Always and Never: the Options

This section of this submission discusses each of the options (i -vii) set out for consideration in the Green Paper. This discussion seeks to compare and contrast each of the options in terms of their relationship to other options, their relevance to the daily reality of Irish abortion and their effective capacity to contribute to a political resolution of the issues raised.

3.1 Absolute Ban on Abortion Option (i)

3.1.1 Problems of Language and Logic.
This is an option most notably advocated by groups involved in initiating the 1983 referendum on abortion and which then strongly advocated support for the text of the Eighth Amendment to the constitution.

Such groups have since found that the meaning of the form of words which they supported is not what they had assumed it to be. The Green Paper indicates very clearly that there are now significant ambiguities in the use of the term "absolute", in the context of this option, as advanced by those same groups.

Those advocating such an "absolute ban" do so on the basis of sincerely held personal beliefs, which we respect. However such beliefs, even if shared by all members of society (which they are not), do not easily translate into constitutional provisions.

3.1.2 Medical Issues
A significant part of the problem with defining this option is a refusal by its proponents to acknowledge that any medical intervention which brings a pregnancy to an unnatural and premature end, without the birth of a baby, is in fact an abortion or elective termination.

This refusal is symptomatic of an obsessive pre-occupation with the word 'abortion', a word which does not appear in the Constitution or the 1861 Act.

Any "absolute" ban on abortion would be capable of interfering with established medical practice in relation to a number of critical situations associated with pregnancy. No amount of word play or 'spin' is capable of changing that fact. Medical practitioners do not deal in absolutes. Always and Never are words outside the scope of normal medical practice.

The Green Paper provides a critical analysis of some of the concepts recently invented as part of an effort to overcome the logical inconsistencies inherent in this option. We refer to concepts such as "double effect", "direct and indirect" and "deliberate or intentional". These are examples of double talk and the IFPA agrees with the authors of the Green Paper that these concepts are not viable and lack intellectual rigour.

3.1.3 Equal Right to Life of Women
The inherent objective of this proposal is to create a right to life for 'the unborn' which may supercede that of the pregnant woman and could endanger her life. In other words to turn the clock back on the X case judgment which relied on the equal right to life of the woman. There is an unwillingness on the part of those who support this option to openly argue for deletion of the phrase "with due regard to the equal right to life of the mother" from article 40.3.3 of the constitution. No ban could be 'absolute' without the removal of that phrase, at the least.

3.1.4 Political Assessment
The Green Paper makes a clear and compelling case that this is not a real option. An Absolute Ban is not the meaning of this option or even the intent of those proposing it. The so-called absolute ban amounts to no more than a political slogan. To allow this option to go forward would amount to playing a confidence trick on the electorate, offering those who are unambiguously opposed to abortion something that cannot be achieved. For this reason alone this option should now be ruled out of further consideration.

Any referendum held for the purpose of amending the constitution in accordance with this option would be unlikely to attract the support of a majority of voters. Such a referendum would, in our view, not provide an opportunity for resolution.

If this option were to be supported in a constitutional referendum it would certainly set the stage for further traumas such as that of the X case and would not therefore serve to provide a remedy to the ongoing difficulty with this issue.

3.2 Amendment of the Constitutional Provisions so as to restrict the Application of the X case Option (ii)

3.2.1 Context
This option seeks a referendum to remove the risk of suicide as grounds for abortion in Ireland. In essence this would require a re-run of one part of the 1992 referendum, that being the so-called "substantive amendment".

The measure proposed in this option was heavily defeated in 1992. No legislative action has been taken in this matter since.

This scenario, as envisaged in the Green Paper, is identical to that set out by the Government in 1992, when it was stated clearly, that legislation to regulate the provision of abortion would follow that referendum. It could be viewed as somewhat farcical if this option were now to be the outcome of eight or more years of delay. The country would quite literally have come full circle.

It does not appear from the Green Paper that any submission received by the Working Group sought or supported this option.

3.2.2 Political Assessment
Given the strength of feeling evoked by the X case and the appalling circumstances of the subsequent C case it is, at best, doubtful that it would prove possible to persuade sufficient voters to remove the risk of suicide as grounds for abortion. Had the 1992 substantive amendment been passed the grounds on which Miss 'C' was permitted to travel for abortion would not have been available to the High Court. In such circumstance a future Miss 'C' might be compelled to carry to full term a pregnancy resulting from rape, notwithstanding her own desire to end her life rather than go through with the pregnancy. Forcing a woman to endure a situation which renders her liable to commit suicide is a direct interference with her inherent right to life. Such a scenario would not be acceptable to the great majority of the Irish people.

A referendum along these lines has no real prospect of success, and in consequence offers no prospect of resolving the issue. If such a provision were inserted into the constitution it would create the conditions in which future X and C cases would unfold, returning us to our present unsatisfactory position.

3.3 Retention of Status quo Option (iii)

This option has the effect of legitimising and perpetuating seven years of inaction. Such a plan can only be justified if the present situation is considered to be sound or desirable. The consequences of this option would include, in perpetuity:

• continued uncertainty as to the legal position;
• an unknown number of future cases such as the X or C cases, with appalling personal consequences for all those involved, probably followed by another process such as this;
• ongoing reliance on undefined terms such as "the Unborn";
• continued governmental inertia on programmes to tackle unplanned pregnancy;
• High Court and Supreme Court time taken up, on a rolling basis;
• political system seen to fail as a result of actions of lobby groups;
• at least 100,000 Irish abortions in the next ten years.

3.3.2 Additional Future Complications
The X case brought to light certain inadequacies in the status quo. However there is no reason to believe that the total extent of the inadequacies of the Eighth Amendment have yet been exposed.

Medical advances, for example, will further test article 40.3.3. Emerging techniques for the treatment of the foetus in utero may give rise to conflicts between the wishes of doctors to treat the foetus and the wishes of a pregnant woman who may object to the impact that such treatment might have on her. Developments in Assisted Human Reproduction could give rise to the need to reduce the number of pregnancies, where there are large numbers of implanted embryos, and a process known as foetal reduction may be necessary if any of the foetuses are to survive pregnancy. This may give rise to conflicts in the right to life of the various unborn. These issues are fully discussed in the IFPA submission to the Working Group.

We submit that society does not yet fully comprehend the full extent of the dangers and difficulties represented by the status quo.

3.3.3 Political Assessment
This Option may be attractive to Government since it entails no action whatsoever and replicates an approach which has been well practised over more than seven years at the time of submission. However, were the Committee to recommend this option it is likely that the whole Green Paper process would be open to the criticism that it was an act of gross political cynicism and irresponsibility. Confidence in Irish political processes and the system of government would be further undermined.

3.4 Retention of Constitutional Status quo with Legislative Restatement of the Prohibition on Abortion Option (iv)

3.4.1 Context
This option differs from Option (iii) only to the extent that it creates a veneer of political action for, in effect, doing little or nothing at all. This option offers all the disadvantages of Option (iii) (please refer to paragraphs 3.3.1 and 3.3.2 of this submission), but requires legislative effort to achieve the same outcome.

This option differs from Option (v) only to the extent that, while it still envisages leaving matters to be determined on a case by case basis, it also contemplates doing by legalisation what the people refused to do by referendum in 1992, that is, to eliminate suicide from the available grounds for abortion or termination of pregnancy, within the state.

The IFPA submits that this option manifestly fails the test of good governance. This option envisages expending legislative time, to create the impression of political action, while actually achieving nothing. This option would lead to case after case coming before the courts, in the full glare of media attention. In the event of hard cases, such as those that have gone before, this approach adds insult to injury for the unfortunate woman or girl at the centre of the case.

3.4.2 Medical Issues - General
This option also puts doctors in an invidious and, we submit, intolerable position. The prospect of doctors having to take critical decisions about the well being of their patients, knowing that however well they serve their patients' interests, they could find themselves having to defend themselves against serious criminal charges, is not appropriate to the provision of quality health services in a civilised country. This should not be the basis on which we propose to govern ourselves.

The Green Paper makes the point that legislation to eliminate suicide from the available grounds for abortion or termination of pregnancy would be open to Constitutional challenge. The IFPA offers the Committee its view that it is beyond all reasonable doubt that such a challenge would be mounted.

3.4.3 Medical Issues - Assessing risk of Suicide
At paragraph 7.44 the Green Paper sets out a mechanism for 'proving' a risk of suicide. This describes a process by which a medical practitioner would be required to "clearly prove such a risk in advance to an appropriate expert committee and authorisation would have to obtained from the committee".

There are existing standards for assessing risk to mental health including risk of suicide, such as that required for the purposes of committal under the Mental Health Act, 1945. The opinion of any two doctors is sufficient for committal for up to 48 hours, with the counter signature of a consultant Psychiatrist being sufficient for committal for a period of up to six months.

It is not easy to see why the test envisaged in the Green Paper should appear to be so much more stringent in the case of a person seeking a termination of pregnancy.

The IFPA would argue that the test as envisaged in Options (iv) and (v) should certainly be no more burdensome than that set out in the Mental Health Act, 1945.

3.4.4 Political Assessment
It is worth noting that there is no discussion associated with this option in the Green Paper.
By seeking to do by legislation what the people refused to in referendum, this Option has implications for Irish democracy which go far beyond the issue of abortion. It is difficult to see what is to be gained from such a course of action. In our view this option does not progress matters at all, and risks making things worse.

This Option, in form, content and construction appears out of place in the document having regard to the overall construction of the Green Paper.

3.5 Legislation to regulate Abortion in circumstances defined in the X case Option (v)

3.5.1 Context
This option differs only marginally from option (iv). It may be regarded as dealing with unfinished business from the 1992 referendum. This option is required, as a minimum, to deal with the consequences of the X case. In the event of a woman qualifying for abortion under the terms of the X case, but being unable to travel, the lack of such legislation would lead to serious difficulty.

Legislation such as that set out in this option was promised, by the Reynolds government, in the event of the proposed substantive amendment being defeated. In the absence of any consensus in the committee, as to how to proceed, this option should be regarded as the default position.

Suggested mechanisms for assessing suicide risk are discussed in paragraph 3.4.3 of this submission and need not be repeated here.

If this option is selected it will be necessary to ensure that there is provision for all children, minors or wards of court to be treated equally in terms of their access to the rights that would be created under this option. Provided this issue is properly addressed in any proposed legislation this option could help to address the specific concerns arising from both the X and C cases.

3.5.2 Political Assessment
It is deeply disquieting that legislation, such as that envisaged under this option, did not follow automatically from the defeat of the proposed substantive constitutional amendment in 1992, since this failure reflects poorly on our record of good governance. As all major political parties have been in government since 1992 this is not, in any sense, a partisan criticism.

Such legislation is the minimum that should be expected to emerge from this process.

3.6. Reversion to the pre-1983 position Option (vi)

3.6.1 Context
The IFPA submitted to the Working Group on Abortion that the issue of abortion is one that cannot be satisfactorily dealt with by way of Constitutional provisions. The logic of this position is that the IFPA supports the deletion of Article 40.3.3. We would argue that this should be done irrespective of current public policy on abortion.

The Eighth Amendment has had many consequences that were not envisaged by those persuaded to vote for it, and possibly not even by those who proposed it. These consequences have included the various information injunctions, the closure of counselling services, censorship of magazines, the High Court injunction against Miss 'X' and her parents, the appalling circumstances of the C case and the decision of the Supreme Court in the X case.

Experience since the Eighth Amendment provides compelling evidence that the Constitution is not the appropriate vehicle for regulation or resolution of this issue. If there is a desire to maintain ongoing legal limitations of the right to abortion in Ireland this can be achieved by way of legislation. If such legislation is found to be faulty or in need of review, there would be no necessity for ongoing referenda to facilitate this.

If public policy demands ongoing legislative prohibition of abortion this can be done without the need for the Eighth Amendment. If public policy seeks a more realistic and enlightened approach, either now or later, this can be dealt with by the Oireachtas without the unwieldy process of constitutional referenda.

3.6.2 Constitutional 'Protection' for the 'Unborn'
Any proposal to delete the Eighth Amendment is likely to be characterised, by some groups, as removing constitutional protection for the unborn. We submit that such alleged constitutional protection is illusory. In practical terms the 1983 amendment has not in fact protected the unborn. Since 1983 we know that at least 85,000 Irish women, and probably considerably more than this number, have had elective terminations of pregnancy/abortions.

In assessing the pros and cons of the Eighth Amendment any claim of constitutional protection of the unborn arising from its existence should be discounted.

We do know, however, that the Eighth Amendment has contributed to inequality in society. Although its provisions never really affected those with the 'insulation of the cheque book', others of more modest means have been put to financial hardship, and often debt, as a result of the cost of travelling abroad for abortion. Among those who have paid the greatest price for the Eighth Amendment are those whose need to avail of abortion has forced them before the courts and exposed their lives to media scrutiny. They have both been among the most vulnerable members of society, two young girls pregnant as a result of rape.

We also know that Irish women are having their abortions at a later gestational stage than their British counterparts, a factor which increases the potential for medical complications.

Abortion has been practised since the earliest of times. No criminal sanction or constitutional provision has ever or will ever stop women seeking abortions. In many countries criminal sanctions result in unsafe abortions which cause the deaths of about 70,000 (1) women every year world wide, and a much larger number suffer from infections, injury and trauma. Victims of unsafe illegal abortions fill hospital wards in such countries. In other countries criminal sanctions result in women going abroad, as in Ireland, or "State-hopping" as happens in the United States of America.

3.6.3 Political Assessment
If the Committee were to suggest that the 1983 amendment was a mistake and the Constitution was, with the benefit of hindsight, the wrong place to deal with an issue such as abortion, it is likely that the vast majority of people, irrespective of their sincerely held moral perspective on abortion, would agree.

We submit that it is not now enough simply to sweep away the Eighth Amendment. In our view there would be a significant body of opinion that would expect such a move to be twinned with active measures, to include:

• priority programmes to minimise unplanned pregnancy;
• provisions to deal with the needs of women in need of abortion for medical reasons, but unable to travel;
• provisions to ensure that the needs of minors in the same situation as Miss X or Miss C, can be dealt with outside the courts and away from the glare of media publicity;
• provision to deal with other hard cases.

In our view repeal of the Eighth Amendment should be undertaken in tandem with repeal of the relevant provisions of the Offences Against the Person Act, 1861 and the creation of legal protection for Irish Doctors who deem it appropriate to provide abortions within the state, on the basis of their medical judgement. This approach should certainly form part of any electoral consultation.

3.7 Permitting Abortion on grounds beyond those specified in the X case Option (vii)

3.7.1 Context
The X and C cases demonstrate that abortion is not a black and white issue.

Public reaction to these cases demonstrated that many people who may have personal anti-abortion instincts and would not themselves contemplate abortion, recognise that there are situations in which exceptions should be made and that at such times only the person directly affected is in a position to judge what should be done. This section of the Green Paper usefully sets out a tiered approach to legalisation of abortion, which reflects the diversity of opinion on the issue.

3.7.2 Political Assessment
An absolute ban on abortion without exception is likely to command the support of a small proportion of the population. Similarly the lifting of all legal restrictions on access to abortion, though the preferred course of the IFPA, may not presently command majority support.

It is our view that a consensus position lies somewhere in between these two positions. It is our view that there is support for exceptions which go beyond the terms of the X case, and that given the opportunity to fully express their preferences on the matter in an exhaustive ballot, the consensus position would lie somewhere in the various tiered options set out very clearly in paragraphs 7.65 - 7.91 of the Green Paper.

The Green Paper invites us all to play the role of King Solomon by considering where the line should be drawn. That is to individually consider which set of tragic circumstances would qualify a woman to choose for herself whether or not to continue with a pregnancy and which other tragic sets of circumstances are such that society should make that choice for her, in advance. This section of the Green Paper clearly demonstrates the problems that arise from attempting to regulate such things.

Public Opinion polls are of only limited value, but an Irish Times/MRBI poll published in The Irish Times on December 11th 1997 asked questions similar to those posed in this option. The results showed that 77% felt that abortion should be permitted where the "Mothers Life is at risk"; 42% where "Mother's health is at risk"; and 28% "For whoever needs it". In this poll only 18% said abortion should be permitted "Not at all" and 5% had no opinion. This was a more sophisticated poll that than those associated with constitutional referenda in that it allowed respondents to fully express their preferences.

3.7.3 IFPA Approach
Our conclusion is that it is unreasonable for society, in cases of problematic pregnancy, to take the role of arbiter unto itself. We argue that it is not appropriate for society to draw such arbitrary lines, on behalf of the individual citizen, in relation to this issue. Since an absolute ban is neither desirable or feasible, for all the reasons set out in the Green Paper, we believe that the only practicable approach is to allow women to make such decisions for themselves, in consultation with their chosen medical and other advisers. It would be our belief and hope that, given the opportunity to consider the realities set out under this option in the Green Paper, as opposed to unrealistic absolutist and notional 'quick fix' constitutional proposals typified by the Eighth Amendment, the great majority of Irish people would agree with our proposed approach to this issue.