AN INTERNAL MEMO prepared by the Department of Justice in 1982 – ahead of the following year’s referendum on inserting an explicitly pro-life clause into the Constitution – warned of the possibility of the Constitution coming under the scrutiny of the European Court of Human Rights (ECHR).

The memorandum from July 1982, released under the ’30 years rule’, deals with a draft wording of the referendum that was ultimately approved by voters the following year.

The 11-page document suggested that any conflict between the Constitution and the ECHR – brought about by a constitutional change approved by the public – would probably see Ireland withdraw from the European Convention on Human Rights, the document which the ECHR exists to uphold.

The prediction – and the timing of its release – is ironic, as the Supreme Court’s interpretation of the referendum’s wording in the X Case, and the failure of successive governments to provide legislation to clarify the legal situation, led to an ECHR ruling against Ireland in 2010.

The memo, which does not carry an author’s name, remarks that Germany’s laws on abortion – which were relatively prohibitive at the time – had survived several challenges to the ECHR. However, each challenge had been defeated “without a great deal to spare”.

The documents observed, though, that a more immediate concern was Ireland’s constitutional ban on divorce, which could have been successfully struck down by the ECHR.

Pro-life amendment ‘could allow constitutional right to abortion’

The Supreme Court’s ruling in the X Case – which came 10 years after the memo was written, and nine years after the referendum was carried – is also predicted by the document, which said the proposed wording could bring about “a positive Constitutional right to have an abortion performed if certain circumstances arose”.

This was despite the existence of criminal law from 1861 (which remains in place today) which explicitly forbade any actions which intended to bring about a “miscarriage” of any pregnancy.

The document also discussed the difficulties of having the Constitution acknowledge the “right to life of the mother” – saying the word ‘life’ was open to dispute, and could be interpreted as allowing an abortion if a pregnancy merely had the effect of shortening a mother’s life, without an immediate threat of death.

This had been touched upon in previous rulings in the UK, where judges had doubted if it was possible to perfectly distinguish a risk to a mother’s life from a risk to her health.

In one such case, the memo said, the judge said forcing a rape victim to continue with a pregnancy could have left her “a physical or mental wreck”. Therefore the issue of safeguarding a mother’s life became muddied with safeguarding the length and quality of her life.

‘A life-saving abortion could still be illegal’

Outlining a set of circumstances mirroring those which emerged in the X Case, the memo discussed the legality of an abortion – given the laws from 1861 – if the procedure was necessary to save a mother’s life.

It outlined that while a hysterectomy would almost certainly not be illegal, because its intent was not to cause a miscarriage, the law was more vague in other areas and could see Irish judges borrow leads from Britain. It wrote:

The position might be otherwise if a situation were to arise in which, for instance, a mother were to be liable to die in delivery unless the child were first killed. (Whether this can actually arise in real life nowadays will be referred to later – for the moment it is only a hypothesis). In that event, the operation would be certainly be “with intent to procure a miscarriage” and would not cease to be so because the objective was to save the mother’s life even if the death of the child was greatly regretted – to argue otherwise would be to confuse intention with motive.

Whether it would be contrary to the provisions of the 1861 Act depends, therefore, entirely on whether it was done “unlawfully” – or, to put it another way, on whether or how far our Courts might follow the English decisions that the action was not done “unlawfully” if done to preserve the life or (perhaps) the health, mental or physical of the mother, at all event if the threat to health was serious.

While the referendum had been intended as a way of conclusively prohibiting abortion, the memo said the doubts over the explicit meaning of ‘life’ – and whether it could allow abortions simply to extend a mother’s life – could have the opposite effect, and “open up a very wide acceptance of abortion”.

The memo also raised questions about the use of the phrase “the unborn”, because it was impossible to immediately know whether this referred to any fertilised ovum, whether implanted or not, or to an embryo which had not developed so that individual organs were discernible.

It was also unclear whether the usage of the words “the unborn” referred to a foetus which had reached the point where it was “capable of being born” – and could be delivered with a reasonable prospect of survival.