Monday, 28 January 2013


The tragic death of Savita Halappanavar has fanned the embers of the Irish abortion debate, which until then had been smouldering away, ignored by most of the population, including me. At times it seems like we’re back where we started following the launch of the Pro-Life Amendment Campaign (PLAC) in 1981, with Professor William Binchy reprising his old role as champion of the Unborn. It’s a bit like seeing Franco Nero resurfacing in Django Unchained. I thought he must be dead by this time, but actually he has worn rather well. One big difference with this flare-up is that the debate now has an international flavour as American bloggers enter the lists. I welcome this. It livens things up. But it also creates scope for confusion, since Ireland looks deceptively like a US state from certain angles. I want to address two particular sources of confusion in this post:

(1) what the Irish debate is mostly about; and

(2) the idea that Irish law has a particularly Catholic flavour.

“Hard cases make bad law.” We heard that adage frequently from PLAC in the debates leading to the Eighth Amendment (1983):

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.

What PLAC meant about hard cases, I take it, was that the Constitution should merely state the general principle and allow doctors and lawyers to decide whether, for example, a zygote is unborn and therefore has rights, and how the limits of the practicable are to be determined; trust the experts. Unlike Messrs Binchy and Nero, this dictum hasn’t aged well. That is because the only abortion cases which Irish hospitals and law courts need consider are hard cases. For the vast majority of women requiring abortions the main difference between living in London and living in Dublin is the airfare, typically around €130 return. In practical terms, there must be many locations in the US where obtaining an abortion is more difficult than it is for Irish women.

The very success of PLAC means that the Irish abortion debate is concerned exclusively with hard cases, where a pregnant woman has at least a colourable argument that her “equal right to life” is at stake. I stress this because anti-abortion campaigners are wont to frame the issue as if we were discussing abortion on demand. No doubt they fear that any relaxation of the law will put us on that slippery slope, which is quite possible, but we can’t slide very far without another referendum on the Eighth Amendment.

So the sort of thing we are debating is:

* What facilities should be in place in cases where a pregnant woman’s life is acknowledged to be in danger? The European Court of Human Rights finds it unsatisfactory that she should be expected to have her abortion in England. I certainly agree.

* What if the threat to her life arises because she is suicidal, as in the X case? Under current law, the nature of the threat to her life is irrelevant. Obviously this is totally unacceptable to anti-abortion campaigners. I expect the legislation will be a fudge, allowing an abortion in the unlikely event that two psychiatrists approve.

* Lawyers, including those representing the government, believe that the Constitution as it stands may allow abortion in cases of fatal foetal abnormality. Should that be provided for by legislation? That makes sense to me.

By Irish standards, these views are enough to make me a liberal. Pretty clearly, they are rather tame by American standards.

So much for the first confusion I wanted to address. The other one springs from the tendency to assume that Irish abortion law is written to the specifications of the Catholic Church. In reality the source, for most purposes, is the Offences Against the Person Act 1861 of the (then staunchly Protestant) UK Parliament. The consequence is that the distinction “between killing someone directly and allowing someone to die of indirect causes” which is so important to Catholic moralists, doesn’t appear to concern the Irish Supreme Court at all. I’m not a lawyer, but I’m pretty sure that any of the three methods of dealing with an ectopic pregnancy mentioned in that link could be used in Ireland without risk of prosecution. Basically, the law permits killing in self-defence, whether the threat comes from a deranged gunman or a misplaced foetus.

All this is by way of a reply to a question put to me on Twitter, where I have been sounding off on these matters.

[Post updated to reflect the fact that I've changed my Twitter handle.]