ANALYSIS:Twenty years after the Supreme Court delivered its judgment in the X case, a government has finally grasped the nettle and decided on a scheme that will give effect to the ruling.
The Cabinet decided yesterday on a combination of legislation and regulations to provide clarity on when a termination of a pregnancy is permissible. The scheme will allow abortions to be carried out only in accordance with the X case judgment: that is, where there is a real and substantial risk to the life of the mother, as distinct from to her health.
While the Government statement was silent on the matter, the grounds for a legal termination will include the risk of suicide or self-destruction. The legislative scheme will not, however, incorporate, or make legal, abortion in other in extremis situations, such as rape, sexual abuse, or rare fatal foetal abnormalities.
Politically, there has been a sharp disparity in the response of the two Coalition parties to the announcement. Labour will strongly support the measure and it will be a major surprise if any strong dissenting voices emerge. A primary reason for this is that the party explicitly called for legislation on the X case in its manifesto, so all its candidates signed up to support the measure.
“It is one issue that we are united on because we all committed to it,” one of its TDs said. Many of its TDs would have liked the legislation to go further but will not object on that basis. It should also be noted that, in common with other parties, there is a diversity of opinion within Labour, and the party includes some with strong anti-abortion views.
By contrast, it has been evident for some time that this issue would present Fine Gael with a huge predicament. The focal point of contention surrounds the inclusion of the risk of suicide as a legal ground for abortion, which will severely test the party’s cohesion.
As many as 20 of its TDs have expressed opposition to the inclusion of suicide. It is clear that there are others who share that point of view but have made no public comment. Some say that that cohort comprises half or more of its 74 TDs.
One of the very striking factors about Fine Gael’s more recent intake of TDs is that the bulk are conservatives, or “Christian Democrat” to use the shorthand. The party has a smaller liberal wing (the “social democrats”) of which Alan Shatter, Frances Fitzgerald and Brian Hayes have been the standardbearers recently.
Hayes put forward a detailed argument that it was possible to be “both pro-life and pro-choice” and said it was possible to simultaneously respect the right to life of the unborn and that of the mother. He said that a “moderate majority” of the party should subscribe to that view.
That is not certain, especially in relation to the incorporation in the legislation of suicide. On Monday in the Dáil, Meath East TD Regina Doherty summarised, with great honesty, the difficulties she has had in acceding to the inclusion of suicide.
“The uncertainty for many of us stems from the issue of including suicide in legislating for the X case. It is difficult for somebody who has a genuine fear that once the door is open it will not be capable of being closed,” she said.
However, the moment of truth will not come until the spring. The Oireachtas Committee on Health will hold three full days of hearings in January, which will hear evidence from medical and legal experts. The Government will publish draft legislation and after extensive consultation will publish the Bill.
“Nobody is going to decide until they see the exact wording. It will create difficulties if it’s in any way loose and could open the door to abortion on demand,” said a Fine Gael TD yesterday.
Dublin TD Eoghan Murphy called for a free vote this week but Taoiseach Enda Kenny firmly ruled it out. There is no desire to repeat the farce of 1974 when then taoiseach Liam Cosgrave allowed a free vote on contraceptives and then voted against his own government’s proposals.
Nor is there a possibility, given its huge majority, that the Government will lose the vote. However, Kenny might have to deal with the prospect of Fine Gael TDs voting against their own Government.
The hybrid solution of legislation and regulations was one of four recommendations – and probably the strongest – made by an expert group chaired by Mr Justice Seán Ryan. The group had been asked to examine what form of action Ireland should take in the light of the European Court of Human Rights judgment in the A, B, and C case.
In that case, the court found that Ireland had failed to respect the private life of a woman, C, who had had cancer and become unintentionally pregnant when she was in remission. She had been unable to obtain clear medical advice as to the impact of the pregnancy on her cancer and the effect it would have on her wellbeing and her life. She had also been unable to ascertain whether or not she qualified for a lawful termination.
What was decided yesterday addressed that lacuna and is designed to bring clarity. Of course the backdrop to these developments – and the primary reasons why it has happened much more quickly than expected – was the soul-searching triggered by the tragic death of Savita Halappanavar.
There has been a narrative abroad over the past few months that six successive governments sat on their hands and did nothing. That was not quite the case. Soon after the 1992 judgment, and again in 2001, governments did put the matter to the people by referendum.
On both occasions the ratio decidendi of the Supreme Court ruling was incorporated with one single – but fundamental – qualifier. The risk of suicide or self-destruction was to be excluded as a legal ground for abortion.
On both occasions the referendums were defeated after rancorous and divisive campaigns. It is over a decade since that last attempt and it is true to say that, since then, governments – and many politicians – have been markedly reluctant to grapple with the issue. That was, until yesterday.
* Harry McGee is Political Correspondent