Wednesday, 14 December 2016

Amend the Constitution so that the Oireachtas is responsible for abortion law

Submission to the Citizens' Assembly.

While the 8th Amendment was being debated in 1983 the Attorney General proposed an alternative wording, making the Oireachtas responsible for abortion law. I believe history has shown this to have been the better approach.

Ireland's policy on abortion is incoherent and this cannot be rectified as the Constitution stands. If a pregnant woman takes an abortifacient within the jurisdiction she is committing a serious crime, whereas, if she temporarily leaves the jurisdiction in order to do so, she is exercising a constitutional right granted by referendum (the 13th Amendment). The Constitution does not require that abortion be outlawed, it merely requires that it be outsourced. What is called “the right to life of the unborn” is in reality the right to a one-way trip to the UK at the woman's expense.

This is a hypocritical policy stance, as opponents of the 13th Amendment pointed out when it was being debated in 1992. Ms Caroline Simons, of the Pro-lIfe Campaign, spoke of "affecting to protect the unborn child while facilitating its destruction outside the state" (Irish Times, Nov. '92). It is important to confront the fact that the right to travel, protected by Article 40.3.3, is specifically for the purpose of obtaining an abortion.

We arrived at this indefensible position by seeking to straddle two incompatible values: concern for unborn life and respect for the autonomy of women. If we continue to make our laws on abortion by referenda we are likely to stumble from one unworkable compromise to another. The task is better dealt with by legislators. They have a strong incentive to reflect the views of their constituents, but, unlike voters, they have to consider practical problems of implementation as well as the need to treat offences in a consistent way.

A good example of how direct appeal to voters breaks down is the public's attitude to pregnancies resulting from rape. Opinion polls show support for permitting abortion in such cases but there is resistance to abortion ”on demand”. However it is clearly impractical to control abortion access on that basis; the decision cannot be postponed until a trial has taken place. It is also indefensible in principle. Either the unborn has a right to life, which trumps the woman's wishes, or it does not. This cannot depend on the circumstances of conception. The need for consistency is a major reason why we employ legislators and judges rather than the kind of direct democracy practised in ancient Athens.

We cannot be certain how TDs will respond to the challenge of legislating for abortion when deprived of the excuse that the Constitution ties their hands. Hopefully they will see that the question for policy is not what conduct is immoral, but what acts we must criminalize. Our present law is only tolerated because it is not enforced. It is common knowledge that women use abortifacients in defiance of the law. But unenforced laws come to be despised and that brings the law in general into contempt.

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