AG doubted need for 'pro-life' clause

The attorney general who provided the first draft of the 1983 “pro-life” constitutional amendment expressed doubts as to whether it was necessary or desirable, newly released State papers show.

Both Fianna Fáil and Fine Gael made pre-election pledges in 1982 to introduce the amendment after campaigners raised fears that the existing law could be challenged in the Supreme Court.

However, giving legal advice to then taoiseach Charles Haughey, Patrick Connolly SC warned of “worrying ambiguities” in the “pro-life” lobby’s arguments, and questioned their main contentions.

Writing in June 1982 as political pressure mounted over the issue, he stated he was “not absolutely clear” what the government hoped to achieve with the referendum, and stressed the need to balance any newly ascribed right for the unborn with preserving “for the mother a right to have her life saved”.

Connolly’s predecessor, Peter Sutherland, had 10 months earlier advised former taoiseach Garret FitzGerald against the proposed amendment, describing it as “positively undesirable” from a legal viewpoint.

Nonetheless, it was passed by the people in September 1983.

The declassified papers show that a decision was taken in Haughey’s office not to forward Sutherland’s advice to Connolly when Fianna Fáil took power in February 1982.

A letter was drafted to the new attorney general in March 1982, noting the government’s commitment to introducing a “pro-life” amendment and seeking his early advice on an appropriate wording.

A second paragraph on the draft letter read: “I should mention that your predecessor in office, Mr Peter Sutherland SC, had reservations about the desirability of a Pro-Life amendment, and I attach, for your information, a copy of a letter which he sent to Dr FitzGerald in the matter.”

This paragraph was then crossed out, and any reference to Sutherland’s objections was omitted from the letter ultimately sent to Connolly, which was signed by Haughey.

Connolly replied with a 13-page memorandum, proposing a wording but also questioning key assertions of the “pro-life” campaign.

“The pro-life amendment people . . . state with quite extraordinary confidence that the present law permits operations to save the life of the mother. However, it is not at all clear whether they mean all operations where the life of the mother is in serious and imminent danger or only some selected operations.”

The issue was “quite frankly dodged” in their public statements.

Connolly proposed that any declared right to life of the unborn in the amendment should be “subject to the right to life of other persons”.

His successor, John L Murray SC, a future chief justice and now a Supreme Court judge, prepared a further memorandum based on Connolly’s advice.

However, he wrote: “I’m not happy with making the right to life of the unborn subject to another right to life, namely that of the mother”, adding “if the broader interpretation were given it would bring us onto the slippery slope down which many countries have already gone”.

He proposed instead giving “due regard to the preservation of the life of the mother” in the amendment.

This phrase was later revised in the final text to “with due regard to the equal right to life of the mother”.