It is difficult to know whether political cowardice or religious scruples are guiding the Government in its response to a 20-year-old Supreme Court judgment in the X case. Whatever the cause, the result is unacceptable. A referendum that would address the substantive issue and liberalise the availability of abortion under the Constitution has already been ruled out. Apart from that, the requirement on successive governments to legislate for the Supreme Court judgment may once again be shirked.
The tragic death of Savita Halappanavar has focused attention on “grey areas” of medical judgment and procedure, acknowledged by the medical profession and identified by the European Court of Human Rights and the Supreme Court as requiring legal clarification. The circumstances of her death have yet to be investigated. But the fact of her death has brought public protests and a call for change.
Because of internal divisions and pre-election undertakings, Fine Gael does not favour the introduction of primary legislation. Instead, there is talk of the Medical Council and the Health Service Executive being asked to “strengthen” existing medical guidelines, which would then be given legal force through ministerial order. That would amount to an abdication of political responsibility.
The tactic of delay – perhaps to allow public pressure dissipate – is being actively promoted by the Government. Differences of approach exist between Taoiseach Enda Kenny and Tánaiste Eamon Gilmore on what should be done and when. Mr Kenny has spoken about not being “rushed” and has assured party members that “huge changes” are not contemplated. Mr Gilmore favours early, legislative change. Rather than engage in confrontation, the issue is being finessed. An official report on how the Government might respond to a critical European Court of Human Rights ruling is being withheld. A medical inquiry into the circumstances surrounding the death of Savita Halappanavar will last for months. And Government action, on foot of these reports, may not follow before the summer recess.
This political storm has been building since an expert group was asked to advise the Government on what should be done in response to the court judgments. An indication by Minister for Health James Reilly that he favoured legislation, early this year, brought a Fine Gael backbench revolt. Cardinal Seán Brady then advocated a political lobbying campaign against abortion legislation. The death of Savita Halappanavar has brought cruel clarity to the issues involved, in the place of dry, theoretical discourse. The care of pregnant women should be regulated in accordance with the Constitution. Early, primary legislation is required.