W2A-020 Abortion referendum-0.txt
THE MAASTRICHT PROTOCOL
The first question that the government chose to address was whether to amend Protocol 17 of the Maastricht Treaty on European Union. This protocol stated that "nothing in the Treaty on European Union….shall affect the application in Ireland of Article 40.3.3 of the Constitution of Ireland". The protocol was originally intended to ensure that the anti-abortion article in the Irish constitution would be copper-fastened against any rulings based on European Community law. In the light of the "X" case, both pro-choice and anti-abortion groups adopted positions on the Maastricht Protocol. The pro-choice groups argued that the protocol had to be removed as it allocated women a secondary role in Irish society – removing from them the right of appeal to Community law in relation to maters of abortion. The anti-abortion groups demanded that a referendum to overturn the Supreme Court decision be held before any referendum on the Maastricht Treaty on the grounds that the Maastricht Protocol would copper-fasten Article 40.3.3 which the Supreme Court had interpreted as permitting abortion.
The government first tried to have the protocol amended or deleted. This attempt was thwarted by other EC governments, because of fears that any reopening of the treaty could lead to demands for changes from other governments of the other EC member states a "Solemn Declaration"," which stated that the signatories to the Maastricht Treaty had never intended Protocol 17 to be used to interfere with the freedom to travel or to obtain information and that they would be favourably disposed to amending it if Article 40.3.3 itself was amended. There was widespread confusion and debate in Ireland about the legal standing and implications of the Protocol and the Solemn Declaration.

Having secured the Solemn declaration, the government announced that the Maastricht referendum would be held on 18 June. The leaders of the four main parties issued a joint statement pledging that referendums to secure the rights to travel and information would be held later in the year. The government also established a special sub-committee charged with developing a strategy on the abortion issue, to decide, in particular, whether a legislative response alone was sufficient or whether a referendum would also be required. This committee consisted of four ministers (including Des O'Malley of the Progressive Democrats) and the Attorney General. The government announced that it would respond to the Supreme Court decision later in the year following recommendations from the sub-committee.

The government's refusal to reveal whether it would introduce a referendum to overturn the Supreme Court decision or introduce legislation to implement it, and its failure to secure the amendment or deletion of Protocol 17, led both the anti-abortion and pro-choice groups to oppose the Maastricht referendum. The anti-abortion groups were supported by two prominent Fianna F&/ail senators – Des Hanafin, a founding member of the Pro-Life Campaign, and Eamon &/O Cu&/iv who challenged the government plan and sought a deferral of Maastricht until the abortion issue was resolved. While both claimed they had considerable support from senior party members, the attempt to secure a deferral failed and the internal divisions within Fianna F&/ail on the issue were effectively contained.

The government was supported by the main opposition parties in calling for a "yes" vote and tried to focus the campaign on the economic issues of the Maastricht Treaty. The Taoiseach, Albert Reynolds, spent considerable energy in attempting to separate abortion from the Maastricht Treaty – attempts which were continuously scuttled by the media and the public. Opinion polls before the referendum on the Maastricht Treaty indicated that concerns about rights to travel and information on one hand, and concern about abortion on the other, were regarded as important issues by large numbers of the electorate. Despite this, the Maastricht Treaty was comfortably passed, by 69 per cent to 31 per cent. The fact that the anti-abortion groups had conducted an intensive nationwide campaign against Maastricht (in many parts of the country they were the only groups canvassing against the Maastricht Treaty) meant that its heavy defeat was interpreted as being a significant defeat for the anti-abortion groups.

THE FORMULATION OF THE REFERENDUMS

In the aftermath of Maastricht, pro-choice and anti-abortion groups sought positive action from the government on the abortion question. But by refusing to reveal his intentions, the Taoiseach rendered all campaigning void and the debate effectively ceased during the summer months. The silence was undoubtedly designed to minimise the impact of the issue on the public domain. One Fianna F&/ail spokesperson commented that the policy was one of depriving the anti-abortion campaigners of political bones to chew on while the Oireachtas was in recess.

In September the government turned its attention to the abortion question. As the D&/ail reconvened, there was a palpable restlessness among extra-parliamentary campaigners as to when the abortion question would be confronted. The Taoiseach maintained, however, that the sub-committee had not yet made its recommendations. It was soon clear that there were divisions between the coalition parties. While both Fianna F&/ail and the Progressive Democrats supported referendums on the rights to travel and information, they differed over how to deal with the issue of abortion. The Progressive Democrats favoured legislation that would implement the Supreme Court decision in the "X" case while Fianna F&/ail favoured a referendum that would specifically rule out suicide as a basis for obtaining an abortion in Ireland. On 7 October, the details of the government's proposals were published. In spite of objections from the Progressive Democrats, the government was proposing that three referendums be held on 3 December. These referendums put forward the following additions to Article 40.3.3, which read: "The State acknowledges the right to life of the unborn and, with due respect 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."
The three proposed amendments were as follows: 1) Abortion Issue: "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 or substantive risk to her life, not being a risk of self-destruction". 2) Travel: "Subsection 3 of this section shall not limit freedom to travel between the State and another state".
3) Information: "Subsection 3 of this section 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 publication of the proposed workings was followed by negotiations between the Taoiseach and other party leaders. Opposition from the progressive Democrats and from within Fianna F&/il itself forced the Taoiseach to concede that a re-formulation of the wording would at least be considered. Interestingly, given the conceptualisation of Fianna F&/ail as representing traditional Catholic values, some of the internal opposition (from backbenchers) articulated what might be considered a feminist consciousness on the issue; that it was insulting and degrading to women to make a distinction between their "life" and their "health". It was clear, however, that Fianna F&/ail was determined to offer a referendum that would rule out suicide as a basis for obtaining an abortion. Within the D&/ail, the immediate response was somewhat muted. Fine Gael, Labour, the Democratic Left and, indeed, the Progressive Democrats all requested time to consider. There were three contentious issues; first, the distinction made between a woman's health and a woman's life; second, the question of whether, as in the "X" case, a threat of suicide ought to be viewed as an appropriate circumstance in which abortion could be provided; and, third, whether the proposed wording did in fact return the law to the pre-"X" case situation.

The reaction from the anti-abortion and pro-choice groups to the wording on the abortion issue was predictable. The pro-choice groups opposed any move to overturn the Supreme Court judgement in the "X" case that in certain circumstances a woman did have a right to an abortion. They also opposed the distinction drawn between a woman's health and life. While the pro-choice groups welcomed the proposals on travel and information, they declared that these rights were so basic that they would not actively campaign on these issues. The anti-abortion groups opposed the government's working on the abortion issue because, they argued, it did not rule out all "direct abortions"." It was clear that unless the anti-abortion groups were satisfied that a particular wording completely overturned the Supreme Court judgement, they would campaign against it. The Taoiseach issued a warning on 9 October that legislation based on the "X" case hearing would be introduced if the referendum on the abortion issue was defeated. This veiled threat was aimed at the anti-abortion forces – such legislation would clearly include a suicide threat as grounds for a legal abortion, and therefore would constitute, in their eyes, a more liberal set of abortion laws. In effect, he argued, the choice was between two necessary evils – one less evil than the other. The anti-abortion groups were opposed to the information referendum and were divided on the travel issue.

The opposition within the D&/ail was at least united in its call for a legislative response coupled with clarification of the words used in the proposed referendum bills. During the weekend following the release of the wording, the Taoiseach agreed to extend the time available for consultations with opposition leaders. The comparatively slow response from the other parties, in spite of the prolonged incubation period that preceded it, seemed to indicate some difficulty on the part of the opposition in coming to a firm position. By early the following week, however, the party machines had ground out some tangible points of opposition. Formal submissions were made separately by the leaders of Fine Gael, Labour and the Democratic Left. All sought, at minimum, the advance publication of legislation that would precisely identify circumstances in which abortions could be performed and would provide a protective framework for the medical profession. Fine Gael's submission demanded a postponement of the referendums until such a legislative framework was provided.

The Taoiseach indicated that amendments could be considered, and some kind of consensus still appeared possible. However, early exchanges in the D&/ail on 9 October indicated that if any consensus was to be arrived at, this would involve enormous compromises on all sides. During the debate, the Taoiseach criticised the opposition parties for deliberately trying to spread confusion on the issue, and the Democratic Left in particular for advocating a policy of abortion on demand. When the debate arose again in the D&/ail during the order of business on 13 October, the Fine Gael leader, John Bruton, and others expressed anger that full information had not been submitted in the briefing document supplied to the opposition by Fianna F&/ail. Bruton was particularly concerned over the contradiction between the Taoiseach's assessment and that of the Attorney General on the status of referendums. According to newspaper reports the latter had suggested that regardless of the outcome of the referendum on the abortion issue, separate legislation would be required. The Taoiseach denied this. Following repeated questioning from the opposite benches, the Taoiseach finally conceded that if the three referendum proposals were passed it would be "the end of the matter"." The parliamentary rhetoric did not indicate the easing of a path to some kind of collective agreement, and by the time the deadline for discussions had been reached a consensus approach was no longer on the cards.

This friction was exacerbated by Reynolds's categorical announcement following a cabinet meeting on 15 October that no amendments would be accepted and no changes would be made in the wording. This ensured that all of the opposition parties, as well as the Progressive Democrats, were opposed to some aspect or other of the government's proposals. However, the Progressive Democrats, fearful of causing a general election that would be dominated by the abortion issues, decided to support the government's proposals in the D&/ail. Des O'Malley indicated, however, that his party would not be actively campaigning with the government. The pragmatic resolution of the dilemma was exemplified by the contributions to the D&/ail debate from Mary Harney, the PD Minister of State. While she personally rejected the intent of the bills and criticised the government's failure to secure consensus, she would not vote against them. On 15 October, the Taoiseach committed the government to publishing the heads of a bill which would be introduced if the electorate rejected the existing wording. This bill would, as the Taoiseach had threatened earlier, include the provision of suicide as grounds for termination of pregnancy. Strategically, this was a wise move on the part of Fianna F&/ail – already becoming isolated as all forces come into the hands of the electorate and could split the fragile coalition of anti-abortion forces, who felt caught between a rock and a hard place.
