This Green Paper was a long time coming and it shows the signs of very careful consideration of the many problems associated with this subject. It does not flinch from naming them.
In particular, those seeking an "absolute constitutional ban on abortion" will find little comfort in it. Although the Taoiseach has promised a referendum on the issue, the authors of the Green Paper spell out the difficulties of this course in no uncertain terms. Some sort of legislation, possibly in combination with a constitutional amendment, seems to find more favour with them.
While an "absolute constitutional ban on abortion" is only one of the seven possible options put forward in chapter seven of the Green Paper, it is the one sought by antiabortion campaigners. When asked how this could be implemented while guaranteeing the right to life of the mother, they have cited existing medical practice and the guidelines of the Medical Council.
The authors of the Government discussion document are frank on the difficulties such an absolute ban would pose. In particular, they make it clear that the Medical Council guidelines are not a sufficient basis for a legal framework for abortion legislation.
They acknowledge that those seeking a constitutional ban want current medical practice to continue. This allows the treatment of certain rare conditions where the mother's life is threatened by the continuation of the pregnancy, and where treatment involves the termination of the pregnancy.
Such an eventuality is provided for in the current Guidelines of the Medical Council, adopted in 1998. These state that "the deliberate and intentional destruction of the unborn child is professional misconduct," but adds: "Should a child in utero suffer or lose its life as a side effect of standard medical treatment of the mother, then this is not unethical."
The principle of "double effect", where one course of action may have an unintended and unwanted side effect, has had a deep influence on Catholic moral teaching, especially in the area of medical ethics. However, it is not a universally accepted concept. Furthermore, it is, as the Green Paper points out, very difficult to legislate for.
"Any wording designed to achieve a complete constitutional ban would . . . bring the medical treatment of expectant mothers into sharp focus," the authors write. Specifying the circumstances where the destruction of the foetus might arise in treatment, it comments: "It is difficult to see how the destruction of the embryo can be described as an unintended side-effect."
There is another problem with the Medical Council guidelines, according to the Green Paper. That is the reference to the state of mind of the doctor at the time of the procedure (in the words "deliberate or intentional"). If these words were inserted into a Constitutional amendment, it could put current medical practice at risk, it says.
The Green Paper makes it clear, therefore, that the Government does not accept either that the distinction between "direct" and "indirect" abortion can be inserted into the Constitution, or that a "direct" abortion is never necessary to save the life of a mother.
It also makes it clear that it does not consider the current guidelines of the Medical Council, themselves the result of the influence of the anti-abortion lobby in the council, to be set in stone. "It is possible that the ethical guidelines currently in force may be changed in the future, for example, to reflect a different, more liberal, ethical approach or to take account of developments in medical practice." These could run into constitutional difficulties if there were an absolute constitutional ban on abortion.
Taking all these things into account, the Green Paper states that "the difficulty of arriving at an acceptable wording to provide for a constitutional prohibition on abortion should not be underestimated".
It also raises another problem raised by a new constitutional amendment. While the definition of "the unborn" did not feature in the debate surrounding the proposed amendment in 1992, and has not been raised by the courts or medical profession since, it might arise in a new debate. It has been raised in very critical terms by the Review Group on the Constitution, to which the Green Paper refers.
Such a definition poses a whole new set of problems. If the "unborn" is defined from the point of conception, this raises problems for medication such as the "morning after" pill, contraception like the intra-uterine device, and for infertility treatment like in vitro fertilisation (IVF). An alternative definition, from the point of implantation, could be imprecise and any attempt to be specific (like 10 days after conception) would arouse significant opposition.
The document also examines the option of an amendment which would rule out the risk of suicide as a basis for seeking a legal abortion in Ireland. But it points that such an amendment was attempted, unsuccessfully, in 1992. That problem might be met by legislating to exclude suicide, and putting forward a constitutional amendment in conjunction with the legislation.
They acknowledge that leaving the status quo in place is unsatisfactory. However, the status quo could be maintained along with legislation to address the uncertainties in the present situation. While prohibiting abortion, such legislation could allow it to be a defence that the doctor who carried out the procedure thought there was a real and substantial risk to the life of the mother. The suicide risk could be dealt with here, too, either by ruling it out, or by legislating in line with the X case judgment.
Addressing those who have argued for the simple removal of Article 40.3.3 from the Constitution, the Green Paper points out that this would not negate subsequent Supreme Court judgments.
It also considers the possibility of permitting abortion on grounds broader than those in the X case, but stresses the difficulty of defining and limiting these.