Subscriber OnlyOpinion

Fintan O’Toole: Abortion is the Jarndyce and Jarndyce of Irish politics

Eighth Amendment needs to be finally uprooted, not fertilised with yet more equivocations

It is a great Irish achievement to make the question of termination so utterly interminable. Abortion is the Jarndyce and Jarndyce of Irish politics, our national version of the infamously unending court case in Charles Dickens's Bleak House: "Jarndyce and Jarndyce drones on . . . Innumerable children have been born in the cause; innumerable young people have married into it; innumerable old people have died out of it . . . whole families have inherited legendary hatreds with the suit."

Once upon a time – in the early 1980s when the Eighth Amendment to the Constitution was hatched – abortion was a cypher for the meaning of Irish modernity. But by now it is purely postmodern. It is an entirely self-generating discourse with no meaning outside itself. Our ancestors would have represented it by the ouroboros, the ancient symbol of the serpent trying to swallow its own tail.

It is not just that the relationship of the official discourse to what Irish women and Irish couples actually do in their lives has grown more and more abstract. It is that the more distant that relationship becomes, the more laws, regulations, reports, judgments, committees and hatreds the system generates.

Too much law

I am not sure if there is a disease called hyperlexia, the condition of having far too much law. But there ought to be because Ireland has a bad case of it.


Let us draw a very deep breath and try to list the laws that have sought to control the body of an Irish woman who is pregnant and may wish to terminate the pregnancy: section 58 of the Offences against the Person Act, 1861; section 59 of the Offences against the Person Act, 1861; the ethical guidelines issued by the Medical Council, under the Medical Practitioners Act, 1978; section 10 of the Health (Family Planning) Act, 1979; the Eighth Amendment to Bunreacht na hÉireann, 1983; the decision of the Supreme Court on March 5th, 1992, in The Attorney General v X and Others; the 13th Amendment (right to travel) to Bunreacht na hÉireann, 1992; the 14th Amendment (right to information) to Bunreacht na hÉireann, 1992; protocol No 17 to the Maastricht Treaty on European Union, 1992; the solemn declaration of the foreign ministers of the member states of the EU as adopted on May 1st, 1992; the Regulation of Information (Services outside the State for Termination of Pregnancies) Act, 1995; the Protection of Life During Pregnancy Act, 2013; the revised Medical Council guidelines of 1998, of 2009 and of 2016.

And then there are multiple judgments of the High Court, the Supreme Court and the European Court of Human Rights. The EU’s European Court of Justice and the United Nations through its conventions have also had their say.

It is a mountain of public verbiage that buries the private and intimate realities of women's lives

And this is not to mention two failed referendums on proposed modifications to the Eighth Amendment, and the reports of constitutional review groups, all-party committees, a citizens' convention, Green Papers, White Papers. Like Jorge Luis Borges's Library of Babel, Irish official discourse on abortion has expanded to become an entire universe.

Within this self-generating universe, there are disputes as exquisitely esoteric as any of those that consumed the lives and passions of medieval theologians.

For example, if the law against abortion prohibits the destruction of unborn life and the law against murder prohibits the taking of the lives of those who have been born, is there a loophole that makes it lawful to kill a baby while it is being born? Or, more currently, since the protocol that was inserted at the insistence of the Irish government into the Maastricht treaty refers to article 40.3.3 of the Constitution, does that mean only the article as it then was or does it cover subsequent amendments?

British law prevails

And it’s all gesture. It is a mountain of public verbiage that buries the private and intimate realities of women’s lives.

For the most vulnerable women, it creates danger, distress and misery, but for the most part it does nothing at all. So far as I know, there has not been a single prosecution for having or performing an abortion in Ireland since 1974. The vast majority of the women who want them get terminations in England.

The only real law that governs what they do is Britain’s Abortion Act of 1967 – and it has been like this for 50 years now. Once we put the right to travel for an abortion into the Constitution, we essentially conceded that British law prevails.

All the rest is Jarndyce and Jarndyce and Jarndyce and Jarndyce, a sterile inheritance of legendary hatreds.

The only cure for this hyperlexical disease is to remove its cause. We don’t need to add more exquisite nuances, more excruciating niceties, more unenforceable restrictions. We don’t need another hybrid of religion and law which will in turn generate its own jungle of verbiage.

We need to uproot the Irish knotweed which is the Eighth Amendment, not to fertilise it with yet more equivocations, circumlocutions and mental reservations. Irish women have abortions. If they are murderers, arrest them. If they are not, let them have the dignity of making choices in their own country.

Until we decide one way or the other, Ireland will be a bleak house for honesty and reason.