Sir, Eamon O'Dwyer refers (May 29th) to the right of the sovereign people under Article 6 of the Constitution to decide by way of referendum to prohibit abortion in the sense of the intentional killing of unborn children. Was this right not exercised by the people in 1983 and again in 1992 in relation to the right to abortion information, the right to travel for an abortion and the so called "substantive issue"?
If the Supreme Court, in the X case, was of the view that the 1983 amendment permitted an abortion where there was a real and substantial risk to the life of an expectant mother (including the risk of self destruction), was it not simply exercising the function of constitutional interpretation given it by the sovereign people in 1937?
Just because some people disagree with the judicial interpretation given to a particular provision of the Constitution in a particular case does not mean that our rights as the sovereign people are being denied by any government. If a sufficient number of people wish to reject or refine a judicial pronouncement on a provision of the Constitution they may do so by referendum. This opportunity was afforded to the people in 1992 in the aftermath of the X case and, for various and opposing reasons, the people rejected the so called "substantive issue" amendment by a significant majority. If the prolife lobby were unable to predict that the Supreme Court would reach the kind of decision it reached in X, how can they guarantee that any other formula of words they might propose would not be interpreted "perversely" by a future Supreme Court?
How many times must the sovereign people exercise their rights by way of referendum on this issue? Do we have to keep amending the Constitution in response to the spin put on opinion polls by the prolife lobby? Will we then have to yield to the demands of the prochoice lobby which will inevitably campaign against an absolutist antiabortion amendment on the basis of real or hypothetical hard cases?
The judges in the X case were far from enthusiastic in discharging their constitutional function of interpretation in the absence of legislation which might have clarified the exact meaning of the 1983 amendment. The late Justice Niall McCarthy excoriated the Oireachtas (the representatives of the people) for providing no assistance in this matter.
If there is to be yet another constitutional amendment on this issue, and I am unconvinced as to the necessity for one, then it is absolutely essential that it be accompanied by draft clarificatory legislation published prior to the referendum. But we the people the ultimate sovereign power under the Constitution, should pause and consider the purpose of our Constitution in the year of its 69th anniversary. Is it to be a detailed criminal code on the minutiae of controversial social issues? Is it to be piously aspirational in the face of unacceptable social realities? Is it to be the battleground for a moral civil war between fractious interest groups vying for the greater share of generally indifferent popular support? Or is it to be a bridge to the next century which reconciles rather than divides the diverse strands of pluralist Irish society?
No number of constitutional amendments or legislation will prevent Irish women terminating their pregnancies. If the primary aim of the prolife lobby is to de feat this "evil" in a real and substantial way, its tactic of focusing on constitutional reform is, at best. misguided. - Yours. etc..
Henry Street,
Galway.