Going back to the 1861 Act on abortion could be the way forward for us

An atheist once likened the quest for proof of God's existence to a blind man in a dark room looking for a black cat that is …

An atheist once likened the quest for proof of God's existence to a blind man in a dark room looking for a black cat that is not there. The aphorism is an apt summation of the search for a "perfect" constitutional wording prohibiting legislation for abortion.

This futile pursuit has agitated the body politic in Ireland for more than 20 years. In 1979 the Pro-Life Amendment Campaign began. Dissatisfied with the 1861 legislation outlawing abortion, pro-life activists wanted to put a constitutional padlock on the legislative door.

These astute, emotional, and well-financed campaigners soon had success. The Roman Catholic hierarchy lent its voice to the project. In the years after the triumphant success of the papal visit and before the traumatic revelations of clerical sexual scandals, traditional Irish Catholicism enjoyed a golden twilight.

Emboldened by the numbers who came out to greet the Pope, church leaders saw the popular acceptance of a constitutional prohibition on abortion as being a further indication of renewed strength against the "filthy tide" of modernity. For an Irish Catholic to be opposed to abortion was as natural as to be for motherhood, the GAA, and home-made bread.

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Some of the more thoughtful church leaders may have kept their reservations to themselves, fearing the opprobrium of rightwing Catholic activists who are always assiduous in reporting any perceived doctrinal or moral laxity to the Vatican.

There was little ecumenical sensitivity evident at the time. The other Christian churches stressed their opposition to abortion but held that its prohibition in the Constitution was not a proper matter for such a document.

Nor was the hard question asked: How could a pithy constitutional formula be found which would vindicate the equal right of the mother and child to life and yet allow for the necessary medical exceptions where the mother might require, during pregnancy, immediate life-saving treatment that could result in the unintended death of the foetus?

One bishop later admitted to me that he had given the possible implications little thought and just assumed an amendment would be "a good thing".

In September 1983 the eighth amendment to the Constitution was passed. It read: "The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to defend and vindicate that right."

Under its terms, the then Attorney General in the 1992 X case sought an injunction preventing a 14-year-old alleged rape victim from going to the UK for an abortion. The High Court upheld the application.

The Supreme Court overturned it, arguing: "If it is established as a matter of probability that there is a real and substantial risk to the life as distinct from the health of the mother, which can only be avoided by the termination of her pregnancy, that such termination is permissible in accordance with the eighth amendment to the Constitution."

So abortion became legal in Ireland through the agency of a provision designed to ensure its prohibition!

There are lessons to be learned from this sorry story. Complex medical realities do not admit of succinct encapsulation in a constitutional formula. Roman Catholic leaders should be wary of ideologues, no matter how well intentioned, whose fervour clouds their capacity for rational understanding of what is possible or appropriate in a modern pluralist democracy.

There is nothing, after all, in Catholic moral theology or canon law that obliges them to continue supporting the pro-life demand for a new constitutional amendment. Politicians should demonstrate leadership and not be afraid to say "no" to intense lobbyists whose sense of direction leads into a cul-de-sac.

Where to from here, in a context in which more than 6,000 Irish women had abortions in the UK in 1999? The recent all-party committee report on abortion offers a valuable suggestion. It proposes that the Department of Health and Children sets up an agency having responsibility "to draw up a plan" to reduce the number of crisis pregnancies, agreeing targets, and ensuring the efficiency and effectiveness of the plan.

The committee differed on the legal approach and offered the Government three courses of action: (1) to leave the legal position as it is; (2) to legislate in accordance with the Supreme Court ruling of 1992; and (3) to have a new constitutional referendum prohibiting abortion.

For my own part, I think there is considerable merit in an approach not offered by the committee - a referendum to remove the eighth amendment to the Constitution and a return to a reliance on the 1861 Act.

This proposal will not satisfy the pro-life activists or those who favour the provision of abortion. I sense it may meet the point the majority of the people of Ireland are at - opposed to abortion yet wanting our doctors to have the freedom to offer life-saving treatment to pregnant mothers who require it, even if such treatment results in the unintended death of the foetus.

How about returning to the place where we were in 1983, and knowing its value for the first time?

Father Kevin Hegarty is a priest in Belmullet, Co Mayo, and is editor of Ceide magazine.