The theatre of a late-night Dáil sitting and the prospect of a junior minister going overboard may have lent some drama to its final passage into law, but the fundamental aspects of the Protection of Life During Pregnancy Bill have been in place, unchanged, for weeks if not months.
One of these - the absence of provision for abortion in cases of fatal foetal abnormality - nonetheless stirred debate in the chamber in the early hours of yesterday morning, when a number of Independent TDs made a late attempt to have it included in the Bill.
The amendment, tabled by Catherine Murphy, Séamus Healy, Mick Wallace, Richard Boyd Barrett and Joe Higgins, was defeated by 124 votes to 19. Among the latter group was Labour TD Michael McNamara, who voted against the Government on this amendment, though his party later claimed he had made a genuine mistake and would not be disciplined.
The Government says its hands are tied by the constitution on the question of fatal foetal abnormalities. It argues that it must act within the confines of the 1992 Supreme Court judgment in the X case, which is silent on cases where the foetus is not compatible with life, and that its advice suggests it could be unconstitutional to insert such a provision into the Bill without holding a referendum to change the constitution.
Mr Healy challenged this in the Dáil, calling on the Government to include cases of fatal foetal abnormalities in the Bill, wait for it to be tested in the Supreme Court and then exclude it in the event that the court strikes it down. Others have argued that the provision would pass the test of constitutionality.
It would be highly unusual for a Government to send the Supreme Court a Bill it suspects is unconstitutional, however. “As legislators, we need to have greater certainty when we pass legislation that we know will be challenged in the courts,” Mr Reilly said. “The purpose of the Bill is not to confer new rights. Therefore, the amendments are beyond the scope of the Bill.”
Moreover, the Government's stance is informed not only by the law but by politics as well. Labour's long-standing policy has been to legislate to give effect to the X case judgment, but Fine Gael - internally more divided than its coalition partner on the issue - had a different policy going into the 2011 election. Its manifesto committed to establishing an all-party committee, "with access to medical and legal expertise", to "consider the implications" of the ruling of the 2009 European Court of Human Rights. In this ruling, the European court had concluded that there was an existing constitutional right to abortion, identified by the Supreme Court in the X case, and there should be a formal, accessible and transparent procedure to make that available.
The compromise struck in the Programme for Government was the creation of an expert group to make recommendations on how to implement that European judgment. Those recommendations form the basis of the current Bill. And because fatal foetal abnormalities weren’t within the scope of the European judgment - and by extension the expert group - they are not included.
Acting on fatal foetal abnormality would ultimately be a political decision, but while some Fine Gael figures, including Minister for Justice Alan Shatter, have said they think abortion should be available in these situations, a party that has had such trouble enacting a relatively restrictive law that is in line with a 21-year-old Supreme Court judgment is loathe to push the boundaries of that judgment any farther than it has to.
Of course, the Government could attempt to get around what it sees as a constitutional barrier to abortion in cases of fatal foetal abnormalities by holding a referendum on the issue. So far there have been few signals from ministers that they’ll have the appetite, at least any time soon, for what would be a sixth abortion referendum in 30 years.
