Constitutional amendment that led to 30 winters of discontent
ANALYSIS:Successive governments led by Fine Gael and Fianna Fáil received legal advice in the early 1980s pointing to serious flaws in a ‘pro-life’ amendment to the Constitution. Nonetheless it went to a referendum and was carried in 1983
Just who was responsible for the wording of the 1983 “pro-life” constitutional amendment has been a matter of some controversy down the years.
A referendum sought by the anti-abortion lobby to bring legal certainty to the issue has led to 30 years of court cases, further referendums and continuing debate.
State papers for 1982 show that successive governments led by Fine Gael and Fianna Fáil received legal advice pointing to serious flaws in the proposal. But neither was willing to pay the political cost of facing down the influential Pro Life Amendment Campaign (Plac) in a year that featured two general elections.
Plac had raised fears that the existing law could be challenged in the Supreme Court after a number of cases in the UK and the US tested abortion laws there.
It became a major electoral issue, and the two main parties pledged to support Plac by introducing an amendment. But they hadn’t counted on the legal complexities involved, and no fewer than three attorneys general offered advice on the proposed amendment in a 12-month period.
Peter Sutherland, who counselled Garret FitzGerald against the measure, took the unprecedented step of publishing his legal opinion in advance of the referendum in 1983.
It can be compared to advice proffered by Patrick Connolly and John L Murray, who both served in Charles Haughey’s government between February and December 1982.
The documents show the final wording resembles an initial proposal by Connolly aimed at satisfying Plac but that this was revised considerably by Murray, with Haughey’s input.
The files also show that officials in the departments of the Taoiseach and Foreign Affairs expressed concern about the proposal, including its implication for Anglo-Irish affairs, but these concerns were shot down for “political” reasons.
One of Haughey’s first decisions on taking up office in February 1982 was to get fresh legal advice on the proposed amendment. Sutherland’s damning critique, drawn up for Garret FitzGerald’s first government in 1981, was withheld from his successor Connolly but if this was aimed at securing an enthusiastic response it was only partially successful.
Connolly questioned Plac’s core contention that section 58 of the Offences against the Person Act 1861, could be challenged in the Supreme Court to allow for abortion.
“The degree of certainty expressed by the pro-life amendment campaign concerning the state of the existing law seems strange when one considers that in the 121 years that have elapsed since the enactment of that section not one sentence occurs in any Irish reported case concerning its meaning.”
Foreseeing some of the problems thrown up by the 1992 X case, he noted that, “whatever my personal views be”, a rape victim could not be exempted from any constitutional prohibition.
Nor, “in the current climate of what it is sought to achieve”, could the amendment exempt abortion where the mental health of a woman was at serious risk.