Synchronicity

I’m reliably informed (by Stephen Fry and the QI elves) that there never was a time when everybody thought the earth was flat; that is apparently a fallacy. Nevertheless, there had to have been a time when everybody assumed the earth was flat because that was their entire experience of it. They had no reason to question its flatness. Only when some people started to suspect that the earth wasn’t flat, and started to talk out loud about it, did flatness or otherwise become an issue up for discussion. Then it was possible to begin the collective thought processes that would lead to the knowledge that the earth was, in fact, an oblate spheroid. That was an epistemological shift; what ‘everybody knew’ had changed and our view of the world, literally and metaphorically, would never be the same.

Skip forward a few millennia to the nineteenth century and we have a pair of parallel historical lines that would eventually bring Ireland two of the most consequential cultural developments in the history of the State. Those lines took us from a draconian British law that criminalised homosexuality and abortion in all cases, to what The New York Times called the vanguard of social change. Marriage equality and a woman’s right to life in pregnancy were made law by popular vote and against the wishes of successive Governments. That was also part of an epistemological shift that changed our view of the world.

The legislation governing both homosexuality and abortion dates from the British Offences Against the Person Acts 1861 and 1868 that criminalised ‘the abominable crime of ‘buggery’ and any attempt by a woman ‘to procure her own miscarriage [or] the miscarriage of any woman’. Both were punishable by criminal servitude for life.

And as recently as 1983, our Supreme Court ruled that those laws supported the ‘Christian and democratic nature of the Irish State’. In that year, a two-to-one majority of the electorate voted for the Eighth Amendment banning abortion ‘forever’ and continuing its criminalisation. Each had rock-solid support from voters.

Nevertheless, within a generation, we had sanctioned same-sex marriage, repealed the Eighth Amendment, and legalised abortion on demand in the first trimester. That was also an epistemological shift that changed our view of the world.

What happened? Who started talking out loud about what, and how did that talking change attitudes stubbornly in place for 122 years at least? In the case of decriminalising homosexuality, the answer to that question is David Norris. And when it comes to the question of abortion, the answer, surprisingly, is the Pro-Life Amendment Campaign.

To be consistent

The Constitution itself is silent on the subject of homosexuality. Nevertheless, ‘under Article 50 of the Constitution, laws inconsistent with the Constitution [are] no longer in force’ (Irish Legal Heritage). In 1977, David Norris therefore challenged the constitutionality of the Offences Against the Person Acts, arguing that, being inconsistent with the Constitution, it had not been in force since 1937. In 1980, the High Court rejected his case ‘on the basis of the Christian and democratic nature of the Irish Constitution.’ He appealed to the Supreme Court.

In 1983 the Supreme Court upheld the lower court’s decision. The judgment in that case, delivered by former Chief Justice O’Higgins, was unambiguously homophobic.

From the earliest days, organised religion regarded homosexual conduct . . . with a deep revulsion as being contrary to the order of nature, a perversion of the biological functions of the sexual organs and an affront both to society and to God. . . .
On the ground of the Christian nature of our State and on the grounds that the deliberate practice of homosexuality is morally wrong, that it is damaging to the health both of individuals and the public and, finally, that it is potentially harmful to the institution of marriage, I can find no inconsistency with the Constitution in the laws which make such conduct criminal.

Norris appealed that decision to the European Court of Human Rights, where Norris v. Ireland was decided in his favour in 1988 on the grounds that Ireland’s criminalising of sexual acts between consenting adult men was in breach of Article 8 of the European Convention on Human Rights.

Faced with the intransigent intolerance reflected in the Court system, in Justice O’Higgins’ language, and in much of the public discourse, as a nation we were confronted with our collusion in what would today be labelled hate speech. We had seen one of the consequences of that hate a year earlier when Declan Flynn, a 31-year-old gay man, had been beaten to death in a ‘gay bashing’ attack in Fairview Park. In the seventies and into the eighties, ‘gay bashing’ was an actual thing. Five men were charged with the murder, but all five walked free. The justifiably loud and widespread public protest helped Norris to open up the discussion that would arguably have been impossible without that tragedy and would definitely not have been possible without Senator Norris. Within ten years, homosexuality was decriminalised.

The extra-constitutionality of the legislation made decriminalising possible without a referendum and the offending laws were repealed in 1993 by the Criminal Law (Sexual Offences) Act. Appropriately, the Bill was signed into law by President Mary Robinson, one of Senator Norris’ Senior Counsels in his battle with conservative Ireland.

And a mere twenty-two years later, in 2015, Ireland was the first country to introduce marriage equality by a popular vote. In 32 years, we had moved from the rear-guard to the vanguard. That is pretty much the definition of an epistemological shift in our cultural understanding.

What happens when you give a woman equal rights to a foetus?

In more or less the same timeframe, the Eighth Amendment to the Constitution attempting to ban abortion for all time was passed and subsequently repealed. In the original 1983 referendum, the Amendment was approved with slightly more than two-thirds of the vote (66.9% to 33.1%). It was repealed in 2018 with an almost exact reversal of the first vote (66.4% to 33.6%). It was not a smooth ride.

In its acknowledgement of the right to life of the ‘unborn . . . with due regard to the equal right to life of the mother’, the Amendment necessarily—though, it seems, either unwittingly or unwillingly—gave the pregnant woman the same right to life as the foetus. That being so, in 1992, the Supreme Court ruled that abortion was constitutionally permitted in the case of a threat to the life of the pregnant woman, including the risk of suicide.

Consequently, and ironically, the Eighth Amendment actually made access to abortion a constitutional right, albeit within narrow limits. Alan Shatter had said as much during the Dáil debate before the referendum:

I have no doubt . . . that if in its present form it becomes part of our Constitution it will essentially secure a constitutional judgment in the not too distant future requiring the House to enact legislation to permit women to have abortions.

He was right—though he wasn’t happy about it. The Government ignored him and subsequently ignored the Supreme Court ruling that proved him right. And for almost three decades, Governments under both Fine Gael and Fianna Faíl stood absolutely and resolutely firm in their collective refusal to legislate for the 1992 ruling.

But sometimes, history is what has happened while governments were making other plans. In 2018, when the Eighth was repealed by referendum, a Fine Gael Government was required to enact legislation to permit women to have abortions, just as Allan Shatter had said it would.

Who spoke out loud?

In 1983, when Justice O’Higgins could see nothing repugnant in a law that imposed life sentences on gay men and pregnant women in crisis, the Pro-Life Amendment Campaign was already two years into their fight for what would become the Eighth Amendment.

PLAC was founded in 1981 by the coming together of 13 organisations with a single ambition. It was formed specifically in response to Roe v. Wade, the US Supreme Court ruling that protected a woman’s right to choose an abortion. That ruling followed only five years after the UK’s 1968 Abortion Act, which legalised abortion within certain limits. Sensing which way the wind was blowing, PLAC set about campaigning for a Constitutional ban on all abortions for all time.

Within two years of its formation, it had achieved its ambitious goal by means of a campaign that was fractious, to say the least. To say the most, it was mean and spiteful. And when it was over, the Eighth Amendment was included in the Constitution.

But Oscar Wilde, who was imprisoned under the Offences Against the Person Acts, warned us to be careful in what we wish for. That referendum achieved something pro-choice activists couldn’t even have attempted: it opened the discussion. Between 1983 and 2018, a previously black-and-white issue became increasingly nuanced. Fatal foetal abnormality, pregnancies due to rape or incest, children having babies for their rapist, all smudged those crisp borderlines between pro-choice and no-choice. There were five more referenda after 1983 to do with abortion rights; none was decided in favour of further limiting the right to choose. And in the last referendum, voters elected to repeal the Eighth in an almost exact reversal of the first vote.

By then, the final and inarguable ‘nuance’ had been forced upon our attention by the tragic and completely avoidable death of Savita Halappanava.

Real, substantial, and immediate

PLAC’s intransigent absolutism was given its fullest due in the medical treatment given to Ms Halappanavar. The investigation by the Health Service Executive (HSE) into her death confirmed that

Foetal demise is certain in an inevitable miscarriage at 17 weeks where there is . . . infection in the uterus. The risks to the mother can be reduced by expediting delivery. Continuation of the pregnancy is putting the mother at increasing risk with no potential benefit to mother or foetus.

Nevertheless, for the team treating Ms Halappanavar—admitted with an inevitable miscarriage at 17-weeks—it wasn’t enough to know that foetal death would result no matter what they did; that’s what inevitable means. It wasn’t enough to know that an infection in the uterus will cause septicaemia and that untreated septicaemia will kill the patient. It didn’t matter that ‘expedited delivery’ was the standard treatment for such cases precisely because of the increasing threat to the life of the pregnant woman. None of that mattered. Someone had decided it was necessary to delay acting until there was no detectable foetal heartbeat. Without any benefit to the foetus.  

Alternatively, they would wait, with no medical justification, until Ms Halappanavar’s life was not just threatened but immediately threatened and then step heroically in and reverse the threat. Hubris—excessive pride and dangerous overconfidence—killed Savita Halappanavar who also had had a heartbeat. And septicaemia.

It’s hard to imagine a medical, ethical, or legal justification for the decision to wait before acting to save her life, even after sepsis had been detected. The Supreme Court ruled that the Eighth Amendment gave Ms Halappanavar her equal right to life; by including the threat of suicide as grounds for an abortion, they specifically did not find anything in the Amendment that limited that right to the point of death. HSE standard practice was to ‘expedite delivery’ without waiting, which would terminate a pregnancy already terminating itself and save the life of the pregnant woman.

Nevertheless, they waited; they gambled on their own near-mystical powers, and that gamble cost Savita Halappanavar her life.

The response of one more Government was to ignore the Constitution, the Supreme Court, the will of a majority of the people, HSE standard procedure, and now, the lesson of Savita Halappanavar’s pointless death. They produced the Protection of Life During Pregnancy Act 2013, under which a legal abortion could be performed if and only if there was a ‘real and substantial’ risk to the life of the pregnant woman, and if ‘the medical procedure is . . . immediately necessary in order to save the life of the woman’ (§7 1.i and ii and §8 1a and b). In other words, enshrined within that legislation is the same distinction between a threat to life and an immediate threat to life that caused Ms Halappanavar’s death, the same lack of consideration for the woman’s right to life in pregnancy, and the same demonstrable defiance of the Supreme Court’s ruling.

An ideological intransigence that allowed political considerations to override standard medical procedure, to deny a Supreme Court ruling, and to sideline the Constitution—combined with a dollop of hubris—was responsible for Ms Halappanavar’s death. It may also have killed the Eighth.

Had the pro-Eighth activists campaigned to keep the Eighth as interpreted by the Supreme Court, with the life of the pregnant woman protected if and only if her life was threatened, the result could have been very different. The hill on which they chose to make their last stand was a denial of the right to life of a pregnant woman in a crisis pregnancy.

Had Ms Halappanavar’s medical team followed HSE guidelines, she would, in all statistical likelihood, have survived. She could have been the poster pinup for the Eighth Amendment, under which she was entitled to and would have received appropriate medical treatment when her life was threatened. Those who were opposed to abortion under any other circumstances could have voted to keep the Eighth with a clear conscience. Instead, the delay in offering necessary treatment, resulting in Ms Halappanavar’s death with no benefit at all to the foetus pushed a lot of legitimately pro-life voters to vote for repeal.

Hard cases make bad law, but this was a perfectly straightforward case: in accordance with constitutional law, standard practice in the HSE would have ‘expedited delivery’. To do otherwise is to make pregnancy, with the risk of miscarriage, a potentially life-threatening condition. Orla O’Connor, co-director of Together for Yes, spoke about the widespread shock that followed Savita’s death arguing that it shifted the whole conversation about abortion. This wasn’t a doctrinal, or a legal, or a theoretical issue anymore. ‘People were shocked, they felt it could have happened to them’.

Despite more than three decades of one Government after another standing, Canute-like, and ordering the tide to turn, history happened anyway. The Eighth was repealed and gays got married. Welcome to the twenty-first century.

Children of the revolution

The shared timeline of these two consequential developments mapped the cultural trajectory that gave birth to the current demands for change. But again, why? What happened after 1983 so that voting patterns changed, attitudes changed, and priorities changed?

Those who voted for the first time after 1983 don’t remember the hungry fifties; in their experience, Ireland has always been among the world’s rich countries. The phrase ‘civil-war politics’ has no relevance for them outside of the history books. They came of age politically in time to watch the Catholic church lose its moral power to Anglo Irish Bank—and they saw where that landed us. They lived through the busted boom, the unequally applied austerity that followed it, and the unhesitating return to the behaviour that had caused it. They watched as the rich got richer again and the poor paid the price again in cuts to health, social services, and housing budgets.

Raw capitalism, the Church, and Irish politics-as-usual were all losing authority as this generation started to vote. Their demands are real and urgent and much broader than sexual politics. For them, the homelessness crisis isn’t an unfortunate chronic recurring condition that has been part of the Irish state since its inception. It’s a here-and-now problem with a simple solution: build more houses at a price for rent or sale affordable to the two out of three of us who can’t afford to buy an average house, even outside of Dublin, the big money pit.

For them, the screaming inequities of our two-tier health system aren’t a feature of the Irish landscape as familiar as the weather—but sure, what can you do about it? They’re a disgrace to the nation. And again, the solution is clear to those with less jaundiced eyes. Even the US majority now support ‘Medicare for all’, but Sláintecare is still gathering proverbial dust on a shelf somewhere inside a Government vault.

People who became eligible to vote after 1983 are literally the children of the last major cultural revolution. They were born in the mid-sixties and raised by the post-hippy bourgeoisie—baby boomers who sang about going to San Francisco with flowers in their hair but who ultimately settled into lives very much like their parents’. Nevertheless, not all the toothpaste went back into the tube; a contrarian attitude survived and is manifest in their cultural heirs. Faced with unbending, small-minded, and mean-spirited subjugation of women, the poor, immigrants, and gays commingled with a laissez-faire attitude to climate change; those heirs have been calling BS on entrenched political reality since they were old enough to vote. And their voice is getting louder as their numbers, inevitably, increase.


[1] Epistemology: relating to the theory of knowledge, especially with regard to its methods, validity, and scope, and the distinction between justified belief and opinion.