After two marathon debate sessions in the lower house of the Irish parliament, culminating in a 127-31 vote on Friday in favour of the Protection of Life during Pregnancy Bill, it seems inevitable that abortion is to be introduced in Ireland.

Eamon Gilmore, head of Ireland’s Labour Party and deputy Prime Minister.

Groups advocating the legalisation of abortion consistently present this as a necessity, claiming that Ireland’s Constitution, the European Court of Human Rights, and the number of Irish women having abortions abroad oblige the Irish parliament to ‘clarify’ its laws.

None of this is true. The proposed legislation is unnecessary, is probably unconstitutional, brings into discredit the entire Irish democratic process, and can hardly be justified on any grounds other than political reality, as Ireland’s Labour party, the junior partner in Ireland’s coalition government, is desperate to implement those aspects of its 2011 manifesto that won’t cost any money.

But that doesn’t stop advocates of a change in the law advancing a number of tendentious arguments.

Sharp decline in Irish abortions

The first is that Irish women have abortions abroad. Yet as was demonstrated this week by the most recent Department of Health figures, this number has been steadily falling for the last decade.

While 6,673 women giving Irish addresses had abortions in the UK in 2001, over a decade later that number had dropped to 3,982 in 2012. And while 461 Irish women travelled to the Netherlands for abortions in 2006, this number had dropped to 33 in 2011. In comparison, the number of women giving addresses in England and Wales who had abortions in the UK during this period rose from 176,364 in 2001 to 189,574 in 2011.

In other words, abortion has, in real terms, declined in Ireland by 40 per cent over the last decade, while during the same period it has risen in England and Wales, where the  abortion rate for resident women aged 15-44 is now 17.5 per cent, 2 per cent higher than in 2001, and more than double the 8 per cent rate recorded in 1970. It is difficult to see how legalising abortion in Ireland could do anything other than cause it to follow the direction of England and Wales, reversing the encouraging trend of recent years.

Referendums

In recent interviews with Catholic Voices (Sarah de Nordwall here, Peter Williams here), Sarah Malone of the Abortion Rights Campaign cites referendums and polls in support of changing the law, arguing that it is the job of Ireland’s parliament to legislate for the will of the people. That is, of course, incorrect: the Dáil, any more than Parliament, has no obligation to implement the will of the majority, and may well be obliged to do the reverse —  as British lawmakers regularly do, for example, over the death penalty (which 60 per cent of people believe should be re-imposed in the case of murder). It is, in fact, the mark of serious government to recognise that majorities can be wrong, and that the rights of human beings inhere whatever their status in society and law.

But in any case it is not true that ‘most Irish people’ want to legalise abortion. Three referendums point to there being a consistent, if narrow, pro-life majority in Ireland.

It was certainly clear in 1983. Some 67 per cent voted in favour of adding Article 40.3.3 to the Irish Constitution, which read:

“The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”

A Pro Life Campaign referendum flyer from 1992.

A further referendum followed in 1992, which proposed to tighten the constitutional ban on abortion in the aftermath of the X decision, which established the right of an Irish woman to an abortion if her life was at risk as result of her pregnancy. The rejection of the proposed amendment by 65 per cent of voters is constantly presented by campaigners for legalised abortion as a popular vindication of the X ruling. Yet the Pro Life Campaign and the Irish Church had themselves opposed the 1992 proposal.

After extensive consultations, yet another referendum followed in 2002, again attempting to tighten the constitutional ban. This was a much closer affair, in which a narrow majority of Irish voters – 50.42 per cent – rejected the government’s proposal. This should certainly not be presented as a vote for the X judgment, however, because the anti-abortion movement was split. (According to Austin Ruse, ‘purists’ in the pro-life camp believed that the proposal was pro-abortion because it protected unborn children only from implantation onward, even though pre-implantation embryos were already protected in law. In the end, some 30,000 self-identified pro-lifers opposed the 2002 proposal on these grounds, many of them persuaded by the kind of arguments expressed in this blogpost from the Association of Lawyers for the Defence of the Unborn written at the time. Because the referendum proposal was defeated by just 11,000, their votes were decisive.)

Opinion polls

What of public opinion surveys? In recent years – in the very period during which the number of Irish women having abortions went into a steep decline – many point to a general Irish wish to liberalise Ireland’s abortion law. But when one looks closer, the results are more ambiguous.

Recent polls conducted in June for the Sunday Independent and the Irish Times , for instance, found respectively that 58 per cent and 75 per cent of people were in favour of legislation to give force to the X judgment; it is, however, possible to legislate for the X judgment in a way that would continue to respect the constitutional imperative to vindicate and protect the lives of unborn children.  Other polls have been even less clear: the December 2012 poll by Red C Research , for example, found that 85 per cent of people would be happy for the government to legislate in accord for the X case, yet 63 per cent want a new referendum to exclude suicide as grounds for abortion.

Caroline Simons, spokesperson for Ireland’s Pro Life Campaign

As Cora Sherlock of the Pro-Life Campaign has pointed out, “confused questions produce confusing answers”. When polls clarify the existing legal and medical practice in Ireland before asking questions, they reveal a broad pro-life feeling and large-scale opposition to the introduction of abortion on the grounds of suicidal ideation. The most recent poll on the issue, conducted by Amárach for the Pro Life Campaign, has reinforced those findings. “The key issue,” says Pro Life Campaign spokesperson Caroline Simons, “is public information”.

Turnout on the streets

If polls point to the breadth of popular feeling, attendance at popular demonstrations in connection with the abortion issue may offer a better barometer for judging the extent of popular feeling on this issue.

In September 2012 barely 850 people could be mustered for a pro-choice rally in Dublin, organised and advertised long in advance, while a subsequent march, in which the pro-choice movement was intermingled with those expressing horror at the tragic death through medical misadventure of Savita Halappanavar, drew at most 12,000 but perhaps as few as 6,000, according to Irish police figures.

In contrast, pro-life demonstrations have consistently seen large and increasing levels of popular support.  Upwards of 7,000 attended a vigil outside Ireland’s parliament buildings in early December,  with Irish police saying that 25,000 attended one outside government buildings in late January. Another vigil in June drew a crowd of about 30,000, according to Irish police, while the Rally for Life on 8 July was reported by the police to have drawn about 50,000 people.

Bad for democracy

Despite such intense opposition, and with support collapsing for Ireland’s two government parties, it seems unlikely that the Seanad, Ireland’s upper house, will put the brakes on the government’s plan. It is hard to see how the government’s conduct in this affair can be anything but damaging for Irish democracy.

The government has twice considered the current legislation in parliamentary committees, and yet shows no sign of having taken account of what those hearings revealed.  The first set of hearings, for instance, established that the proposed legislation is an attempt to answer a question that isn’t being asked.

All witnesses agreed that no maternal deaths are known to have occurred in Ireland as a result of any deficiencies in current law, that no doctors have ever been prosecuted in Ireland under the 1861 Offences against the Person Act which outlaws the procurement of abortions in Ireland as it does in Britain, and that there is no international evidence identifying abortion as a treatment for suicidal ideation among pregnant women.

Dr Maria Cahill, lecturer in Constitutional Law

Hugh O’Flaherty, one of the Supreme Court judges responsible for the X decision, has recently pointed out that the specific circumstances of the case meant that the Supreme Court’s 1992 decision was not binding; Maria Cahill, who lectures in Constitutional Law at University College Cork, noted in the second set of hearings that it would hardly have been binding anyway, at least in connection with the issue of suicide.

Leaving aside that Ireland’s parliament is not obliged to legislate for rights the Supreme Court might discover, Ireland’s Supreme Court ruled in 1965 that legal precedents are only binding in relation to points that are decided in cases, and in the X case nothing was decided on the question of whether abortion was an appropriate treatment for suicidality, for the simple reason that the Attorney General conceded this without argument.

Cahill also pointed out that during the 2006 Cosma Case, Ireland’s High Court built on the X decision to say that “real and substantive risk” could only be demonstrated in light of ongoing psychiatric relationships, all other therapeutic avenues having been considered. The Court backed the then government’s rejection of the notion of suicide-based exemptions from existing laws. There is, Cahill argued, no legal obligation on the Government to legislate for a suicide-based exemption which obviates the State’s duty to vindicate and protect the lives of the unborn as much as is practicable. The real question, she asked, is:

“Is it just to propose that the right to life of one person can be denied if another threatens to commit suicide due to the very existence of that first person?”

Fine Gael, the major party of government, received more seats in the 2011 election than ever before, having reassured voters that it was “opposed to the legalisation of abortion”. This assurance and numerous promises made by individual TDs have been cast aside, as Fine Gael has acted, not in accord with its promises or the Constitution, but the simple demands of a Labour Party that looks set to be reduced to less than half its current parliamentary representation in the next election.

Lucinda Creighton, formerly Ireland’s Minister of State for European Affairs

To force through Labour’s agenda, Fine Gael has imposed a three-line whip on what would normally be regarded as a conscience issue, in which representatives would not be whipped at all. Lucinda Creighton, until last week Fine Gael’s Minister of State for European Affairs, commented after voting against the government that elected members of Ireland’s parliament had been “coerced and cajoled into voting for legislation they clearly considered to be faulty and against their better judgement”.

“In every other modern western democracy that I have studied, public representatives are not and would never be, forced to choose between their conscience and their party. That is worth considering and reflecting upon. This includes Australia, New Zealand, the USA, the Netherlands, Germany, Belgium, Switzerland and many, many more. In my investigations I could not find any other democratic country on this planet that forces people to vote against their conscience. Ireland has the dubious distinction of standing alone in its denial of conscience. This is not something I am proud of. Nobody should be.”

It is all the more ironic that parliamentarians should be driven to choose between their conscience and their party over a bill which runs contrary to their promises when standing for election, and which may well be contrary to the Irish Constitution.

The Constitution, after all, imposes an explicit duty on the state “to vindicate and protect the lives of the unborn as much as is practicable”, and it is hard to see how anybody could look at the Protection of Life during Pregnancy Bill and conclude that the Irish government is doing anything more than paying lip service to its responsibilities in that regard.