The Attorney General's advice NOT to introduce 'pro-life' constitutional amendment

IT WAS NO secret in 1983 that the Attorney General foresaw problems with the wording for the proposed amendment to the Constitution to prohibit abortions in Ireland.

Peter Sutherland described the amendment, as written by the previous Fianna Fáil-led government, as “ambiguous and unclear”.

In his advice, given to the Taoiseach Garret Fitzgerald on 15 February and 1 March 1983, he explained that the Pro-Life lobby’s requirements could not be “complied with by any formula of words”. The answer to the dilemma, he said, was either to give the Supreme Court the power to interpret or allow the legislature to retain that power.

He also pondered the question of what “unborn” means, explaining that its definition could not be stated “with certainty”.

He gave his advice “in the light of this background” which led to the Fine Gael government seeking a change to the wording – a vote they ultimately lost in the Dáil.

The original wording -

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

- was then put to the public in a referendum in September and passed into law the following month.

Here are just some extracts from Sutherland’s 33-page document, a number of which predicted some of the issues that have pervaded Irish society over the past three decades.

The following extracts are from a memo to government on 15 February 1983

First Thoughts

In summary: the wording is ambiguous and unsatisfactory. It will lead inevitably to confusion and uncertainty, not merely amongst the medical profession, to whom it has of course particular relevance, but also amongst lawyers and more specifically the judges who will have to interpret it.

Far from providing the protection and certainty which is sought by many of those who have advocated its adoption it will have a contrary effect.

“Further having regard to the equal rights of the unborn and the mother, a doctor faced with the dilemma of saving the life of the mother, knowing that to do so will terminate the life of “the unborn” will be compelled by the wording to conclude that he can do nothing. Whatever his intention he will have to show equal regard for both lives and his predominant intent will not be a factor. In these circumstances, I cannot approve of the wording proposed.”

The ‘Unborn’

The use of the word ‘unborn’ in the proposed Amendment is significant because it has not to my knowledge been used in a similar context, that is as a noun standing on its own. The word is usually taken in association with ‘child’, ‘person’ or ‘human being’. The word, used as a noun, is not in fact defined in any of the standard English dictionaries. The reason why it is used in the proposal, without any supporting noun, deserves detailed consideration as this is the word which defines the class to be afforded protection.

Incorrect Opinion

“The meaning of ‘with due regard to’ is entirely unclear. These words are generally perceived to allow for, at least, termination of the life of the foetus in the cases of ectopic pregnancy or cancer of the uterus. The words ‘with due regard to’ have been understood by many to suggest that the right to life enjoyed by the unborn was to be confined in some way. That interpretation is in my opinion incorrect…

“…The right to life of both the unborn and the mother is stated in the proposed text to be equal and in these circumstances I cannot see how it could be possible to knowingly terminate the existence of the unborn even if such termination was the secondary effect of an operation for another purpose.”

The issue of intention does not arise in the proposed Amendment, and thus, it seems to me, that even if the termination of the pregnancy is an incidental consequence of an operation to save the life of the mother it would be prohibited.

The correct logical interpretation is that the right to life provided for the unborn is absolute. If a doctor were to be faced with the choice as to saving the life of one, and thereby terminating the life of the other, then I believe that the only lawful conclusion to this dilemma would be that he could do nothing, absolutely nothing, which infringed on either right. It is only where there is no possibility of the foetus surviving even without the doctor’s intervention that no difficulty will arise.

Confusing Doctors

“The proposed Amendment will in my view tend to confuse a doctor as to his responsibilities rather than assist him and the consequence may well be to inhibit him in making decision as to whether treatment should be given in a particular case.”

Uncertainty as to its meaning and effect could have the most serious consequences. These ambiguities and uncertainties are inherent in any statement of a general right since the scope and extent of such a right must be settled by the Supreme Court, and often this will become definitive only after perhaps a number of references to the Court.

The following extracts are from a memo to government on 1 March 1983

Balancing Powers

The proponents of the amendment originally sough to prevent the Courts from legalising abortion in any circumstances. They now seek also to prevent the Oireachtas from doing so. The two aims are incompatible, because the rights concerned by their nature cannot be absolute and may have to be balanced. To take the matter out of the hands of the Oireachtas by a positive statement of rights inevitably gives the decision on interpretation of these to the Courts and increases the risk of the type of finding which was initially used to justify seeking the amendment.” [Editor's note: the reference here is to the US Supreme Court decision in Roe -v- Wade]

“Any attempt to achieve the dual objectives apparently now sought by some, of tying the hands of both the Oireachtas and the Courts carries grave risk not merely for the health of mothers but for their unborn offspring.”

The Complexities of Language

The overall reason, which crops up in almost every facet of any attempted solution is that the subject matter of the amendment sough is of such complexity, involves so many matters of medical and scientific, moral and jurisprudential expertise as to be incapable of accurate encapsulation into a simple constitution-type provision.

“Words which one would expect in normal usage to be quite clear in their simplicity, in the context of a proposed amendment, take on complex but vital ambiguities which make their use in a constitution not only undesirable but dangerous in their uncertainty…

“A good example of this is the word ‘life’….Any positive statement of an undefined right to life will not bring finality but rather confusion.”

The 1861 Act

It would appear that few if any illegal abortions are performed in Ireland, to judge by the almost complete lack of prosecutions for the crime of abortion. Given the availability of abortion in Britain that is what one would expect. There are no judicial decisions in relation to a number of grey areas where the legality of operations which may affect the life of the unborn are concerned.

One assumes that where doubts exist about the legality of treatment the medical profession in Ireland adopt a caution approach – given that the penalty under sections 58 and 59 of the Act is penal servitude for life this is what one would expect – and the treatment involved may be easily available abroad.

“Before discussing the areas of doubt which exist in the 1861 Act, I should emphasise that the Act absolutely prohibits abortion for social convenience, or the type of abortion which is normally considered when one is talking about ‘abortion on demand’. In such cases, there is no reason to believe that the Act is in any sense ineffective or that any problems would arise in prosecuting persons who procure abortions in such circumstances.”

Again I should emphasise that where legal doubts exist, in the light of the serious penalties provided for in the Act it seems likely that where a doctor considers that an abortion is justified but that it might be illegal he would probably not operate himself. The result may be that the mother would go abroad.

“It is a novel idea to ensconce an Act in the Constitution in such a manner, and one which could have unforeseeable and perhaps undesirable consequences, and which could set an unfortunate precedent in other areas and ultimately even provide a means whereby the fundamental rights guaranteed in our Constitution could be undermined.”

The most important reason for opposing the ensconcement of the 1861 Act in our legislation is, however, its uncertainty. It is not merely undesirable, but entirely unacceptable to me that legislation whose extent and import is not entirely clear should be ensconced in the Constitution.

Alternative Words

On receipt of the advice from the Attorney General’s office, Fitzgerald moved to change the wording of the proposal to be put to the people. During committee stage, the alternative wording -

Nothing in this Constitution shall be invoked to invalidate, or to deprive of force or effect, any provision of a law on the ground that it prohibits abortion.

- was suggested. Commenting on that, Sutherland said it was marginally more favourable but he could still pick holes.

“One thing can be said however and that is that right of the unborn is not absolute under this proposal. The Court will define how the balance is to be struck between conflicting rights to life,” he concluded.

For further study, see the National Archives Ref 2013/100/557-569

1982: Government was warned of pro-life amendment’s clash with ECHR

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