How do you define abortion?

If abortion is to be banned in the Constitution it is necessary to have a clear definition of it. People must have a clear idea of what is banned: justice demands legal certainty. The committee has been offered a wide range of definitions. One of the most straightforward is that abortion is the killing of innocent babies and killing offends against the commandment 'Thou shalt not kill'. This definition would be morally conclusive if the commandment were itself absolute - if it always applied in its simple, direct sense. However, the commandment has never, throughout history, been applied in that sense. It has been qualified to allow people to kill in 'just' wars, in holy wars such as the crusades, to execute criminals convicted of capital offences in courts, to allow a person to kill in self-defence, to allow the unborn to die to save the life of the mother.

Ms Lelia O'Flaherty, who attended the hearings and asked to be heard, told the committee:

There has been a lot of discussion at these hearings as to a definition of the word abortion. There may very well be various dictionary definitions of the word but what the vast majority of people in Ireland anyway and worldwide understand when you refer to abortion is the direct and intentional killing, by whatever means, of an unborn child at whatever stage of his or her development from conception up to birth and including birth. At the moment of birth, the killing of the child is called partial birth abortion. After birth the killing of the child is called infanticide. In the UK recently there was discussion on the possible acceptance of fourth trimester abortion, that is, killing a child up to three months after birth.

In his evidence to the committee Dr Declan Keane, Master of the National Maternity Hospital, Holles Street, Dublin, said:

... it is critical always, whenever anyone is discussing any topic, to define what one means by it. In the medical profession we have always defined - and in the clinical textbooks - an abortion as a pregnancy that is lost in the first trimester of pregnancy. It is unfortunate that the term 'abortion', certainly in the lay press, has become synonymous with the termination of pregnancy induced by a variety of means. But, as I say, an abortion is a pregnancy lost in the first trimester of pregnancy, which is up to fourteen weeks.

A miscarriage, technically, was the definition of a loss of a pregnancy between fourteen weeks up to a period of viability of the foetus, which used to be taken as twenty-eight weeks but which is increasingly coming down because we can now keep babies alive from about twenty-four weeks' gestation onwards. However, I think in terms of the debate that we are having here at the moment and your committee, we are talking about abortion in terms of terminating a pregnancy, and that is what I have taken it to mean ...

Dr Sean Daly, Master of the Coombe Women's Hospital, Dublin, said:

The medical term 'abortion' that I understand means the premature ending of a pregnancy before the foetus or baby is viable - that can happen spontaneously and, in general, we refer to that as a 'miscarriage' - but that whenever there is a medical condition that necessitates that the pregnancy needs to be ended before the foetus is viable, that is what I would consider an abortion. Now, certainly, there are different indications for it but, broadly speaking, I think that that is what an abortion refers to.

Professor John Bonnar, Chairman of the Institute of Obstetricians and Gynaecologists, in agreeing that doctors use the term abortion to embrace miscarriages, adverted to the definitional complexities:

I agree that is one of the definitions. The other one that we usually teach is the expulsion of the foetus-placenta post-conception prior to the age of viability, but the understanding of all that is from a uterus, a pregnancy in the womb. When you get these simple definitions, they are not going into the complexities of pregnancies that end up in the ovary or in the fallopian tube or in the abdomen or in the cervix. They are not talking about a woman with cancer of the neck of the womb.

They are talking about a healthy woman with a normal intra-uterine pregnancy, where a pregnancy is developing, a healthy pregnancy in a healthy woman. When we talk about termination or legal abortion, we are talking about intervening in that situation with the direct intention of taking the life of the foetus or unborn. That is what we mean by procured abortion. We do not talk about a doctor dealing with a mother with severe pre-eclampsia as procuring abortion, or dealing with an ectopic pregnancy as procuring abortion, or dealing with cancer of the cervix as procuring abortion.

Professor Eamon O'Dwyer, Professor Emeritus of Obstetrics and Gynaecology at NUI Galway, in referring the committee to the submission of the Institute of Obstetricians and Gynaecologists, indicated how the definitional complexities were compounded when one sought to connect medical and legal terminology:

Professor Bonnar's submission from the Institute had a rather tortuous gestation - let us put it that way - and there was more than one draft. I disagreed with him on the use of the word 'termination', which appeared in it at first. He amended that to 'therapeutic termination' - I think that is what the word is.

Chairman: The words are 'therapeutic intervention'.

Professor O'Dwyer: Yes, 'intervention'. I objected to the use of the word 'intervention' because I said: 'Intervention to me will lend itself to all sorts of constructions, legal constructions, and I would be much happier if you would use the word "treatment" '. Then this thing, 'intervention' appeared in the last paragraph too, I think, and he took it out there and he put in the word 'treatment' and I said: 'Now, hold it, John. You should put a comma after that word "treatment" and put in "other than abortion" '. Because, you remember that a judge of the High Court said that abortion was medical treatment by any definition and I said 'we leave ourselves open to being caught there and we have been caught with the other one'. Now, interestingly, therapeutic intervention has been interpreted by at least one University College Dublin graduate in the US, writing recently, who said that the Institute is allowing for termination of pregnancy in certain cases and he said what is therapeutic intervention if it is not termination of pregnancy?

Dr Alistair McFarlane, a consultant obstetrician gynaecologist, in his submission adverted to the transmigratory tendency of words:

Words also change their usage; we often carelessly say that their 'meanings' have changed. Thus once, if we wrote in a patient's case notes that she had had two abortions, we meant that there had been two miscarriages. The word miscarriage was avoided in notes as being a lay term. Now however it is readily used, because abortion now has come to mean in both medical and lay usage the destruction of an embryo or foetus at a hospital or private clinic (usually in Britain). We do need a term to apply to the deliberate ending of the life of a little human being by whatever means, the action having been taken before birth and where he or she could have survived with recognised antenatal care. So why not use the word 'abortion' - after all that is how we mostly use the word nowadays.

Even the term 'termination of pregnancy' which is often used as a synonym for abortion was exposed to the committee as being ambiguous.

Dr Seán Ó Domhnaill, a representative of Youth Defence at the hearings, said:

There is a difference between a termination of a pregnancy and a termination of the life of the unborn child.

Deputy J. O'Keeffe: What is the difference?

Dr Ó Domhnaill: The difference is that you can terminate a pregnancy by going into labour. You can terminate the life of a child by killing it. Every pregnancy is eventually terminated.

It is the nature of definitions to cabin and confine the meaning of words. Dr TK Whitaker, the Chairman of the Constitution Review Group, 1995-96, observed in his address to the committee:

As regards definitions, I expressed great caution about that controversial matter in the submission. Nevertheless, I do believe that the time has come to begin to attempt some definitions and I would favour doing this legislatively. I don't think the Constitution is the place for definitions, particularly definitions that must be tentative and be subject to review in the light of advances in science.

I think perhaps a start could be made with the term 'pregnancy'. That is what we are dealing with - termination of pregnancy. It is clear to everyone when it ends, but when does it begin? When does an unborn come into existence? Should there not logically be some clarity as to what we want to protect?

Rev Paul Tighe, a representative of the Irish Catholic Bishops' Conference, agreed that there was a difficulty in using the term abortion in a referendum proposal:

I think there is a real difficulty in terms of the first option when it speaks of the ban on abortion because abortion, as the evidence from the previous submission shows, can cover simply spontaneous miscarriage. It can also be used to talk about any death that occurs as a result of medical treatment. Within the Catholic tradition we would always have distinguished between a direct abortion and an indirect abortion - a direct abortion being an abortion which happens where there is a direct and intentional killing of the unborn child. I suppose that distinction is rooted in our general distinctions. It's not confined to the Catholic tradition. You'll find it in medical ethics. You'll find it also in law at times that general distinction between a direct and indirect consequence of one's actions. I think that's where it's rooted.

Professor William Binchy, Legal Adviser to the Pro-Life Campaign, told the committee:

We are not wedded to any word and we are not specifically wedded to the word 'abortion' appearing in any particular text ... it's not so much the language that counts here, it's the activities that are done and the context in which they are done that's important - the principles that underlie the activities in question.

How should we respond to the X case?

The defendant in the X case was a fourteen-year-old girl who became pregnant after being raped by the father of one of her schoolfriends. The girl and her parents decided that the best course of action was to travel to England to procure an abortion. The parents made known to the Gardaí that they were considering this course of action and suggested that someone in England could carry out a forensic test on the foetus to ascertain the identity of the father. The garda concerned explained that he did not know whether such evidence would be admissible but that he would make inquiries. A legal opinion was sought from the office of the Director of Public Prosecutions (DPP) and the advice obtained was that such evidence would be inadmissible in court.

The DPP informed the Attorney General about the matter. The Attorney General as guardian of the public interest applied for an interim injunction from the High Court restraining the girl and her parents from interfering with the life of the unborn, from leaving the jurisdiction for nine months and from procuring or arranging an abortion within or outside the jurisdiction. On hearing about this order the defendants, who were in England, cancelled the arranged abortion and travelled back to Ireland. They sought to have the interlocutory injunction set aside on the grounds that they had the right to travel from the jurisdiction to do what was lawful elsewhere, that the mother's right to life was in peril and that such injunctions were unprecedented and ought not to have been granted. Their motion was treated by consent as a full trial and the defendants offered oral testimony from a psychologist to the effect that, in view of the girl's threatened intentions, there was a risk that she might commit suicide.

In the High Court Costello J granted the injunctions sought by the Attorney General. The defendants appealed to the Supreme Court. The Supreme Court, in a four to one majority judgment, allowed the appeal.

In the crucial passage in the judgment, Finlay CJ laid down the test to be applied in such cases:

I therefore conclude that the proper test to be applied is that 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, such termination is permissible, having regard to the true interpretation of Article 40.3.3o of the Constitution.

Looking at the psychological evidence in the case the Chief Justice held that the test was satisfied on the facts of the case before the court:

In my view, it is common sense that a threat of self-destruction such as is outlined in this case, which the psychologist clearly believes to be a very real threat, cannot be monitored in that sense and that it is almost impossible to prevent self-destruction in a young girl in the situation in which this defendant is if she were to decide to carry out her threat of suicide. I am, therefore, satisfied that on the evidence before the learned trial judge, which was in no way contested, and on the findings which he has made, that the defendants have satisfied the test which I have laid down as being appropriate and have established as a matter of probability, that there is a real and substantial risk to the life of the mother by self destruction which can only be avoided by the termination of her pregnancy.

The Chief Justice went on to consider the balance between the right to life and the right to travel and concluded:

Notwithstanding the very fundamental nature of the right to travel and its particular importance in relation to the characteristics of a free society, I would be forced to conclude that if there were a stark conflict between the right of a mother of an unborn child to travel and the right to life of the unborn child, the right to life would necessarily have to take precedence over the right to travel.

In his judgment McCarthy J considered how to balance the right to life of the unborn and the right to life of the mother:

It is not a question of balancing the life of the unborn against the life of the mother, if it were, the life of the unborn would virtually always have to be preserved, since the termination of pregnancy means the death of the unborn; there is no certainty, however high the probability, that the mother will die if there is not a termination of pregnancy. In my view, the true construction of the Amendment, bearing in mind the other provisions of Article 40 and the fundamental rights of the family guaranteed by Article 41, is that, paying due regard to the equal right to life of the mother, when there is a real and substantial risk attached to her survival not merely at the time of application but in contemplation at least throughout the pregnancy, then it may not be practicable to vindicate the right to life of the unborn.

O'Flaherty J analysed the term 'substantial risk' to the life of the mother:

Until legislation is enacted to provide otherwise, I believe that the law in this state is that surgical intervention which has the effect of terminating pregnancy bona fide undertaken to save the life of the mother where she is in danger of death is permissible under the Constitution and the law. The danger has to represent a substantial risk to her life though this does not necessarily have to be an imminent danger of instant death. The law does not require the doctors to wait until the mother is in peril of immediate death.

Egan J focused on the impracticality of imposing a requirement of certainty of death before an abortion could be permitted:

I would regard it as a denial of the mother's right to life if there was a requirement of certainty of death in her case before a termination of the pregnancy would be permissible. In my opinion the true test should be that a pregnancy may be terminated if its continuance as a matter of probability involves a real and substantial risk to the life of the mother. The risk must be to her life but it is irrelevant, in my view, that it should be a risk of self-destruction rather than a risk to life for any other reason.

Hederman J delivered a dissenting judgment which focused on the inadequacy of the medical evidence before the court:

The Eighth Amendment does contemplate a situation arising where the protection of the mother's right to life has to be taken into the balance between the competing rights of both lives, namely the mother's and the unborn child's. Abortion as a medical procedure is unique in that it involves three parties. It involves the person carrying out the procedure, the mother and the child. It is inevitable that if the procedure is adopted the child's life is extinguished.

Therefore before the decision is taken it is obvious that the evidence required to justify the choice being made must be of such weight and cogency as to leave open no other conclusion but that the consequences of the continuance of the pregnancy will, to an extremely high degree of probability, cost the mother her life and that any such option must be based on the most competent medical opinion available.

In the present case neither this Court nor the High Court has either heard or seen the mother of the unborn child. There has been no evidence whatsoever of an obstetrical problem, much less serious threats to the life of the mother of a medical nature. What has been offered is the evidence of a psychologist based on his own encounter with the first defendant and on what he heard about her attitude and behaviour from other persons, namely the Garda Síochána and her parents. This led him to the opinion that there is a serious threat to the life of the first defendant by an act of self-destruction by reason of the fact of being pregnant.

This is a very extreme reaction to a pregnancy, even an unwanted pregnancy. But as was pointed out in this Court in SPUC v Coogan [1989] IR 734 the fact that a pregnancy is unwanted was no justification for terminating it or attempting to terminate it. If there is a suicidal tendency then this is something which has to be guarded against.

If this young person without being pregnant had suicidal tendencies due to some other cause then nobody would doubt that the proper course would be to put her in such care and under such supervision as would counteract such tendency and do everything possible to prevent suicide.

I do not think the terms of the Eighth Amendment or indeed the terms of the Constitution before amendment would absolve the State from its obligation to vindicate, and protect, the life of a person who has expressed the intention of self-destruction.

This young girl clearly requires loving and sympathetic care and professional counselling and all the protection which the State agencies can provide or furnish. There could be no question whatsoever of permitting another life to be taken to deal with the situation even if the intent to self-destruct could be traced directly to the activities or the existence of another person.

Considering the possibility that the girl might commit suicide he suggested that this threat could be contained:

Suicide threats can be contained. The duration of the pregnancy is a matter of months and it should not be impossible to guard the girl against self-destruction and preserve the life of the unborn child at the same time. The choice is between the certain death of the unborn life and a feared substantial danger of death but no degree of certainty of the mother by way of self-destruction.

Legal response Following on the X decision three amendments were proposed to the Constitution in 1992.

The proposed twelfth amendment provided:

It shall be unlawful to terminate the life of an unborn unless such termination is necessary to save the life, as distinct from the health, of the mother where there is an illness or disorder of the mother giving rise to a real and substantial risk to her life, not being a risk of self-destruction.

The amendment was rejected. Contemporary reports suggest that the amendment was opposed by some who objected to the recognition in the Constitution of the principle of termination of the life of the unborn and was opposed by others who objected to the restrictions imposed by the proposal.

The Thirteenth Amendment of the Constitution related to travel. It stated:

This subsection shall not limit freedom to travel between the State and another state.

This amendment was approved. Accordingly, constitutional provisions relating to the unborn cannot be invoked to restrict travel.

The Fourteenth Amendment of the Constitution, related to the provision of information. It stated:

This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.

The amendment was approved.

The Regulation of Information (Services outside the State for Termination of Pregnancies) Act 1995 was enacted to implement the Fourteenth Amendment. It set out the circumstances when information about services lawfully available in another state might be made available in the state. It provides that a doctor or an appropriate agency can give information about abortion to a pregnant woman in the context of full counselling as to all available options and without any advocacy of abortion. Abortion referral is prohibited under the Act.

In A and B the Eastern Health Board, Mary Fahy, C and the Attorney General (the C Case), a thirteen year old girl, who was a member of the travelling community, became pregnant as the result of an alleged rape carried out by an adult male. The Eastern Health Board, which had taken the girl into care, applied to the District Court for orders allowing it to take the girl abroad for an abortion and to make all necessary arrangements for the abortion.

The District Court made an order directing that the child C be brought to such place as may be appropriate to terminate her pregnancy, having heard from two psychiatrists that the girl was likely to commit suicide if such a termination was not carried out.

C's parents sought to prevent any such abortion from taking place by challenging the District Court orders in the High Court by way of an action for judicial review. In the course of his judgment delivered on 28 November 1997 Geoghegan J accepted that where evidence had been given to the effect that the pregnant girl might commit suicide unless allowed to terminate her pregnancy, there was a real and substantial risk to her life and such termination was therefore a permissible medical treatment of her condition where abortion was the only means of avoiding such a risk. In its judgment the High Court followed the X decision.

Many submissions to the committee criticised the X decision.

Dr PJK Conway, a consultant obstetrician gynaecologist, commented as follows:

They bring no credit on the legal system. If the people involved in that were judged the same way as we are judged as doctors, when things go wrong and we are hauled up before the courts and so on, they would be judged as being highly negligent, highly negligent. Their judgments were totally flawed and totally wrong, based on the medical evidence that was presented. In the first case, there was no medical evidence - a psychologist was used. In the second case, one psychiatrist gave his opinion and the other psychiatrist verified that the girl was capable of giving evidence but no other psychiatrist was asked to corroborate or agree with the first psychiatrist.

Dr John Sheehan, a consultant in liaison psychiatry, said:

... I don't know the details of the case, you know, specific details - but clearly there wasn't a real and substantial risk, you know, and there wasn't a probability that the fourteen year old girl would have gone on to commit suicide, and that's borne out by both international figures and the Finnish study and the British study.

Dr Sean Ó Domhnaill, a psychiatrist representing Youth Defence, told the committee:

We would certainly feel that the girl in the X case was not best served by the court deciding that it would be of greater benefit to her to have an abortion than were she to be disallowed from having an abortion. The court, if it had sought an expert medical opinion on it, would have been told that not only, as you know, does abortion increase the likelihood of suicide, but in a subset of people it increases it even further.

The subset, to list the four, would be: previous psychiatric history, in other words, prior to the termination of the life of the unborn - that would include girls who were depressed or suicidal; younger women, which, of course, the girl in the X case was; those with poor social support; and those from cultural groups opposed to abortion. Certainly Ireland is a cultural group opposed to abortion. So they were not serving her very well.

John Wood, representing the Christian Solidarity Party, asserted the need for a referendum to restore the level of protection for the unborn:

... Article 6.1 states that the people, in final appeal, have the right to decide all mattes of national policy. It is our policy that the decision of the people in the 1983 amendment has been interpreted in the X case in a way that was not foreseen by the people in the referendum and, as a result, has reduced the level of legal protection to the unborn. It is our policy that the only way to restore that level of protection is to give the people an opportunity to have their say in another referendum.

Professor William Binchy, the Legal Adviser to the Pro-Life Campaign, said:

Our concern is that the X case misunderstood the relevant legal principles; introduced a principle which is at variance with the medical ethics guidelines of the Medical Council, at variance with the Institute of Obstetricians and Gynaecologists, at variance with the recommendation of the IMO and at variance with daily experience in Irish hospitals today. And what we are looking for, legally speaking, is legal support - no more and no less than legal support - for the existing medical practice in Irish hospitals ...

Other submissions made the case for legislation to implement the rationale of the X decision.

Dr Fergus O'Ferrall, Director of the Adelaide Hospital Society, advanced the need for legislation:

... the view of the society would be that we need legislation to take into account the circumstances of the X and C cases because broadly our position is that there should be a legal framework whereby medical indications for termination are clearly secured in a legal framework so that the health care system, and doctors and others who have to care for women, have a very clear situation, which they don't have at the moment. What we have is a constitutional position but we do not have a legal framework.

Anne Marlborough, representing Abortion Reform, supported the view that the X case should be legislated for:

I would consider it a bit dishonest and dishonourable to have a situation which is running and seems to be working perfectly but, if a problem occurs, it goes to court. We already saw that in the X and C cases. The threat to life in those cases happened to be from suicide but if there were a different type of a threat to the mother's life and there was a divergence of medical opinion, there would have to be resort to court because there are no legal guidelines for doctors.

From the transcripts, doctors did attest that in cases of uncertainty, they would proceed with the termination and then deal with the legal consequences afterwards. They should not have to find themselves in the position of wondering whether they might be breaking the law in a particular case by intervening where there is a threat to the life of the mother.

Dr TK Whitaker, Chairman of the Constitution Review Group, 1995-1996, also supported the need for legislation. In response to the assertion that irrespective of what is done, the courts have the last word on the interpretation of definition he said:

I fully accept that but, equally, I would maintain that it is up to the legislature to express very clearly and with every due regard to the possibilities of misinterpretation what it wants to be the law of the land. If the courts are in the ultimate position of deciding between disputing parties or disputing interpretations ... the first requirement is that the law be set out in its original form with the utmost clarity so as to avoid, in so far as possible, recourse to the courts.

The dangers of the 'slippery slope' and 'opening the floodgates'

Many submissions praised the specific recognition of the rights of the unborn in the Constitution. Many pointed out that Ireland's maternity service is among the best in the world and is possibly the best - World Health Organisation figures show, in regard to a major indicator of quality, that Ireland has one of the lowest rates of maternal mortality. Many submissions pointed out that obstetricians and gynaecologists in Ireland treat both the mother and the unborn with a view to bringing the mother to a safe and healthy delivery.

A huge number of the written submissions received by the committee outline religious, philosophical and human rights objections to abortion.

In a submission to the committee a citizen from Cobh, Co Cork, wrote:

... As a committed Christian, living in a so-called Christian country the only option I can support is option one. An absolute constitutional ban on abortion. Options two to seven contain various degrees of abortion.

The following written submission was received from the Presentation Convent, Listowel:

We the Presentation Sisters urgently request a referendum to ban abortion. A society with a diminished sense of the value of human life at its earliest stages has already opened the door to a culture of death. There is a dulling of conscience regarding the seriousness of the crime of abortion, a crime which cannot be morally justified by any circumstance, purpose or law.

The life of a country is much more than its material development and its power in the world. A nation needs a 'soul'. It needs wisdom and courage to overcome the moral and spiritual temptations in its march through history. It needs to build a society in which the dignity of each person is recognised and the lives of all are defended and enhanced. This is an urgent cry of the heart for a total ban on abortion now.

In its submission the Catholic Nurses' Guild of Ireland wrote:

We recommend that the people of Ireland be given the opportunity to vote on a referendum to prevent abortion being allowed in our country.

The submission of the Pro-Life Campaign presents a rationale for a prohibition on abortion on the basis of the great constitutional values of democracy, justice and equality.

The Pro-Life Campaign believes that constitutional democracy is based on the equal and inherent value of every human life and the equality of all before the law:

Abortion denies the equal and inherent dignity and worth of the unborn, treating them unequally before the law. A fully inclusive society committed to treating everyone equally before the law cannot endorse the legalisation of abortion.

It believes that only a constitutional amendment to ban abortion is compatible with an ethos of social inclusiveness and equal respect.

Many submissions drew attention to the widescale extension of abortion in many countries throughout the world. The graphic images of the slippery slope and the opening floodgates were used in many submissions to analyse this development.

Abortion in Britain The extension of abortion in Britain can be traced to an English case, R v Bourne, decided in 1939. The decision concerned a fourteen-year-old girl who became pregnant as a result of being raped. The girl's parents, fearing for her mental well-being, arranged for the defendant to carry out an abortion. After the operation the defendant informed the police as to what he had done in order to 'obtain a further definition of the present law'. As a result of his confession the defendant was charged under the Offences Against the Person Act 1861.

In his judgment Macnaghten J looked at the historical background to the Act:

The defendant is charged with an offence against s.58 of the Offences Against the Person Act, 1861. ... The protection which the common law afforded to human life extended to the unborn child in the womb of its mother. But, as in the case of homicide, so also in the case where an unborn child is killed, there may be justification for the act.

In interpreting the Act, Macnaghten J held that although abortion was generally a criminal offence, the Act allowed for the termination of pregnancy for the purpose of preserving the life of the mother. He reached this conclusion by adopting a 'reasonable' approach to the interpretation of the Act:

As I have said, I think those words ought to be construed in a reasonable sense, and, if the doctor is of the opinion, on reasonable grounds and with adequate knowledge, that the probable consequence of the continuance of the pregnancy will be to make the woman a physical or mental wreck, the jury are quite entitled to take the view that the doctor who, under those circumstances and in that honest belief, operates, is operating for the purpose of preserving the life of the mother.

On the basis of this summing up the jury returned a verdict of not guilty.

The decision in Bourne was relied on in R v Newton and Stungo. This case involved a woman who had threatened suicide. Ashworth J held that abortion is not unlawful where it is done in good faith for the purpose of preserving the life or health of the woman. He defined health as including both physical and mental well-being.

The primary legislation regulating abortion in England, Scotland and Wales is the Abortion Act 1967 as amended by the Human Fertilisation and Embryology Act 1990. The Green Paper describes the position as follows:

Abortion with the woman's consent is allowed if two doctors certify that a ground for abortion exists. Where the continuance of the pregnancy would involve a risk to the life of the woman, greater than if the pregnancy were terminated, abortion is permitted without any time limit. It is also permitted where the pregnancy has not exceeded twenty-four weeks and the continuance of the pregnancy would involve a risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing child of her family. In assessing the risk to the health of the woman and her existing children, doctors may take into account the woman's 'actual or reasonably foreseeable environment'. Furthermore, if there is a substantial risk that, if the child is born, it will suffer from such physical or mental abnormalities as to be seriously handicapped, abortion is permissible within the first twenty-four weeks.

Except in cases of emergency, an abortion must be obtained in National Health Service hospitals or in approved institutions operating as private abortion clinics.

Northern Ireland It should be noted that the British legislation does not apply to Northern Ireland. The criminal prohibition contained in section 58 of the Offences Against the Person Act still applies there. The interpretation of the 1861 Act has been considered in a number of Northern Ireland judicial decisions.

Practice in Northern Ireland differs from that in Great Britain. Dr Harith Lamki, consultant obstetrician and gynaecologist, Royal Maternity Hospital, Belfast, told the committee:

Practice in Northern Ireland is ... a good practice for women ... Termination is not carried out on social grounds. On that side, in the Royal Maternity Hospital we run a very big morning-after pill clinic, which means we have a big reduction in the number of unwanted pregnancies at present. The number of women taking the trip to England, where we used to send them for social termination, is a great deal less than what it used to be.

He said:

In the Royal Maternity Hospital now we would terminate somewhere in the region of around 30 or so women a year ... Most of the abortions in Northern Ireland are performed now because of foetal abnormalities ... If I am confronted with a woman who wants a termination because of foetal abnormalities which I disagree with, except anencephaly, because to me a Down's syndrome is not a ground for termination, but still I do refer the patient to my colleagues and if the case warrants termination it is carried out.

I think it is important to realise that the majority of the people in Northern Ireland - consultant obstetricians and gynaecologists, and there are fifty-five of us - we do not take it lightly. When a patient is referred, she is referred with very good grounds. If a GP sends a patient to us - to me or anybody else - because he or she feels that this woman is going to commit suicide, we do not just accept it. We have to talk to the patient, we have to refer to a psychiatrist or even two psychiatrists and then we take cognisance of what they say and then we decide ourselves whether there is enough grounds or not.

On Tuesday 20 June 2000 the Northern Ireland Assembly debated at length the motion proposing that this Assembly was opposed to the extension of the Abortion Act 1967 to Northern Ireland. An amendment was tabled seeking to refer the question of the extension of the Abortion Act 1967 and related issues to the Health, Social Services and Public Safety Committee and requesting that the Committee report to the Assembly on the matter within six months. The amendment seeking to establish the Committee was rejected by forty-three votes to fifteen. The motion opposing the extension of the Abortion Act 1967 to Northern Ireland was put to the Assembly and agreed to without a division.

Abortion in the United States of America In the United States the nineteen fifties marked the beginning of a period of civil rights reform and the courts became interested in the issue of abortion. In 1973, the Federal Supreme Court legalised abortion throughout the United States in the case of Roe v Wade. The court held that, in the first trimester, the woman's decision to have an abortion should be exclusively between herself and her doctor but that in the second trimester, individual states could regulate abortion in order to preserve and protect the woman's health.

In the third trimester or after foetal viability, the states could prohibit abortion except where it was necessary to preserve the life or health of the woman. The court held that a foetus was not per se a person and was therefore not entitled to protection guaranteed by the United States constitution until it reached the point of viability.

In recent years, both the US Supreme Court and the Congress have begun to allow greater restrictions on abortion. Abortion restrictions now vary from state to state. Many states have laws that prevent a minor from obtaining an abortion without parental consent or notice. States have also introduced abortion-specific 'informed' consent laws requiring the pregnant woman seeking an abortion to receive information on foetal development, pre-natal care and adoption. Some states have introduced mandatory waiting periods.

Many submissions argued that the lesson that can be drawn from the experience of abortion abroad is that a change in the law to deal on compassionate grounds with a small number of exceptional cases can be quickly exploited to allow widescale application. The committee heard from Dr Michael RN Darling, a representative of the Church of Ireland:

... looking back to the UK experience, when in 1966 David Steele introduced his Private Members' Bill, which became law in 1967. The motivation behind that appears to have been intended to prevent death and misery from back street abortions and also to enable doctors to carry out abortions in hard cases without fear of prosecution. It came at a time when thalidomide was in the news and there were a large number of concerns.

David Steele has stated that it was not the intention of the promoters of the Bill to leave a wide open door for abortion on request, but if we move on thirty years later, he is quoted as saying he did not think anyone foresaw what the numbers would be.

Ms Lelia O'Flaherty told the committee:

When the Bourne case in the UK led to the Abortion Act of 1967, it was no doubt sincerely thought that abortion would be legalised only in limited circumstances. We now know that the case on which the Bourne judgment was made was based on a false claim and that it has resulted in the killing by abortion of five million unborn children since that time. We also know that Dr Bourne was so horrified at what resulted from his no doubt well-meaning intervention that he became one of the founder members of the Society for the Protection of the Unborn Child in the UK.

Similarly, the Roe v Wade case in the US opened the way for the deaths of millions of unborn children by abortion there. And again we know now that Jane Roe has since revealed that she was used as a pawn in the push to legalise abortion in the US.

Many submissions argued that any widening of the grounds for abortion, however narrow, represents the slippery slope that leads to abortion on demand; the slightest loosening of a strict line on abortion quickly leads to a flood of abortions. On the basis that people are much the same everywhere it is reasonable to apply the two metaphors in a cautionary way to Ireland, which maintains strong legal barriers against abortion. However the metaphors tend to focus attention on a supposedly immense, unsatisfied demand for abortion in Ireland.

The ready availability of abortion facilities abroad and their use by large numbers of Irish women reduce the pressure in Ireland to provide abortion facilities. The secrecy available in British clinics will always be more attractive than the controversy and publicity that would attend any such facilities provided in Ireland.

Moreover the submissions received by the committee and the oral hearings it conducted revealed few organisations or individuals seeking extension of abortion to Ireland. Many such submissions proposed very restricted extensions.

The reality the committee encountered was that there was great concern among many about the need for a referendum to meet a legal danger and regret on all sides that constitutional and legislative changes in Ireland, however laudable, would have no impact on the reality of Irish abortion: the flood of Irish women seeking abortions in England.

'We need a referendum'

The vast majority of the submissions received by, and the petitions made to, the committee were for a referendum proposing an absolute constitutional ban on abortion.

Apart from numerous individuals, a considerable number of organisations indicated their support for this option. Among these were the Pro-Life Campaign, the Society for the Protection of Unborn Children, Youth Defence, the Public Policy Institute of Ireland, Doctors for Life, Thomas More Medical Association, Family and Life, the Vincentian Partnership for Life and the Knights of Columbanus.

The Society for the Protection of Unborn Children (SPUC) in its submission stated 'There is a democratic demand for a referendum which would give the people an opportunity to restore a total ban on direct abortion'.

Youth Defence proposed that a new Article be inserted into the Constitution:

Article 40.3.4o No law shall be enacted, nor any provision of the Constitution be interpreted to render induced abortion, or the procurement of induced abortion, lawful in the State.

The Public Policy Institute of Ireland in its submission said, '... as a minimum, the people should be given the option of voting for/against the maintenance of a principled moral position in relation to the right to life such as existed (or was thought to exist) before the X case'.

The Irish Bishops' Conference in its submission stated: 'We reaffirm our conviction that the Irish people should be offered the opportunity to restore by referendum the constitutional guarantee of the right to life of the unborn child'.

The Pro-Life submission to the committee argued the demand for a referendum to ban abortion:

The Pro-Life Campaign's submission is based on the view that all human beings possess an equal and inherent worth by virtue of their humanity, not on condition of size, level of physical, emotional or mental capacity or development, dependence, race, ethnic origin, financial status, age, sex or capacity for interpersonal relationships.

Constitutional democracy is based on the equal and inherent value of every human life and the equality of all before the law. If these values are not respected, one simply cannot have a democratic society.

The submission continues:

The Pro-Life Campaign believes that the public commitment to putting in place the supports women need will be strengthened by a referendum restoring adequate legal protection to the unborn. Polls show a consistent and substantial majority of the public support such a referendum.

Our submission responds to the Green Paper on Abortion's review of the medical issues, showing that the legalisation of induced abortion is not needed to safeguard medical treatment of women, and surveys its discussion of the legal issues, in particular answering objections to Option One, a constitutional amendment to ban induced abortion.

In its submission the Campaign considers the seven options set out in the Green Paper and declares its belief that only the first option seeks to ban induced abortion entirely and that each of the other six options would allow a different level of legal abortion.

Irish experience over the past twenty years of referendums dealing with abortion has shown how elusive the best solution is.

The Constitution Many submissions referred to Article 6 of the Constitution which declares that all powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good. The people have vested in the Houses of the Oireachtas the responsibility for deciding what needs to be done to protect and promote the common good and for ensuring that it is done. This responsibility extends to proposing amendments to the Constitution. Thus Article 46.2:

Every proposal for an amendment of this Constitution shall be initiated in Dáil Éireann as a Bill, and shall upon having been passed or deemed to have been passed by both Houses of the Oireachtas, be submitted by Referendum to the decision of the people in accordance with the law for the time being in force relating to the Referendum.

Accordingly, our Constitution does not recognise a right of popular initiative in regard to constitutional amendment. The responsibility for formulating an appropriate form of amendment is vested in the Houses of the Oireachtas.

In his analysis of Irish constitutional arrangements in 1932 Professor Kohn made the case against the popular initiative as follows:

Its crudeness in the face of highly complex problems of modern legislation, its anarchical interference with representative government, its inevitable production of incoherent legislation, its intolerance of religious and racial minorities - these and kindred defects of the system have often been stressed. Recent experience in continental countries has emphasised its most insidious feature: the irresponsibility of the anonymous legislator. Popular support may easily be mobilised by skilful agitation for a law or petition embodying a high sounding postulate, but a second referendum or initiative designed to introduce consequential legislation and possibly entailing material sacrifices, may be ignominiously defeated by the sponsors of high principle. (Kohn, L, The Constitution of the Irish Free State, Dublin 1932)

Referendum or legislation? The experience of the 1992 referendum on the substantive issue led many people to despair of our ever being able to formulate an amendment proposal which would meet the needs of the situation that has arisen as a result of the X and C cases. The Constitution Review Group (1995-96) studied the problem of how one might deal with the consequences of the X case and concluded:

While in principle the major issues discussed ... should be tackled by constitutional amendment, there is no consensus as to what that amendment should be and no certainty of success for any referendum proposal for substantive constitutional change in relation to this subsection [Article 40.3.3o].

The Review Group, therefore, favours, as the only practical possibility at present, the introduction of legislation covering such matters as definitions, protection for appropriate medical intervention, certification of 'real and substantial risk to the life of the mother' and time-limit on lawful termination of pregnancy.

Dr TK Whitaker, chairman of the Constitution Review Group, told the committee:

... in essence what the advocates of a new referendum desire is to annul the X case decision. I would prefer, if at all possible, to avoid the expenditure of public energy and resources on a referendum. The kind of legislation I would have in mind is restrictive legislation and it would, first of all, where suicide is the threat to the mother's life, require two specialists ( psychiatrists ( to certify that the suicidal disposition is genuine and poses a substantial threat to life, despite her having had expert counselling and therapy.

The second paragraph would prescribe, even where a certificate is given, that no termination be allowed after the first 14 weeks of pregnancy. The third element in the restrictive legislation would be in all cases of substantial threat to the mother's life, termination of pregnancy at any stage to be lawful only if it is unavoidably associated with medical treatment or action necessary to protect the life of the mother.

Some organisations expressed a preference for legislation over a referendum. The Church of Ireland stated that the issue of abortion:

... doesn't lend itself to the sort of clear definitions that law requires. Because of the complexity of the issue we believe that it must be addressed by legislation rather than in the Constitution. Legislation has greater potential for reflecting the complex opinions on the issue within Irish society.

The Methodist Church in Ireland agrees:

Complex social issues should not be dealt with by constitutional amendments, rather by appropriate legislation. The constitutional route is, we believe, inappropriate both because it is too blunt an instrument for such issues - giving rise to the danger of neglecting real issues through over-simplification, but also because the Constitution is inherently the wrong place for specific matters, rather being the place for laying down general principles for guiding legislation and establishing the outer boundaries of behaviour necessary to maintain the integrity of society.

The Irish Congress of Trade Unions also favours the legislative route. The ICTU in its submission:

... opposed any further amendment to Article 40.3.3o of the Constitution as any new wording introduced by any amendment would inevitably be vague and imprecise and give rise to further uncertainty.

Congress supports the enactment of legislation to give effect to the decision of the Supreme Court in the X case so as to ensure that where there is a real and substantial risk to the life of the mother, facilities to legally terminate pregnancies are available in this jurisdiction. Sections 58 & 59 of the Offences Against the Person Act 1861 should accordingly be repealed.

The Dublin Well Woman Centre in its written submission said:

The Constitution is not the appropriate means of addressing the complex social, moral, ethical, religious and health issues which lie behind Irish abortions. Legislation needs to be passed that tackles the anomaly between Article 40.3.3o of the Constitution and the Supreme Court's judgment in the X case. One way of doing this would be to legislate for the X case judgment, although this would require rigorous definition of those medical circumstances in which a woman's life is in danger. An alternative may be to legislate for the time limits at which abortions may be performed.

On the other hand concerns regarding the clarity of the legal position and the saving of the life of the mother were raised by Senator Mary Henry:

I would like to see us clarify what is legal from the point of view of the life of the mother so that if a person who really feels that they are terminating a pregnancy before the child is viable to save the life of the mother that there can be no question of a challenge, that this is lawful... My main concern is the life of the mother, that a doctor who may now feel that they can never be challenged about what they're doing because it is genuinely to save that woman's life, that they can't be put in a situation where someone says, 'Hold on a moment ( you're terminating this pregnancy, that child isn't viable, that's an abortion!' That's my really serious worry.

Preferendum

A number of organisations and groups put forward a proposal for a preferendum, that is to say, a plebiscite in which the voter can express, in due order, his or her level of preference for each of a number of proposals. These included the Irish Family Planning Association (IFPA), Lawyers for Choice, Abortion Reform and Women's Aid.

The Irish Family Planning Association in its submission to the committee said:

We strongly recommend that the electorate be given the opportunity to express their full preferences in respect of the various options as set out in the Green Paper, ranging from Option (iii) to Option (vii) (e), excluding Option (iv). This expression of views should take the form of a preferendum in which each voter would be able to express their preferences for each of the choices on a similar basis as a Presidential election or single-seat by-election ...

The evidence of Abortion Reform to the committee concurs with the IFPA:

The advantage of a preferendum-type vote would be that it would enable a better reflection of the broad spectrum of views which currently exists on the issue of abortion among the Irish people. This type of vote would be better able to engender a consensus as to some sort of compromise on an issue that has always been seen as politically divisive.

Representatives of the de Borda Institute addressed the committee on the technical issues involved in a preferendum. Philip Kearney said:

Our recommendation is that if there is a referendum on the topic of abortion it should be preceded by a non-binding multi-option vote in which all the preferences are counted. In the longer term we would, of course, seek to change the Constitution to cater for binding multi-option preference voting.

John Baker said:

What we have put forward are the main reasons a multi-option vote in advance of a referendum would be a good idea. The first is that each of the proponents of each significant position would be able to put their views before the public so no one would feel their views hadn't been given a proper hearing. Second, this would make effective participation for all concerned because it's a complex issue ( there are a number of reasonable positions and it allows each position to be heard.

Third, the final agenda for a binding referendum would be decided by all the people in a multi-option preferendum.

Peter Emerson, director of the de Borda Institute, pointed out:

As you know the Green Paper has already suggested that there are several [options] with, as we said in our paper, one or two variations on one or two of those themes anyway. At the moment it is a multi-optional debate. If you decide that the society is only to be given two options, I think you have made a decision which is in disagreement with the authors of the Green Paper and I think if you want to keep it as a multi-optional debate, then it is in your remit.

There is no provision for a preferendum in the Constitution and indeed the Constitution Review Group made no proposal to introduce one. A preferendum on abortion would therefore be a consultative plebiscite only, to be followed by yet another constitutional referendum on the most popular option. However, because of the nature of a referendum there is no guarantee whatsoever that the most popular option would be passed in a straight vote. The alternative would be to amend the Constitution to provide for a preferendum, in advance of holding a referendum on abortion. The committee rejects that option for the following reasons.

The referendum system offers the voter the right to say 'Yes' or 'No' to an option formulated by the Oireachtas. It is the task of the Oireachtas to draft the precise wording of the Bill to amend the Constitution which is put before the people and the Oireachtas may be relied upon to define the precise issue for the referendum.

At a referendum there is a majority one way or the other on the issue before the people. A preferendum might result in an option which had never obtained the support of a majority of the electorate being nonetheless adopted following the vote.

With referendums on complex issues, it is often necessary to formulate the proposal in a particular way so that the electorate can vote 'Yes' or 'No'. Preferendums introduce more complexity and the possibility of confusion.

The referendum system has worked well in practice and does not require change.

It is not clear who would formulate the range of proposals to be put to the electorate and how they would be so formulated.

Because there are three or more proposals, the terms in which each is formulated could be used to manipulate or distort the choices to be made by, for instance, splitting a proposal supported by a majority into a number of proposals and leaving a proposal supported by a minority intact and therefore predominant.