The 28th Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill is one of the most extraordinary pieces of draft legislation I have ever seen and I look forward to seeing it collapse when its full significance dawns on the Irish people.
It proposes an amendment of the Constitution. According to Article 46 of the Constitution, a proposal for an amendment is initiated by a Bill in the Dβil and, having been passed by both Houses of the Oireachtas, is then submitted to the people by referendum. If it is passed by a majority, the Bill is then signed by the President and becomes law - the text of the Constitution has been amended.
Simple? Yes. Straightforward? Yes. But apparently too simple and too straightforward when we are dealing with the tricky issue of abortion. Therefore a new procedure has been invented and we are being asked to amend the Constitution in a way which is to apply to this issue only.
What the Bill in its present form envisages is that the people will be invited to change the Constitution for this one occasion only, to provide a second guess for the political parties in the event of the people, by a majority vote in the referendum, voting in favour of an express constitutional ban on abortion.
In such event, if we were foolish enough to ratify the Bill in its present form, the constitutional amendment ratified by the people in a referendum would not take effect unless within a further 180 days the Oireachtas enacted a law in the terms set out in the 2nd Schedule to the amendment Act. In other words, the political parties are being promised a six-month period after the referendum to second-guess the decision of the electorate, and, if they so decide, render the whole procedure null and void.
What a shambles! This is the most serious attack yet witnessed on the integrity of our Constitution.
We now turn to the text of the proposed constitutional change - notionally to restore to the unborn child the protection given by Article 40 before the X case. The proposed amendment would ban abortion in this State. In the case of necessary medical procedures to prevent a real and substantial risk to the life of the mother which may result in the ending of unborn human life, this is not to be regarded as abortion. So far so good.
Section 1 of the amendment, however, defines abortion as meaning the intentional destruction of unborn human life after implantation in the womb of a woman. In other words, the amendment does not extend its protection to unborn human life before implantation in the womb.
Let's have a look at what the British Medical Association has to say about sex and reproduction in their monumental Family Health Guide, published last year.
At page 762: "In humans reproduction is sexual, involving the fusion of two cells - sperm and an egg. Eggs are produced by ovaries in women, and sperm are produced by the testes in men. These cells are normally brought into contact through sexual intercourse. If a sperm succeeds in fertilising an egg, DNA (genetic material) from each parent combines to create a unique individual. Reproduction depends on an egg being fertilised and embedding in the uterus of the woman."
Although, in the view of the BMA, a unique individual has been created when fertilisation has taken place, our proposed amendment means that that unique individual is to be left at the mercy of the people concerned, and the medical profession, if they can move quickly enough to prevent implantation.
Moral or immoral? As far as I am concerned, I cannot vote in favour of a Bill which denies the protection of the Constitution to unborn human life during the period elapsing after fertilisation and before the second stage of implantation has taken place. The parents have combined "to create a unique individual".
Who has authority to terminate that life? Can it be sanctioned under a Constitution enacted in the name of the Most Holy Trinity, "from whom is all authority and to whom as our final end, all actions both of men and States must be referred . . ."?
Think again.
Roderick (Rory) O'Hanlon is a former High Court judge and former president of the Law Reform Commission