RECENT events again demonstrate that the abortion debate, while relatively quiet of late, has never gone away. From the legal standpoint, the two fundamental questions are. What is the present state of the law? Is it possible to draft a constitutional amendment which will outlaw abortion in all circumstances?

The exact parameters of the present state of the law are, of course, unclear. However, the majority judgments of the Supreme Court in the X case in 1992 indicated that abortion was lawful in Ireland in extremely limited circumstances.

The Supreme Court confirmed this in its ruling in the Abortion Information Bill referral in 1995 when it held that the termination of pregnancy was lawful ". . . if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother and that that risk can only be avoided by the termination of pregnancy.

This conclusion ought not to have come as a surprise to anybody. Almost by definition, the wording of the original 8th amendment in 1983 (now Article 40.3.3 of the Constitution) with its reference to the State's obligation to vindicating the equal right to life of the mother envisaged circumstances where the termination of that pregnancy would be lawful.

In some respects, Article 40.3.3 echoed Section 58 of the Offences against the Person Act 1861 which creates the criminal offences of "unlawfully" procuring a miscarriage. The language of that section contemplated circumstances where a doctor might "lawfully" procure a miscarriage.

What was or, at least, ought to have been more controversial was the application of these principles to the X case. But the most significant feature of this case for present purposes is that both Mr Justice Costello in the High Court and all members of the Supreme Court agreed (either expressly or by implication) that, in certain limited circumstances, the termination of pregnancy would be lawful if it were necessary to save the life of the mother.

AT the heart of the problem is the definition of what constitutes an abortion. Take the case of the pregnant woman suffering from cancer who will die if she does not have radical surgery whose foreseeable side effect will be the death of the unborn child.

Given the fundamental principle of the criminal law that one is presumed to intend the natural and foreseeable consequences of one's acts, a doctor who performs such surgery performs what in law is properly regarded as an "abortion".

Before 1983 such a medical operation would have been characterised in law as the intentional procurement of a miscarriage within the meaning of Section 58 of the 1861 Act. But for obvious reasons it was not regarded as "unlawful".

In the language of constitutional law, such an abortion would have been regarded as a failure by the State to vindicate the right to life of the unborn. But such failure would have been excused (and, hence, justified) by reason of the necessity in such circumstances to protect the right to life of the mother.

The Pro-Life Campaign does not accept, of course, that the operation described constitutes an "abortion" in either the ordinary or the legal sense of the term. It seeks a new amendment which would preclude "direct" abortion as opposed to "indirect" abortion where the death of the unborn is merely the incidental, unavoidable and unsought consequence of medical intervention in all circumstances.

This direct/indirect argument was canvassed before the 1992 referenda on abortion. But its feasibility was rejected by the then Minister for Justice, Mr Padraig Flynn, speaking at the second stage of the debate on the Bills "It is difficult to see how it can be maintained, for example, that in removing a cancerous womb there is no intention of terminating the life of the foetus when that result is clearly foreseen from the very outset and is inevitable.

It is also said that there are no medical circumstances in which a "direct" abortion, as defined by the Pro-Life Campaign, could ever be required to save the life of the mother. That is doubtless true of most pregnancys perhaps even of pregnancies presenting complications. But can we be dogmatic and say that such will never be required?

The vicissitudes of life induce a healthy scepticism in most of us of absolute guarantees given even by the most eminent of medical consultants, for medicine is all too fallible, like law and every other profession. We should be wary, therefore, of elevating what could prove to be no more than medical opinion to the status of constitutional law.

These issues were also examined over a year by the Constitution Review Group (of which this writer was a member). It may be that our analysis of abortion was, to paraphrase the criticism of my good friend and colleague, Prof William Binchy, facile and lacked profundity.

ALL I can say, by way of defence, is that an earnest group of dedicated individuals sought a workable solution to this constitutional quagmire and despaired of finding an acceptable wording.

In the end, the Review Group saw no practical alternative to the introduction of legislation ..... covering such matters as definitions, protection for appropriate medical intervention, certification of real and substantial risk to the life of the mother and a time limit on lawful termination of pregnancy."

In this respect the expert working group on this subject recently set up by Fianna Fail has my very best wishes. It may be that it or, for that matter, the Pro-Life group can come up with an acceptable replacement wording for Article 40.3.3.

But it seems doubtful if a wording can be obtained which purports to ban all forms of abortion, when even the definition of that term is fraught with difficulty, while containing adequate safeguards to protect the life of the mother.

Dr Gerard Hogan lectures at the School of Law, TCD.