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Irish Stew

Where abortion and national identity collide

Apr 1, 2013, Vol. 18, No. 28 • By CHRISTOPHER CALDWELL
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The scandals were enough to make any citizen’s blood boil. They turned the independent-minded burghers of Irish country towns, previously a bulwark of the church against Dublin 4, into a bulwark of Dublin 4 against the church. “My brother thinks of the Catholic church as a criminal conspiracy,” a levelheaded Dublin businessman friend told me a month ago. 

So at Maynooth, where Ireland’s leading Catholic seminary used to graduate hundreds and hundreds of priests a year—and then send them to missions around the world, because they were far too many for the churches of Ireland itself to accommodate—the class photo of 2007 shows only four new fathers. Three sides of the seminary’s vast quadrangle, which was still overflowing with religious offices and classrooms when I visited in the 1990s, are now given over to other things—one side allotted to Trócaire, the Catholic charity; two sides rented out to the (secular) Irish National University. And a half-dozen other seminaries around the country have been shuttered. 

Until recently, almost no one perceived this as a loss. When church attendance collapsed, and with it much of the moral underpinning of the state and the culture, lots of people just said: Good riddance. In certain sexual ways, Dublin today is racier than New York. Look at the “Life” section of the Irish Times. It writes up gay dating websites and tells readers where to find a geo-location app that can be used for gay hookups. The headlines in the Irish Independent are similar: “Meet the sex guru who says no to marriage,” for instance. Or “Childless & happy? You better believe it.” Amid the church scandals, Ireland rewrote its legal and its informal rules on sex from scratch.

But abortion has been different.

Miscarriage and Justice

Diarmaid Ferriter is a craggy-faced, crew-cut, 40-year-old historian who wears a lot of black. He has won acclaim for his prolific writing about (among other things) sexual mores in Ireland. On a late-winter afternoon, with a low sun slanting through the picture windows of his office at University College Dublin, Ferriter explains, “In relation to contraception, in relation to homosexuality, in relation to a variety of different areas, it was clear that Ireland was going to begin to follow other countries—with the exception of abortion. It has remained more divisive than other issues, it has remained more emotive.” The Irish are uncomfortable with abortion, although explanations vary. “One of the cases that has often been made in relation to Ireland is that we are a beacon of moral purity and we have to retain that in an ever more secular world,” Ferriter says. This seems far from his own view.

In 1983, the abortion opponent William Binchy, a Trinity College Dublin law professor (and brother of Maeve), had a brilliant insight: Although the Irish disapproved of legalized abortion they still very well might get it. Binchy had studied the evolution of abortion law in the United States: First came the establishment of a “married” privacy right for contraception in Griswold v. Connecticut (1965); next, an individual privacy right for contraception in Eisenstadt v. Baird (1972); next, Roe v. Wade (1973) and abortion on demand. The year of Roe, Judge Brian Walsh of the Irish Supreme Court, a friend of U.S. Supreme Court justice William Brennan, handed down a decision that paralleled (and cited) the reasoning in Griswold. What Binchy and others did in 1983 was launch a referendum campaign to add to the Irish constitution an amendment guaranteeing “the right to life of the unborn .  .  . with due regard to the equal right to life of the mother.” Mary Robinson led the opposition to Binchy, mocking him for trying “to raise a scare that the European court might force us to have an abortion law.” The amendment passed, with two-thirds of the vote, and is now known as the Eighth Amendment. The campaign was bitter. The feminist Nell McCafferty, when it was done, blamed “the pig-ignorant slurry of woman-hating that did us temporarily down.”

“Temporarily” was right. An argument could be made (and was) that the Irish did not disapprove of abortion as much as they said they did. Just as the country exported its unemployment problem for most of the twentieth century, it began exporting its unintended-pregnancy problem at century’s end. Britain had legalized abortion in 1967. From that point on, as readers of Edna O’Brien’s novels know, young women seeking abortions crossed the Irish Sea in great numbers. Labour party senator Ivana Bacik, a Trinity College colleague of William Binchy’s and the intellectual leader of today’s pro-choice movement, says: “Since 1967 we’ve had legal abortion available to us, albeit in another jurisdiction.” Legal, yes, but still limited. In 2011, 4,149 Irish women traveled to England or Wales for abortions—roughly 1 in every 500 females in the country. American women, by contrast, get 825,000 abortions a year—roughly 1 in every 200. When an abortion can be had only after a boat or plane trip, it imposes a de facto waiting period, of the sort that has lately been discussed in American states seeking a compromise on abortion law. If the Irish experience is any indication, this appears to reduce abortion sharply.

No one really thought about how English abortions squared with the 1983 amendment until the incredible “X case” of 1992. A 14-year-old girl, known in court papers as X, had been raped and was threatening suicide. Her parents asked authorities a question about whether the fetus’s DNA would be admissible as evidence for rape. The attorney general sought to block the girl from traveling to England for an abortion. The case pitted Ireland’s abortion laws against various EU rights—freedom of travel, for one thing. 

X miscarried, but not before the Supreme Court ruled that a threat of suicide was grounds for abortion under the constitutional right-to-life language. Effectively, the court booby-trapped the constitution. Abortion was now strictly illegal except when it was available on demand. The court asked lawmakers to legislate their way out of the contradiction. For reasons that we will get to later, and which are medical as much as legal, this would not have been possible with the best will in the world.

That is why, even in the aftermath of the economic collapse, even with the ruling Fianna Fáil party disgraced by its bubble-promoting, crony-capitalist ways, Fine Gael challenger Enda Kenny felt the need to reassure the public that, if elected in 2011, his party would not touch the abortion issue with a stick.

Enda Innocence

The present Irish government shares a peculiarity with many Western governments (including the American one): Like them, it came to power primarily because it was not in power when the bottom fell out of the world economy in 2008. All these governments claimed a mandate to act with unprecedented force to set their countries’ finances to rights. But the complexity of the crisis stymied them, and they failed to come up with anything in the way of economic innovation. They did notice, though, that the Bubble Era ruling parties had been reduced to a smoldering political wreck, wholly unable to act as an effective opposition. So with a combination of zeal and self-delusion, these new governments clung to their mandate to act forcefully, diverting it from the purpose for which it had been granted—the economy—and towards a variety of long-cherished partisan (or interest-group) projects. Barack Obama passed health reform in the United States. David Cameron passed gay marriage in England.

In Ireland, Enda Kenny tried to reinvent himself as something that the Republic of Ireland had never had: an outright anticlerical politician. In Kenny’s first weeks in office, the government’s Cloyne Report on sexual abuse found “an attempt by the Holy See to frustrate an investigation in a sovereign democratic republic.” The evidence for this assertion was thin at the time, and looks thinner today. But Kenny gave a thundering speech, deploring some of the institutions the church had mismanaged:

This is not Rome, nor is it industrial school or Magdalene Ireland, where the swish of a soutane smothered conscience and humanity, and the swing of a thurible ruled the Irish Catholic world. This is the Republic of Ireland 2011, a republic of laws, of rights and responsibilities, of proper civic order.

Actually, to Irish ears, this sounded less like twenty-first-century Ireland than Cromwellian England, especially when Kenny closed his speech by calling out Pope Benedict personally, and wound up, after a war of words, recalling Ireland’s ambassador to the Vatican. It was particularly stunning since Kenny’s reputation when he arrived in power was as a conservative, a rural Catholic, and one of the longest-serving political hacks in the national legislature. It was as if, say, Dan Rostenkowski, late in his career, had begun pounding the podium on behalf of vegetarianism or free love.

On abortion, Kenny tacked in line with his Labour coalition partners rather than his own mildly antiabortion party. The European Court of Human Rights offered him a way to do this. It had issued a decision in December 2010 asking Ireland to “clarify” the circumstances in which women could have an abortion under the X case. The court is not an EU institution. Its rulings are not binding on EU members unless those members let them be. What is more, the founding Maastricht Treaty of 1992 stipulated explicitly that nothing in EU law can require Ireland to legalize abortion. But once the Savita case happened, Kenny announced he would use the European Court of Human Rights ruling as a starting point to “legislate for the X case.”

Kenny may have calculated that the scoundrels of Fianna Fáil were now so discredited by their wallet-stuffing greed and their financial incompetence that he would face no viable opposition anytime soon. If so, he was mistaken. In the months after the Savita case, Fine Gael’s support in the general public dropped like a rock, from 34 percent to about 25. Left for dead as recently as last fall, Fianna Fáil found itself restored this spring to its position as the country’s most popular party. Twenty-five thousand people demonstrated against Fine Gael in front of the legislature—not as impressive as the crowds that came to protest the Iraq war in 2003 or austerity in 2009, but far more impressive than anything Kenny’s side could muster.

How Irish people felt about abortion was not easy to tell from the polls. A much-circulated Irish Times survey showed 71 percent wanted abortion when the mother’s life is in danger and 78 percent wanted it in cases of rape or incest. But only 37 percent wanted it in the “best interest” of the mother. A group called the Pro-Life Campaign issued its own poll showing that when you phrase the question a certain way (“Are you in favour of or opposed to a constitutional protection for the unborn that prohibits abortion but allows the continuation of the existing practice of intervention to save a mother’s life in accordance with Irish medical ethics?”), you get three-quarters of Irish people (77 percent) supporting the present ban. This may not settle the matter, but it does indicate that Irish public opinion on abortion is highly cajolable. The expectation that Ireland, after a brief political to-do, will settle into a European-style consensus about abortion is probably wrong. Ireland is more likely to resemble the United States, where the abortion issue, recklessly addressed at the outset, has done decades’ worth of damage to the political system.

Two results leapt out from the details of the Irish Times poll. The first is that acceptance of abortion rose pari passu with income. Rich professionals wanted it most, poor farmers least. No surprises there: The rich can always make more use of sexual autonomy than the poor. But there was also a result that seemed to confound this correlation. The age cohort that most favored abortion was neither teenagers nor young adults, but rather the early-middle-aged—those between 35 and 49. The historian Ferriter offers an explanation for this spike. “If you are between 35 and 49,” he says, “you have seen the 1983 campaign, you have seen the X case, you have seen the Savita case, you have learnt that this is not a black and white issue. You have learnt that trying to solve this problem in absolutes does not work. Twenty-four-year-olds haven’t seen that.” Ivana Bacik believes that the result does not necessarily contradict the correlation between sexual autonomy and abortion approval. It is just that the age of sexual autonomy starts later in Ireland. “People live at home here much longer,” she says. “There is no tradition, necessarily, of leaving home at 18.”

Kenny let it be known that on the abortion vote he would subject his own party to the three-line whip—a parliamentary procedure of English origin in which those who vote against the government are voting their expulsion from the party. It was an unusual use of the whip, which is generally employed on matters like budgets and tax reforms, almost never on “issues of conscience.” It remained to be seen whether his colleagues would take it, especially after 10 Fine Gael legislators traveled to the United States as guests of the antiabortion group Family & Life—“to educate ourselves on pro-life issues,” as one of them told the Irish Mail.

Polls showed Fine Gael voters were less comfortable with abortion than the populists of Fianna Fáil, the progressives of Labour, or the nationalists of Sinn Féin. Some of the toughest language against abortion came from within Fine Gael itself. John Bruton, the party’s last prime minister before Kenny, argued that it was folly to legislate on the X case, since that decision had misinterpreted the constitutional language about equal rights of child and mother: “To introduce a law providing that an expression of a threat of suicide by one person would be sufficient ground for the taking away of the life of another,” Bruton wrote, “would not be in accord with the actual words in the Constitution. There would be no ‘equal’ right to life in such a law.” One of the party’s most charismatic and wily politicians, the 33-year-old Europe minister Lucinda Creighton, had joined a party revolt against Kenny years before, and she now began attacking the government’s position on abortion. She spoke of women she had known who had had abortions and been “very damaged by it” and warned that “limited abortion has invariably become a liberal regime.”

Floodgates

The Irish favor the very narrowly limited law they are being promised. But they oppose abortion on demand. Creighton was telling them that if they support the former, they will get the latter. That was the heart of the issue that Savita Halappanavar’s death unleashed: Will this itty-bitty, health-based exception to Ireland’s abortion ban open the floodgates to the normalization of abortion across society? 

My friend with the brother who thinks of the church as a criminal organization says: “It’s going to be limited. There’s nobody who’s saying, ‘We want to open an abortion clinic on every street corner.’ ” That is the Fine Gael view as well. The government is “not considering in any shape or form abortion on demand,” Justice Minister Alan Shatter said in a speech in November. Diarmaid Ferriter agrees. “I accept that it’s big,” he says. “I don’t accept that it’s a floodgate moment. I think that is propaganda. And I think that it is working to the advantage of the pro-life movement, of the so-called pro-life movement, to present it as a floodgate moment. It’s about catch-up. It’s quite clear we’re not going to have anything resembling a liberal abortion regime.” The Economist summed up the entire controversy with the bemused headline: “A limited plan to ease Ireland’s laws against abortion provokes sharp debate.”

All these distinguished people are wrong. Abortion opens up possibilities that societies that lack it cannot anticipate. The “Therapeutic Abortion Act” that Ronald Reagan signed in California in 1967 increased the number of abortions by a factor of 200. The Abortion Act which passed that same year in Britain was supposed to be tightly limited. But there are about 200,000 abortions in Britain annually, the great majority carried out on the basis of “Ground C”: a “risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the woman.” This is a gripe of both pro-choicers (who believe it humiliates the women who request it) and pro-lifers (who believe it makes abortion easy). 

The case against abortion is at its strongest when the question is “What is an abortion?” It is at its weakest when the questions concern gray areas, such as the number of weeks’ gestation after which abortion ought to be illegal. Once the pro-life principle is surrendered, the argument takes place on pro-choice terms, since pregnancy is full of gray areas. All Western nations used to have mostly coherent regimes that held abortion to be a crime. Today they have mostly coherent regimes that hold abortion to be a right. But the regime that would result from “legislating for the X case,” with its incentives to women to credibly threaten suicide, is so logically feeble that it would self-destruct the moment it made contact with an Irish or a European courtroom. One almost suspects it is meant to self-destruct, leaving a court-imposed regime of abortion on demand in its place.

When you travel a certain distance from Fine Gael circles, pro-choice leaders are quite blunt and sincere about what they want. “The agreed position [between Fine Gael and Labour] is that we’ll be legislating for the X case,” says Ivana Bacik, the law professor and Labour senator, sitting in a quiet conference room near her senate office. “And I’m really delighted we’re going to do that after many years of delay on it. We’ll be the first government to face up to this. But it will be very minimal. As somebody who’s very much pro-choice, obviously I would still be campaigning for abortion to be available on a broader range of grounds. I accept that that will probably mean a referendum to delete the Eighth Amendment.” 

Senator Rónán Mullen, who spent five years as a spokesman for the Catholic church and is now a pro-life leader in the senate, says, “It is significant that those who have longer-term aspirations to bring about abortion rights in the country are quite happy with what the government is proposing. They see that as getting them off the tarmac.” 

The office next to Mullen’s is occupied by Clare Daly, an ebullient, forthright, charismatic North Dublin radical who advanced a groundbreaking abortion bill last year. A veteran of Labour and the country’s small Socialist faction, she has yet to find a party she cannot get herself kicked out of for being too left-wing. She has a striking head of red hair and an equally striking gift for reasoning her way to the core of political issues. It was she who suggested I speak to Rónán Mullen. They see eye-to-eye on one thing: the vast stakes of the change that Fine Gael is trying to pass off as a mere tweak. “Symbolically it changes everything,” she says over coffee in the sunny cafeteria of the Irish agriculture department, down the street from the legislature. “And once you’ve legislated one circumstance, well, then, you’re immediately dealing with fatal fetal abnormalities, rape, incest, blah-blah. That’s why they’re all kicking so much. That’s why they’re going mad. That’s why they have the campaign that they have.”

She means the pro-lifers. I say, rather hesitantly, “So the Rónán Mullens of the world—”

They know!” Daly interrupts. “They’re right!”

Mighty Casey

In early January, Patricia Casey, a mild-mannered professor of psychiatry at University College Dublin and an expert in suicide at Dublin’s Mater Misericordiae Hospital, was called to testify about the 2010 European Court of Human Rights judgment on abortion at a three-day session of the Irish legislature’s joint health committee. By the time she was done, there was nothing left standing of the argument that the X case decision could provide a basis for any kind of abortion law. 

The problem lay in the inclusion of suicide threats as grounds for abortion. Doctors have always agreed that suicide among pregnant women is rare. In the two decades since the X decision, pro-lifers and pro-choicers alike trumpeted this rarity—the former to show that such cases, however tragic, were too unusual and specific to build on constitutionally, the latter to claim that the public needn’t worry about opening the floodgates to abortion on demand. Casey presented documentation to show just how rare expectant mothers’ suicides are. Since 1980, at the three main Dublin maternity hospitals, there had been 685,511 live births. There had been 79 maternal deaths. Two of those deaths were by suicide. But on closer examination, both had come after the delivery of the baby. Casey did not claim pregnant women didn’t commit suicide. But she found no record of any case at Dublin’s three largest maternity hospitals across a third of a century. Casey then examined a Finnish study of suicides surrounding pregnancy. The suicide rate (per 100,000 women) in the public at large was 11.5. For women after birth it was 5.9. For women after abortion it was 34.7. 

When I interviewed Casey weeks after this testimony, she showed no eagerness to draw easy conclusions from the data. She urged caution before leaping to the conclusion that abortion increased the risk of suicide. It could be that seeking abortion is correlated with a different factor that creates a vulnerability to suicide. What it did show, if you stood back and looked at the matter scientifically, is that abortion “does not reduce the risk of suicide but rather is associated with a several-fold increase.” And now came the devastating argument. 

What the justices had done in the X case was practice medicine. They had diagnosed a medical condition—suicidality—in which Casey had specialized for much of her career as a doctor. They had prescribed a treatment for that condition. And that treatment, Casey said, is “not supported by any scientific evidence.” As the day wore on, none of the psychiatrists called to testify disputed Casey’s general characterization. John Sheehan, a doctor at the College of Psychiatry of Ireland, described the idea that an “intensely suicidal” woman could be treated with an abortion as “completely obsolete.” She would need to be admitted to hospital, for one thing—not given a medical procedure and sent home. By the end of the day’s testimony, the idea of permitting an intensely suicidal woman to decide on the death of the child she was bearing looked positively odd. What other decisions would you encourage a woman in such a frame of mind to make? Would you let her alter her will, if that were the only “cure” for suicidality? Take out a mortgage? File for divorce? Put a child up for adoption?

It was stunning. An American listening to such public dramas is used to seeing the traditionalist side of the arguments cast as waging a “war on science.” Yet here in Ireland the side claiming to speak for progress was espousing medical superstition worthy of a rustic midwife. Priests, meanwhile, especially when alluding to advanced ultrasound, were forever invoking the authority of science. Father Tim Bartlett, assistant to the president of the Irish bishops’ conference, told me at breakfast in the refectory in Maynooth, “If we can hold this for another generation in Ireland, I think science and culture are going to change, and future generations will thank us that we didn’t allow this regrettable step to happen.” 

In the Aftermath

The Kenny government expects to have the rough outlines of its legislation on abortion ready by Easter. After that, the debate on legislation will begin in earnest. The legal reasoning behind legislating for abortion in Ireland has not shown itself particularly strong since Kenny began to argue for it in the fall. And yet, these questions are seldom answered by reasoning. Most Irish people have the sense that they are being led willy-nilly towards a regime of wider abortion rights. “Once you launch an issue like abortion into the kind of discussions we have nowadays,” says the author John Waters, “it moves inexorably towards a conclusion. It’s not a question of whether we have abortions, it’s a question of when. Because the conditions of the debate are not really democratic. It is a discussion from which reason has been extracted.”

Waters is one of the most interesting thinkers in Europe. He occupies a special role in Irish intellectual life. What Czesław Miłosz did for a place (Cold War Poland), he has done for a generation (the baby boom). He has examined the new ideology that its ruling elites extol as a source of liberation and exposed it as a new form of servility. “This generation,” he tells me, “has not been honest about its experience of freedom.” Waters is not a clerical fuddy-duddy. He is a Catholic of an undogmatic kind. (“I am alert to the problem of being pigeonholed.”) He never went to university. He wears his hair long and made his living for years as a rock music critic.

Others have seen that the collapse of the Irish economy, so much in the world news since 2008, is wrapped up in the collapse of much bigger systems. “Only in the aftermath of the greatest wars,” Waters’s friend, the octogenarian Dublin essayist Desmond Fennell, told me, “were there so many women living alone with children as there are now in Western Europe. Now they live alone with no men killed on the battlefield.” Only in the aftermath of the greatest wars, too, have we seen such high levels of debt. Waters sees Ireland’s problems—economic, religious, social—as expressions of the same failing: a tendency to chase after an “approximation of satisfaction that operates by stealing from the future.”

“It was one heck of an achievement to persuade a nation that had spent several centuries fighting for its independence to give it away salami-style, slice by slice, in return for motorways and flyovers,” Waters wrote in a recent book, “but that’s essentially what we did to ourselves.” Thirty years ago, Ireland was poor but special. Tempted by the European Union, by prosperity, by sexual liberation, it has swapped much of what was unique, precious, and powerful about it for a conception of freedom that you can find in any country in the West. Some will call it progress into Ireland’s European future, others a return to the deference of Ireland’s pre-revolutionary past.

Christopher Caldwell is a senior editor at The Weekly Standard.


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