From March 1992, a piece written by Adrian Hardiman SC (Supreme Court Judge since 2000) in the Sunday Independent on the X case and Pro Life Campaign legal advisor William Binchy.
Anti-abortion extremists are demanding a further referendum to turn the clock back in a drastic way. Their position is both obscurantist and less than honest.
The first thing to be said about this group is that their legal thinking is demonstrably unreliable. They were warned in 1983 that the wording of the amendment was, in the words of the then Attorney General, “ambiguous and unsatisfactory”. They insisted that it was perfect. They now wish to change it again.
They were expressly warned, by this writer amongst others, that the amendment could be used to prevent women from travelling. They scoffed at the idea or pretended to do so, and called it scaremongering. This is precisely what happened and (without the amended protocol) what could happen again.
In recent weeks this group has loudly proclaimed that it does not wish to interfere with the right to travel. If this is true, it is a death-bed conversion. It was not apparently their view a few months ago when the original protocol was negotiated.
Worse still there is ample evidence that this group positively envisaged the use of penal sanctions, including imprisonment, against Irish women who had abortions abroad. In 1981 Professor-elect William Binchy wrote the first article I am aware of suggesting a referendum on abortion. If passed, he foresaw that injunctions could be granted to restrain a pregnant woman from travelling abroad for an abortion.
He continued “. . . if the consequences of defying an injunction were made absolutely clear to the defendant, this might (have some effect. These consequences are indeed awesome. The defendant would be in contempt of court — for which commital to prison is the penalty: moreover an action for damages would also lie for ‘destruction of the child’s constitutional right to life: One must be realistic here. A woman threatened with such sanctions (could well decide to stay in England after her abortion rather than come back to prison in Ireland’ (emphasis added). (Binchy: Ethical issues in Reproductive Medicine: A legal perspective”) published by Gill and Macmillan 1982.
In the same article the Professor-elect declared that-the “simple legal solution” might be to make it a criminal offence to have an abortion anywhere in the world.
He said “for our legislation now to provide that it should be illegal to have an abortion abroad would therefore not be changing what since 1861 has been the intended effect of our abortion law: on the contrary it would do no more than restore the position in light of legislative developments elsewhere over which we have no control”.
He continued by asking whom precisely the law would cover. Answering his own question he said, “Obviously it should not extend, for, example, to an English woman residing in England who had a perfectly legal abortion there. If she came to Ireland for a visit some time later, she should scarcely be hauled off to Mountjoy for what she had done.
“It would seem that the law should be limited to persons with a close connection with Ireland at the time of the commission of the offence. Such persons could include those who are habitually resident here or, more restrictively. Irish nationals who are habitually resident here.”
Previously: And So It Came To Pass
Eamonn Farrell/Photocall Ireland