An Irish protester over Savita Halappanavar's death, caused by being denied an
abortion, holds a sign that reads "SHAME"
In Ireland, there is simply no issue that so inflames passions and ignites heated argument as abortion.  Probably in response to the 1973 Roe v. Wade decision which made abortion readily available in the US, the Irish people voted in 1983 to amend the constitution to include the following language: “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 respect and, as far as practicable, by its laws to defend and vindicate that right.”

Nearly ten years later, however, the Irish Supreme Court held in the X case that abortions could be lawfully carried out if there was “a real and substantial risk” to a mother’s life, including the risk that she might commit suicide in the event of having to continue an unwanted pregnancy to full term.  That case, which arose as a result of the rape of a 14 year old girl, who was impregnated, remains good law in Ireland, despite later attempts to amend the constitution to omit the risk of suicide as a ground for a legal abortion.  There has been no legislative action since on the issue.

In 2010, the European Court of Human Rights ruled that Ireland was in breach of Article 8 of the European Convention on Human Rights by virtue of its failure to legislate for the X case.  And the tragic death late last year of a pregnant Indian woman, Savita Halappanavar, in University Hospital Galway – just across the street from my office in the law school at the National University of Ireland, Galway and just before my wife gave birth to a healthy baby – has catapulted abortion in Ireland to the fore again.

Halappanavar was miscarrying and in serious difficulty, but was denied an abortion and told that Ireland was “a Catholic country.” An inquest has ruled that Halappanavar’s death was the result of a “medical misadventure.”  And it is at least possible that uncertainty about when abortions may be carried out contributed to her death.

On foot of this tragedy, and doubtless under pressure from its partner in government, the Labour Party, Taoiseach Enda Kenny affirmed that his Fine Gael-led government would legislate for the X case – i.e., explicitly allow for abortion where there is a threat to a mother’s life, including where the threat is posed by suicidal ideation – expeditiously.  This commitment has engendered an often frenzied debate dominated by those with very strong, “black and white” opinions on both sides.  Those in the middle, for whom abortion is more of a “grey” issue and whom I believe to be the majority in Ireland, have been absent for the most part.  In this pitched battle, neither side has covered itself in glory.

On the pro-life (though pro-choice advocates here take umbrage at that label, which is almost universally accepted in the US) side, we have witnessed the ridiculous spectacle of doctors and experts being lectured by people who are strongly anti-abortion, but who have no more relevant qualifications to do so than I.  Furthermore, some individuals and groups insist, as if they know it to be true beyond a reasonable doubt, that there is never a circumstance in which a woman needs an abortion to save her life.

Pro-lifers have also implied that large numbers of women will lie and say that they are suicidal to obtain abortions.  Then, the argument goes, the floodgates will open as they did in the United Kingdom when abortion was legalized for women whose pregnancies threaten their mental health.  This is an inapposite analogy and profoundly insulting to the women of Ireland.  Moreover, their arguments against a liberalized abortion regime are undercut, some might say fatally, by the reality that Irish women travel to the UK every day for abortions.

Some on the pro-choice side have been equally disingenuous.  While a small number are open and frank with their view that abortion should be as available to Irish women as it is to American women, most publicly say no more than that they believe that legislation for the X case is long overdue.  That their unstated goal is a giant leap further, however, was revealed by the Sunday Independent newspaper.

A pro-life activist, posing as a pro-choicer, recorded two Labour Party TDs (members of Irish parliament) stating that X case legislation was only “a starting point” for making abortion more freely available.  One Dublin-based TD openly acknowledged in private that this was the intention, but stated that he would deny it if asked on radio.  The same TD made ill-informed, negative comments about people living in rural Ireland.  Although legitimate questions can be asked about the ethics and modus operandi of the woman who went undercover, similarly legitimate questions can be asked about the ethics and modus operandi of the two TDs.

Now, the government has introduced the Protection of Life during Pregnancy Bill 2013 in draft form.  The draft Bill provides, among other things, for panels of doctors who will ascertain whether a pregnant woman seeking an abortion truly is suicidal and gives the woman a right to appeal an adverse decision.  It appears quite stringent.  Just like any piece of legislation, it does not address every eventuality.  On the pro-choice side, there’s disappointment that the draft Bill doesn’t go further and, in particular, allow for abortion for pregnant women with fatal fetal abnormalities.  Some of these women have borne witness to their horrific experiences.  On the pro-life side, there is sadness and anger that legislation will permit any abortion.

In sum, the hallmarks of this debate have been dishonesty and hysteria.  Civility and clarity have been sorely lacking.  When it comes to abortion, it seems impossible to foster a rational, respectful and thoughtful discourse.  Yet I believe there is a “silent majority” in this country on the issue that rejects the absolutism in both camps.  It’s a pity that we haven’t heard more from them. 

The draft Bill, in my view, roughly occupies the middle ground in Ireland’s abortion debate – though I think a healthy majority would also favor the legalization of abortion for pregnant women with fatal fetal abnormalities.  Already, the Taoiseach has announced that he is going to use the bluntest of blunt instruments, the anti-democratic and unforgiving party whip, to vitiate opposition within his own party and ram the Bill through.  It will still take time, and there’s much more of the aforementioned to come.  

Is it any wonder then that even I, the consummate political junkie, am trying desperately, albeit completely unsuccessfully, to tune out?