Irish Times Vincent Browne from Tuesday May 2nd
The election was supposed to be about stamp duty, trolleys and traffic. Now, uncomfortably, two old familiar issues have intruded: money and abortion. Bertie has got into a terrible tangle on the money issue, a tangle that should have been unravelled last October had the media and the Opposition had the guts to pursue it then. Instead, we allowed a misty-eyed apologia to disarm us. The abortion issue is more difficult, although again because we failed so many times before to deal with it.
Remember how the abortion issue surfaced originally? Abortion had been illegal here since 1861, and in 1974 the Supreme Court said that abortion, as well as being illegal, was also contrary to the Constitution. Nevertheless, a head of steam got up in 1981 to have an explicitly anti-abortion clause inserted into the Constitution. This wasn't because anybody was saying abortion should be legalised here or because there was a new doubt about the constitutional position. It just arose.
And because neither Charlie Haughey nor Garret FitzGerald wanted to be ambushed by an issue they both thought peripheral, they gave in to the lobby and agreed a change to the Constitution, which went through in a referendum in 1983. This said that we could not have abortion at all. It gave equal protection to the right to life of the unborn and to the right to life of the mother.
But then the European Court of Justice in the 1980s caused alarm here that abortion would be introduced by fiat of the European Union, and to guard against this we secured an amendment to the constitution of the European Union. This was the protocol to the Maastricht Treaty in 1992, which decreed that nothing in the constitution of the European Union would have any bearing on Ireland's abortion law. Gerard Collins, the then Fianna Fáil minister for foreign affairs, negotiated this diplomatic triumph.
Then there came the X case. The then attorney general, Harry Whelehan, obtained an injunction prohibiting a 14-year-old pregnant girl from leaving the jurisdiction, knowing that she had already left the jurisdiction.
The Supreme Court decided that, because this girl was considered suicidal as a result of the trauma of her pregnancy, her constitutional equal right to life meant that she was free to have an abortion. This caused outrage among the pro-life lobby, which demanded another constitutional referendum. This was granted, but in late 1992 the people rejected the proposed amendment, which would have ruled out suicide as grounds for permitting an abortion where the equal right to life of the mother was at stake. In that referendum, however, two other amendments were passed: one of these ensured that there was a freedom to travel abroad to have abortions and the other that there was a right to information about abortion services available abroad.
Meanwhile, there was alarm that the Maastricht Treaty would be defeated here because of the triumph of Gerard Collins in having the protocol inserted. It was suddenly appreciated that the protocol might interfere with the right to travel. The government wanted to renegotiate the protocol, which meant opening up the treaty all over again. Our EU partners said no and instead a declaration was added, which had no legal effect whatever. It said that the protocol did not infringe on the right to travel.
The scale of this hypocrisy remains a monument to contemporary Ireland.
We are absolutely opposed to having abortion here but absolutely opposed to any inhibition on Irish people going abroad to have abortions; indeed, we facilitate them by way of as much information as they need to have an abortion.
Just before that late 1992 referendum the Fianna Fáil-led government had said that if the proposal about ruling out suicide as grounds for permitting abortion was defeated it would introduce legislation to deal with the conditions in which abortion was permissible in Ireland.
But when Fianna Fáil returned to government after the election of November 1992, this time in tandem with the reforming Labour Party, nothing was done. And now we are back to square one, or at least several squares back.
The problem now in the D case is that it is not clear there is a "right" to travel to have an abortion that would not be legal here. In a 1998 case, a judge now on the Supreme Court, Hugh Geoghegan, said: "The amended Constitution does not confer a right to abortion outside Ireland. It merely prevents injunctions against travelling abroad for that purpose."
And because the 17-year-old girl is under the care of the HSE, it means, if the opinion of Hugh Geoghegan is to be upheld, that she has no "right" to travel abroad for an abortion and therefore no entitlement to have the HSE ban on her travelling lifted.
All this will raise again the terror of another debate in the midst of an election campaign on abortion. All the parties want to fudge the issue - none want to take on the tricky commitment to legislate for the abortion that the judgment in the X case permits.
Plus ça change, plus c'est la même chose.