Sir, - Donnacha O'Connell (September 20th) makes a number of unsustainable assertions about the background to the 8th Amendment to the Constitution. It is not the case, as he asserts, that there was sufficient evidence that the right to life was adequately protected by the Constitution. Mr O'Connell refers to judicial pronouncements on the issue. The cases, which he presumably has in mind, but does not mention, did not deal with abortion.
The first of these is the McGee contraception case in which the late Brian Walsh referred, obiter dicta, to the right to life. Obiter dicta are not binding on any court, even if they may be persuasive, The second case is the Norris case (May 1983) which dealt with legislation on homosexual relations. In this case, the late McCarthy J. mentioned the current debate on the abortion issue, and was of the view that the Constitution protected unborn life. The issue was not before the court, and his aside could not be considered an authoritative pronouncement.
Of far greater relevance is the fact that our Supreme Court followed the US Supreme Court's 1965 decision in Griswold v. Connecticut on contraception in McGee. The Griswold decision was crucial to Roe v. Wade, in which the American Supreme Court decided that the unborn child was not a person for the purposes of Constitutional law. Since then, about 1.4 million abortions have been carried out every year in the US. Interestingly, in the 1983 debate, our leading constitutional scholar, the late John Kelly, said that while the then judiciary might not permit abortion, he would not predict what a future court might do.
In the early 1980s, a lobby had started to campaign for abortion in Ireland; the lobby was a small one but was generally uncritically received in the media. This was undoubtedly having an influence on some politicians in the Oireachtas, as the 1983 debate showed. The make-up and outlook of the Dail can change very quickly; it was prudent of the Pro-Life Amendment Campaign to campaign for explicit constitutional protection, as nobody knew what the future held.
The specific wording of the 8th Amendment was presented by the then Government, and not the Pro-Life Campaign. In the "X" case, one of the judges Mr O'Connell implicitly relies on, the late Niall McCarthy, was prepared to permit widespread abortion without relying on any evidence from a medical doctor. The learned judges heard no submissions from specialists in the field of ethics. Counsel for the Attorney General made an inexplicable submission that the 8th amendment actually permitted abortion. This certainly came as a surprise to those who voted for it.
Perhaps Mr O'Connell was out of the country in 1992. Can he recall the Youth Defence gatherings, where thousands of all ages took to the street to protest the injustice of the "X" case decision? Finally, it is a pity that he adopts the standard diversionary position, claiming that laws do not prevent abortions or crisis pregnancies. Outlawing tax fraud, environmental pollution, sex discrimination and child abuse will not end these injustices. However as Martin Luther King recognised, laws are not intended to change hearts, but they do restrain the heartless. What could be more heartless than killing an unborn baby? - Yours, etc.,
Kevin Ryan, Patrick Street, Dublin 8.