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Column: Why does this Government refuse to hold a referendum on abortion?

81% of respondents to a recent poll indicated they wanted abortion allowed in cases of fatal foetal abnormality. Yet 88% of TDs abstained or voted no on the issue.

Donal O'Keeffe

“YOU DO NOT own the Constitution,” the Taoiseach told Clare Daly TD this week. “It’s the people’s Constitution and they are the only ones that can change (the Constitution).”

He spoke as the Dáil voted to reject Deputy Daly’s private member’s bill to legislate for terminations for medical reasons in cases of fatal foetal abnormalities. When Deputy Daly described, in heartbreaking detail, the lonely journey of parents with non-viable pregnancies forced to travel to the UK and made to await the return of their child’s ashes “in a jiffy-bag”, the Taoiseach told her precisely why he has no intention of legislating on this matter. Personally, I thought his remarks were both refreshingly honest and deeply depressing.

“You know as well as I do,” the Taoiseach said, “that when the conversation starts about fatal foetal abnormalities – and the complications and the sensitivity and the tragedy of that – that it automatically goes along the line in respect of where pregnancy occurs because of incest or where pregnancy occurs because of rape and where the discussion starts about the entire situation in so far as the Eighth Amendment is concerned… I don’t propose to go there, arising from your Bill and clearly your Bill is, on the advice of the Attorney General, unconstitutional.”

The result was, in the end, predictable. Tá 20, Níl 104.

The Eighth Amendment

Labour’s Anne Ferris was the Government’s only woman overboard. Some of us remembered the old joke that the Irish Labour Party always wrestles with its conscience and, in the end, the Irish Labour Party always wins. In Labour’s defence, at least they voted. Sinn Féin didn’t even bother to show up to abstain, reminding yet again that – despite its completely undeserved reputation with some supporters as being pro-choice – Sinn Féin is the party which in the North effectively vetoed the introduction of abortion.

Three decades after Catholic fundamentalists got their hands on Ireland’s Constitution and planted their Eighth Amendment as a bulwark against the oncoming tide of liberalism, we are still grappling with the unholy mess they left. It was foisted on supine politicians in 1983 and voted for by 850,000 people. The youngest of those voters is in their fifties now.

The law in application 

The Eighth Amendment gave us Article 40.3.3 of the Constitution, which states that mother and unborn have equal rights to life and the State will vindicate those rights where practicable. In effect, a woman, a sentient person, is reduced in value to being of the same worth under Irish law as a days-old cluster of cells within her.

Thus, a young rape victim can be denied an abortion and can be forced to stay pregnant against her will until such time as the pregnancy is (barely) on the cusp of viability outside of the womb and then she can be carved open by C-section. As happened last year to Ms Y.

Or the very meaning of life and the very meaning of death can be twisted and reduced to the stuff of nightmares because doctors fear prosecution for murder if they allow a brain-dead pregnant woman a natural death. As happened last Christmas to Ms P.

Or a parent whose child will not survive is forced to carry it to full term or, as Clare Daly described, take a ferry to Liverpool while surrounded by holiday-makers and strangers.

Does this government have a mandate to call a referendum?

Alan Shatter, the former (and if you’re like me, a worried supporter of the Marriage Equality referendum, the grudgingly-lamented) Justice Minister said this week that it’s past time that Fine Gael faced up to abortion and held a referendum.

The Taoiseach and others have consistently said that this government doesn’t have a mandate to call such a referendum, a claim which I think is complete bunkum. Fine Gael might not have such a mandate but its coalition partner Labour, the only party calling for the repeal of the Eighth Amendment, certainly does.

To be honest, the Taoiseach might just as well claim to have no mandate to hold a referendum on marriage equality – after all, it’s not so long since Enda nearly creased himself falling over potted plants on the Plinth while trying to avoid answering questions on that same issue – and I know a few rural Fine Gael voters shell-shocked to realise suddenly they live in a world with gay people in it at all, let alone gay people who want to marry.

Did Labour have a mandate for enforcing austerity?

I also know Labour supporters who say Joan Burton has no mandate to scalp all around her in Social Protection but that didn’t stop her. (The Tanaiste and her defenders would of course say that without them, the Blueshirts would have gone to town altogether.)

This government – like all others – has no trouble in hiding behind programmes for government and coalition compromises when it suits them. The crux of the particular argument against Clare Daly’s Bill was that the Attorney General had advised it was “repugnant to the Constitution”. Specifically, under Article 15 of the Constitution, the Oireachtas may not enact a law it deems unconstitutional.

Deputy Daly’s response was, in essence, let’s have President Higgins put it to the Supreme Court and we’ll see. That won’t happen. Neither will a referendum. Fine Gael doesn’t want a repetition of the Protection of Life During Pregnancy Bill, which cost them Lucinda and the Lucindistas. The Tanaiste told the Labour parliamentary party this week that there can be no further movement on the issue of abortion during the lifetime of this Government because of an agreement with Fine Gael.

Faced with the prospect of hanging separately, this Government will hang together a while longer. Fatal foetal abnormality? Terribly sorry, but we have a country to run.

The lives of many women will remain full of suffering

In the wake of the Dáil’s rejection of Daly’s Bill, RTÉ’s Philip Boucher-Hayes tweeted something which I thought was damning. Referencing the previous night’s Amárach poll on “Claire Byrne Live”, he said: “Last night 81% of voters indicated they wanted abortion in cases of fatal foetal abnormality. This evening 88% of TDs abstained or voted no.”

On Prime Time that night, when confronted with the idea of a women with a non-viable pregnancy being forced to carry her pregnancy to term just for the sake of ideology, the pro-life Senator Fidelma Healy-Eames said (with a most unfortunate laugh) “I wouldn’t like to think that a little baby was suffering, but you know, life is full of suffering.”

You’re right there, Senator. Life is full of suffering. And, until such time as we are able to take back our Constitution, Article 40.3.3 will continue to ensure that the lives of many women will remain full of suffering, much of it unnecessary.

“It’s the people’s Constitution and they are the only ones that can change (the Constitution).” You’re right too, Taoiseach. It is our Constitution. Now give us a referendum and let our voices be heard.

Repeal the Eighth.

Donal O’Keeffe is a writer, artist and columnist for TheJournal.ie. He tweets as @Donal_OKeeffe.

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