Political cowardice must not obstruct abortion law
OPINION:The Supreme Court ruling of 1992 opened the way to legislate, but ‘conscientious objectors’ could again derail this if FG fails to use the whip, write REBECCA MOYNIHANand JANE HORGAN JONES
FINE GAEL has long-established form in delaying progressive social change while in government by failing to impose a whip on key issues. We are potentially faced with a repeat performance in relation to legislation arising out of the X Case.
In 1992 the Supreme Court ruled that abortion was permissible in the Republic when there was a risk to the life of the mother, which included the risk of suicide. Despite the Irish people twice reaffirming this judgment in subsequent referendums, successive governments have shown little appetite to produce legislation to give effect to this ruling.
Minister for Health James Reilly has given a commitment to do so. But a sizeable group of his Fine Gael Oireachtas colleagues are already voicing their reservations in forthright terms. There are worrying reminders of Fine Gael in the 1970s.
In 1973, the Supreme Court held that there was a constitutional right to marital privacy, which incorporated the right to use contraceptives within marriage. At that time women were entitled to own and use contraceptives, but could not legally obtain them within the State.
In response to this anomaly, the Fine Gael-Labour coalition of the day brought forward legislation to regulate the area and allow married couples to obtain contraception in strictly limited circumstances.
However, the Control of Importation, Sale and Manufacture of Contraceptives Bill, 1974 was defeated in July of that year after “conscientious objectors” on the government benches were permitted to vote against it without losing the party whip. Described by one TD as “the greatest farce of a free vote of all time”, the electorate was provided with the bizarre vista of the Fine Gael taoiseach and minister for education voting against a government Bill.
Were they serious about the legislation at all, asked an opposition TD in the immediate aftermath of the vote? You would be forgiven for suspecting they were not.
There must be no repetition of this debacle in relation to the X Case legislation. In 2010 the Republic received an embarrassing admonishment from the European Court of Human Rights (ECHR) when it ruled that this State had not given sufficient reason for the delay in legislating for a woman’s constitutional right to access abortion and was therefore in breach of its obligations under the convention.
It is incumbent upon us, and particularly those of us in the Labour Party who have consistently reaffirmed our pro-choice stance, to ensure this is an issue which can no longer be delayed, ignored or fudged.
If the opportunity is missed during this Government’s term, will a woman have to die for us to regret our reticence in dealing with this problem?
The Coalition’s expert group on abortion, set up to advise on the implications of the ECHR judgment, has now delayed its report until the autumn.
However, it is almost inevitable they must ultimately recommend the Government provide a legislative framework in line with the X Case to allow a woman avail of an abortion within the State where there is a risk to life if the pregnancy is continued.
It seems too Reilly at least recognises the importance of bringing forward legislation to fill this unacceptable lacuna in the law that has existed since the Supreme Court’s ruling in the X Case more than 20 years ago.
The battle therefore may not be getting the legislation proposed as a Bill but ensuring Fine Gael, faced with the possible loss of 10 to 15 of its TDs on the issue, does not attempt to dodge a political bullet by demanding a free vote on a “matter of conscience”.
Such an approach, as in 1974, would likely mean any Bill providing for abortion, even in such limited circumstances as the X Case, would fall – an unthinkable prospect when national polls have consistently shown public support for X Case legislation.
Put simply, any argument for a vote of conscience on a social issue does not apply when the legislation is necessary to give effect to the Constitution.
The decision on X was made by the Supreme Court in 1992. More recently, the ECHR ruled our failure to legislate means we are in breach of our obligations under the convention. The people, on two separate occasions, 1992 and 2002, stated the X Case and the Supreme Court ruling on X should stand.
This is not a matter of conscience; it is a question of accepting the Constitution is the highest law in the land, and the Supreme Court the final authority on its interpretation.
Demanding legislation in these circumstances is not remotely radical. To suggest we can do otherwise is anti-democratic and allows a group of vocal regressives to overrule the wishes of the silent majority.
The refusal of some to give effect to this constitutional right because it is a matter of conscience is all the more surprising when, in the next breath, they will roundly criticise those who refuse to abide by other laws on similar grounds – most notably in relation to the household charge legislation.
To behave like this is á la carte moralism of the worst kind.
Passing legislation for X is the obligation of this Government; as it was for the previous six. Political cowardice has always won out over the clear need to pass laws that give effect to our Constitution.
We have a unique opportunity now to buck that trend. To do so collectively as the Government of the day would be historic. Failing to do so would be inexcusable.
We must reject out of hand any attempt by Government TDs, either with or without official sanction, to avoid supporting any such legislation if it is brought forward.
Rebecca Moynihan and Jane Horgan Jones are Labour Party members of Dublin City Council