It is sometimes difficult to tell whether the off-key British coverage of many Irish issues has to do with woolliness due to distance or something more ideological.
A report in the Times last week asserted that a proposed new Irish abortion law “would lift the threat of criminal sanctions for women who illegally terminate their pregnancies in Ireland”. This was an unthinking – or collaborative – lift of a spin put out by the Irish government, which claims that many women are ending their pregnancies after obtaining abortion pills by post. Yet not a single woman has spent a night in jail on any charge relating to the termination of a pregnancy in Ireland, and – leaving aside the possibility of a set-up to manipulate public opinion in advance of the coming referendum – that situation is certain to endure.
The report continued: “A referendum is expected to be held in May on whether Ireland’s anti-abortion laws should be lifted, after the government supported a national vote at a cabinet meeting on Monday.”
This is another standard construction of British media, which refers on a daily basis to “Ireland’s restrictive laws against abortion”. The referendum will not pose a question about abortion, but about the fundamental human rights of a category of human being: the unborn child in the womb, defined in the Irish constitution’s Irish text as mbeo gan breith, “the living without birth”. Abortion may be the sub-textual purpose of the referendum, but it is not the core issue.
The primary question facing the electorate relates to whether it will dispense with the constitutional recognition of the fundamental, antecedent right to life of the child in the womb. The word “abortion” does not appear within the constitution’s pages. This is not pedantry. The objective of removing this right, of course, is to introduce abortion, but we would not speak of the attempted jettisoning of any other form of fundamental right in this way. Imagine a proposal to annul the article guaranteeing the right of citizens “to express freely their convictions and opinions” being presented as a reform of “Ireland’s excessive anti-censorship laws”.
The question facing voters could not be starker: are they prepared to vote in a manner that appears to void the right of a section of humanity in Ireland? Yes or no?
The text of Article 40.3.3, which stands to be repealed or left alone, begins: “The state acknowledges the right to life of the unborn …” “Acknowledges” is a key word. It might read “extends”, but it does not. This ought immediately to alert the enquirer to the possibility that the right being summoned up here does not originate in this article: it is acknowledged. In legal language it is “antecedent”, which means that it is a right deriving from divine or natural law, and is therefore inalienable and imprescriptible, which is to say that it cannot be given up and cannot be taken away.
The text is a kind of pledge, a recognition, of something that can be removed from where it is, but not in a way that enables anything of its primary content to be voided or destroyed.
The use of the word “acknowledges” makes clear that the rights at issue here do not exist by concession of state, parliament or electorate. There is not therefore – and could never be – any legal, constitutional or moral basis for asking the Irish people whether or not they are prepared to dispense with these rights, and the people have no right to decide on such a matter.
It is claimed – by the Repeal the 8th movement – that this amendment, which was inserted in 1983, “equates the life of a pregnant woman with that of an embryo or foetus and has created an unworkable distinction between a pregnant woman’s life and her health”. This is bogus. There is no “equation”. Article 40.3.3 belongs to the child, the “living without birth”. The mother is referred to by way of summoning up the vast panoply of rights available to her and enumerated elsewhere in the constitution.
Nobody has been able to come up with a single instance where a conflict occurred and was “resolved” by allowing the mother to die and the child to live. The Savita Halappanavar case of 2012 is cited again and again by pro-abortion interests, but two independent investigations have found that Ms Halappanavar died of sepsis and that a termination of her pregnancy would at no time have saved her life.
Last week the government unveiled its broad strategy. In effect, it is to a request a blank cheque from voters to allow law-makers the right to legislate for abortion as they see fit – into the limitless future. The government’s preferred option is abortion “on request” up to 12 weeks.
I had been thinking that, were the government to adopt this approach, it would be the one carrying – for them – the greatest risk of defeat. But there is a logic to the “repeal and replace” strategy: whereas the mere deletion of Article 40.3.3 might run the risk of the courts in due course finding that the rights acknowledged therein continued to exist, the idea of diverting the question to the Oireachtas would leave the way open for a salami-style assault on the rights of the unborn into the future, slice by slice until nothing remained.
There would be the risk – from the governmental point of view – of repeated challenges as things move along, but the general course would have been set down, and the increasingly positivist drift of judicial thinking would do the rest.
What may be the last great battle of Irish constitutional integrity has begun.
John Waters is an author and public commentator
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