Inevitable, really. This Government can’t really count on many loyal supporters, and they can’t afford to be completely alienating journalists and pro-choice activists (sorry, I repeat myself) with whom they made a pact all the way back in 2016 or so. On Friday, Donnelly’s department quietly tried to walk away from the idea, but he found himself on the wrong end of a ferocious backlash from lefty, feminist Ireland over the weekend, and so, yesterday, the Examiner’s Elaine Loughlin got to announce the good news: The Minister had won the victory over himself.
🚨 Update: Minister Stephen Donnelly says he is “fully committed” to safe access zones. Dept had stated that current legislation covers abortion protests.
Compare and contrast both statements 👇 pic.twitter.com/X1nA83wH9I— Elaine Loughlin (@Elaine_Loughlin) August 7, 2021
It’s all nonsense, of course, for the reasons outlined here yesterday. He may well be “committed” to the idea of safe access zones, but so was his predecessor, Mr. Harris. So too, you might safely assume, are the civil servants in the Department of Health. The simple problem here is that it can’t be done without creating a legal mess. Up until now, they have resisted the temptation to say “screw it” and create a legal mess anyway, for a few votes. But that might not last long.
The question, really, is how all this will play out. The first few steps are obvious enough.
Some opposition politicians, and NGOs, are working on drafting legislation of their own. This will be published, to great media fanfare, in the autumn. You can expect it to pass the Seanad, and possibly the Dáil, as an urgent private members bill:
The Together for Safety group is now working with the Irish Council for Civil Liberties (ICCL) to draft legislation which would implement safe access zones in order to protect women seeking abortion services, but also to stop intimidation of medical staff and others attending health facilities.
“We are all entitled to attend and to access medical services in dignity and indeed in anonymity and protests of that nature do violate that,” Together for Safety co-convener, Karen Sugrue said.
Labour senator Annie Hoey said that she, too, will publish legislation in September on the issue, if the minister does not.
“Legislation providing for access to abortion services is not enough — we also need to ensure that women have safe access and are protected when they seek out abortion services,” she said.
That legislation might win a vote or two in the Oireachtas, but it will not become law. The Government will do one of two things: It will either throw it off to a committee, where it will die a death (much like the assisted suicide bill which passed to great acclaim last year) or it will have the Attorney General declare (almost certainly accurately) that the legislation is unconstitutional. The Government will then say that it is continuing to work on its own legislation – a position it has held now for three years, without ever producing as much as a draft bill.
The core problems with the proposal were outlined in my piece yesterday, and they are not likely to go away any time soon. The political problem for the Government here is that it is faced with an array of lefty NGOs and Newspapers (the Irish Examiner, unsurprisingly, appears to have made this priority number one) who will accept nothing less than total victory – which the Government will be unable to deliver. So what will they do?
They have two options, really: They could simply pass legislation giving effect to safe access zones, and wait for somebody to take a high court case against it, and roll the dice. That’s not a bad strategy, since President Higgins is unlikely to send it for Supreme Court review, and any case against it could take ages to mature, or be taken by a litigant who makes mistakes, or makes bad arguments. At minimum, such legislation could get them to an election, and then it might be somebody else’s problem. That would be completely lawless, and reckless, but if you’d put lawlessness and recklessness past this lot, especially when they are desperate and in a mess, then you have not been paying attention.
The other option is to pass legislation that looks like it is safe access zone legislation, but isn’t, by creating offences that are impossible to prosecute: “It shall be an offence to intimidate any person who is procuring abortion services or attending at a facility where abortion is provided”. Such a law would be impossible to prosecute or police (who defines what “intimidation” is?) but it might be an appealing option to make it look as if they are doing something. Whichever option they choose, though, you can be absolutely certain that they will slow-walk it as much as possible.
They have made a promise, and Minister Donnelly has now repeated it, that they cannot keep. It’s quite enjoyable to watch them squirming over it.