Before Question Time I said the simple way of looking at this legislation in the context of the present wording proposed to be included in the Constitution was to regard those who support this wording as being against abortion and those who disagreed as being in favour. This is one of the great ironies of this debate, because people have made these presumptions in the belief that this Bill merely copperfastens the existing law by ensuring that in no circumstances can the Dáil or the court require the Oireachtas to provide legislation to permit abortion. This problem arises because of the nature of the wording that this Bill proposes to be included in the Constitution. First, I should like to refer to the words which are
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.
In recent days we have had different interpretations offered as to what this wording means. The Attorney General pointed to the fact that the word "unborn" is used in a most unusual context and does not state exactly to what it is referring. He indicated it would be open to the Supreme Court to interpret the word "unborn" as being the foetus when it attains the state where it is possible of being born, after 28 weeks within the womb, which is the medical prognosis that there is some possibility that the foetus could retain life. In those circumstances, that was a valid interpretation that this amendment would permit an abortion up to the 28th week of pregnancy.
Another possible interpretation is that "unborn" would be taken by the Supreme Court to mean the time of conception, and that as and from immediately upon conception taking place, the unborn would be protected. If that was correct, and looking at the definition of the word "unborn" in the context of this amendment, there would not be a problem, but we are dealing with a constitutional provision. Its proponents have sought to have it included in the Constitution to bring certainty to our law. Even at the start of this proposed new provision one can see uncertainty.
I have mentioned two possible valid interpretations of this wording. It has also been suggested by the Attorney General that by virtue of the right of the unborn being regarded as having equal force and effect as the right to life of the mother, if a mother had an ectopic pregnancy, or is suffering from cancer of the womb, or requires other medical treatment that could result in a foetus being aborted, even though the intention was to save the life of the mother, doctors would be unable to act because another possible interpretation of this provision is that the unborn and the mother would have an equal right and medical personnel would have to stand back, watch what happens and hope both lives would save themselves. If there was a possibility that that was not the case, medically they could not intervene until they were satisfied that the foetus or the mother would cease to live, at which stage presumably an attempt to save the foetus might or might not be viable.
The result of another interpretation of the word "unborn" is that constitutionally the Supreme Court at some stage in the future could say it is constitutionally acceptable for abortions to be conducted until the 26th or 28th week of pregnancy. Because of the equality of right between the unborn and the mother, even in those instances where presently there can be medical intervention to save the life of the mother, that would become constitutionally impossible.
There is another possible interpretation which has not yet been publicly discussed, but which I believe is just as valid as those which have been suggested — and in my view, it is just as worrying. Let us take the view that this amendment does what I think was intended by its drafters, that is, it protects the right to life of the unborn after conception — that phraseology is not used — and ensures that where the life of the mother is at risk there can be medical intervention. A simplistic view could suggest that the wording preserves the existing legal position. I believe, however, that if this wording is included in the Constitution in its present form, it will go a great deal further than the existing law, and eventually will do the opposite to what its propoments campaigned for — it could open the flood gates to abortion, and it could be done quite simply.
If the intention of the article is to protect the equal right to life of the mother, one must ask what that means. Does it mean that if a mother's life is seriously endangered by a pregnancy, we would allow the pregnancy to go through a full term and possibly keep the mother alive on a life support machine; or does it mean something more than just preserving a physical existence? Has the quality of life some relevance to this argument? If it does, if included in the Constitution, would this Article permit abortions to take place where not only a woman's physical health but her mental health was endangered? Could it not equally be argued that the right of the mother to life requires a right to a proper and viable life in mental good health? Is that not a valid argument? If that were the final judicial interpretation of this amendment, then this amendment would permit abortions to be carried out where a mother's mental health was said by psychiatrists to be endangered as a result of her becoming pregnant. I do not believe that that is an intent on the part of the drafters of this Article. The interpretations to which the Attorney General has referred, the worries which the Minister has expressed and the additional possible interpretations of this Article in the area of abortion which I have given all have validity. There is not a Member of this House who can categorically state that if this matter were dealt with before our courts this year, next year, or in 20 years time, one of these interpretations to permit, and indeed constitutionally require, abortion would not be accepted. It is not something that could be constitutionally required under the existing Constitution, without this Article.
That there is a variety of valid, different interpretations of this Article means that it is not appropriate to be included in the Constitution to carry out the intent of those who believe that such an Article is required. Too often we address our remarks to each other across the floor of this House and engage in some form of party-political battle; tactical forays take place across the dividing carpet; we make points which we hope will score a few political knockouts on the way and in the context of the ordinary rough and tumble of political life in this House in debates on ordinary legislation that is an acceptable exercise. However, it is not an acceptable exercise when considering amending the fundamental law which governs our civil and religious liberties. It is not acceptable for Members on either side of this House to insist on inserting into our Constitution a new Article which contains a form of words which it can quite cogently, accurately and honestly be argued might achieve exactly the opposite purpose to that proposed.
To all the Members of this House, in Government and in Opposition, who oppose abortion, it should be a major concern, as it is with me, that if this Article were included in the Constitution, not only could the courts constitutionally require this House to enact legislation at some future date to permit abortion but it is quite likely that as a result of this Article sections 57 and 58 of the Offences Against The Person Act which presently prohibit abortion would be found unconstitutional. This Article would be the legal ground for such a finding on the basis of one of the interpretations which have been given. The 1861 Act does not provide for abortions to take place in the exceptions to which I have referred. For example, the present law does not permit an abortion to take place if a woman's mental health might be endangered if she became pregnant.
Because of the possibility of this Article being interpreted in one of the suggested ways, if included in the Constitution, rather than copper-fastening the 1861 Act it would form the vehicle upon which that Act would be challenged. In saying that, it behoves Members to ask where this original form of wording came from. This has not yet been made clear to us. It is known that successive Attorneys General found it difficult to draft an appropriate form of wording. The form was accepted in good faith by the Fine Gael Party when this form of wording was published immediately prior to the last election — a form of wording recommended by the previous Attorney General, discussed within the relevant Government Departments, fully and properly analysed with all the legal machinery available to Government and found acceptable and workable. Yet, what has been found since? I understand that this form of wording is not anywhere to be found in the Attorney General's Office, but in the files of that office there are to be found four possible different alternative forms of wording for a constitutional Article, none of which includes the form of wording contained in this Bill. It has been discovered in the Department of Justice that there is no evidence to indicate, or information to state, who gave birth to this form of wording. There is no file on this form of wording in the Department of Justice.
As a Member of this House, I want to know was this form of wording drafted by the outgoing Attorney General of the previous Government, or by his predecessor and does it have the approval of either? If it does not, who drafted it, where did it come from? Did it come out of a ministerial back pocket in case an election was called? What was the reason for the production of a form of wording of this nature, of which no detailed examination would appear to have been conducted either in the Attorney General's Office or in the Department of Justice, prior to publication. If that detailed research has been conducted, where have the files gone? Has the outgoing Attorney General got them or has some other Member of the party in Opposition a tale to tell as to who invented this form of wording? That is a very valid question.
There have been criticisms in this House of the Director of Public Prosecutions issuing a statement and criticisms inside and outside the House of the present Attorney General's intervention, which intervention has been little more than an explanation of the legal problems which he, as the highest legal officer in the State, sees with this wording. Had either of the two preceding Attorneys General similar reservations and worries about this Article and will they publicly state whether either is responsible for the drafting of this form of wording?
Ironically, some of those, with whom I have no sympathy, who believe that abortion should be made available on demand here — something with which nobody in this House has sympathy and very few outside it, either — are now opposing the Article and those who do not want legalised abortion are supporting it. In reality, it should be the other way around. That is one of the great irrationalities of the present debate.
The wording of this Article could have other unforeseen consequences in the area of family planning. The worries in this area arise directly out of the phraseology contained in the Article. It is accepted by the vast majority — indeed, it is declared as a constitutional right in the McGee case — that married couples have the right to plan their families, to determine how many children they wish to have, the right of access to information about family planning services and to contraceptives. Those advocating this amendment have said that they do not wish to affect this area of our law, or affect the rights of the family and married couples to determine the number of children and to have access to contraceptives. However, this amendment could seriously invade the area of marital privacy which was constitutionally declared in the McGee case. In so doing, it could form the constitutional basis for striking down family planning legislation enacted in 1979 as unconstitutional.
The intention, as described in the Article, is to protect the life of the unborn. As I said earlier, the intent of the draftsmen was to protect the life of the unborn after conception. But the amendment does not use those words. It merely uses the word "unborn". If one consults a dictionary to find out what the word "unborn" means one finds it is a very difficult word to define. In fact most dictionaries, just as they do not define the word "undead" do not define the word "unborn". Presumably something unborn does not have to be conceived, something unborn may not be conceived at all. A child that might be born to a family in 20 months' time, at this moment in time, could quite correctly said to be unborn.
Therefore, if we take that as a possible interpretation, which it is, if we even give this article a liberal meaning, a meaning that would permit intervention when a mother's life is at risk, could the effect of this article be to find that constitutionally, on its coming into force, contraceptives would be confined and made available only to married women whose lives would be placed in jeopardy if they became pregnant? There is a valid argument to be made in this area. I believe also that some of the more extreme groups who have advocated the need for this type of amendment of the Constitution, might see this as an opportunity — though they will not say it now, but might at a later stage after we have had our referendum — to use this article, as defined in this Bill, as a means for launching constitutional action to abruptly invade the right to marital privacy previously declared by our courts and to curtail the right of married couples and adults in this country to have access to contraceptives. That is an unforeseen consequence of this Bill. I believe that that possible interpretation and eventuality is as valid as many of the others we have at present.
All of this clearly indicates how inappropriate it is that this form of wording be included in our Constitution. Of course there are other possibilities, there are other problems that could arise with the form of wording; some people may see it as a problem, others may not. One of the great things about the 1937 Constitution is that whereas it has its faults and there are aspects of it many of us would like to see reformed, it is, in its own way, a vibrant, living, legal document that has been used by the courts to declare many constitutional rights that the courts have regarded as implicit in the Constitution that were probably never envisaged by the drafters of the Constitution, many of which probably would come as a surprise to the Members of this House who had the privilege of being here when that Constitution was debated.
There have been all sorts of rights found to have been implicit in the Constitution — the right to travel, the right to bodily integrity, the right, to which I referred earlier, to marital privacy. The courts have gone out of their way to declare the rights of children. The courts use the article to find a very basic area in our taxation law, that we could not tax married couples living together at a greater rate than two single people living together. All of these are rights that the courts have interpreted as implicit in our Constitution.
I wonder what other rights could be taken out of the wording of this article and be found, at a future date, as implicit in our Constitution? If we look at this article simply, bearing in mind all I have said about the effects it could have on our abortion and family planning laws — effects I believe which are highly undesirable — we find that there are one or two desirable implicit rights that could be found if we enacted this article that I am not sure members opposite are aware of. I believe there are many people on this side of the House who are opposed to the death penalty. I include myself in that number. I believe also there are a number of Members on the opposite side of the House who take a similar view. But it was the policy of the Fianna Fáil Party, during the period in office of the last Coalition Government, to make it quite clear that they were in favour of retaining the death penalty.
If we enact in our Constitution an article that provides for a right to life of the unborn it is not a great leap of intellectual mountain-climbing for our courts to interpret that article as implicitly also giving a right to life for the born. Arising out of the right to life of the born, without the difficulties of balancing rights, in the context of the right to life of the mother, we would have a fairly absolute right to life for all of those living in the State. I would welcome that development; that is not something I would quibble with. That type of right, however, would result in what remains of the death penalty in our criminal law being found to be unconstitutional as well. In fact, finding that as an implicit right resulting from this constitutional amendment, is a far more likely right — indeed is one of the few desirable possibilities arising from this amendment, as presently worded — and could end capital punishment in this country. I wonder if Members opposite have thought of that? If they support that, I am delighted to know about it but I wonder do they understand that is a possibility.
Very often in this House we conduct what can best be described as a dialogue of the deaf. We engage in debate. We hope, with a bit of luck, we might get reported the following day. Perhaps if one says something either outrageous or vaguely intelligent one may find one gets one's picture in the paper. By and large what goes on in this House by way of debate is irrelevant because the courses of action are pre-determined by the Government of the day.
This is an issue on which I believe all Members of this House are united in one purpose, that is their opposition to abortion being legalised in Ireland. I believe there is also a majority of Members of this House who would wish to see our existing family planning laws not curtailed, probably a majority would wish to see them liberalised, made more acceptable and sensible. To all of those, and in particular to Opposition Deputies, I would ask them seriously, as legislators, to apply their minds to what is contained in the present wording that it is proposed be included in the Constitution, and to see that those people who are sounding a warning about this particular wording are genuine in what they are doing, that they are not trying to score political points, or get out of undertakings that have been given but to ensure that a major mistake will not be made by Members of this House simply because one or other side is involved in some type of tactical political battle.
I would appeal specifically to Members on the opposite side of the House who are distinguished by their knowledge of law, who are aware of the way the Constitution and our courts work in practice, to state their views on this amendment. There is a well-known academic lawyer in the Fianna Fáil Party, there are senior counsel and respected solicitors — Deputy David Andrews, Deputy Michael O'Kennedy, two respected senior counsel who I believe would share many of the worries I have expressed. There is then Deputy William O'Dea, a well-known law lecturer who has gone to press on many occasions seeking to reform antiquated areas of our law and who well understands the workings of our Constitution. There are also Deputies Colley and O'Malley, qualified solicitors, who before they came into this House worked as lawyers, men who in this House have contributed to the development of legislation over the years. If any of those people sat down and examined the wording of this amendment I feel sure they would share many of the worries I have expressed about it. All of us as legislators have a duty to do that.
So far I have addressed my remarks to the wording of the present amendment. It has been stated by the Government that work is being carried on to prepare an alternative form of words and it would not be appropriate for me to address myself to that issue since I await the alternative form to be proposed. I wish to say something about the nature of this referendum, the nature of the campaign which preceded this debate and is at present taking place. It has been said by many people of goodwill that there is a sectarian element involved and that the Article before the House could be regarded as sectarian. I do not believe it was the intention of the people who sought a constitutional amendment to be divisive or sectarian or that they mean to approach it from a sectarian basis. Neither do I believe this was the intention of the person who drafted this Article or of Deputy Haughey, Deputy Woods, the Fianna Fáil Party or the present Taoiseach to be divisive or sectarian. As a lawyer who has been involved in many of the recent constitutional cases before our courts, I believe the problems I have outlined bear no relevance to sectarianism of any nature whatsoever. They are real problems related to real social issues which we must fully and properly consider in this House and on which there will be different views right across the religious divide.
There is a real problem with the nature of the campaign that has been conducted by some people. It is a continuing problem which I believe will be exacerbated if and when this legislation goes through and a referendum campaign gets under way before polling day. Let nobody be in any doubt that religious borders and barriers are being drawn up. We have already seen different Members quoting what representatives of different churches have said. We have had Papal Encyclicals and quotations from different members of the Protestant faith, Church of Ireland, Methodist and Presbyterian, by Members of this House trying to confirm that this is not a sectarian issue because there is someone in each of the different religions who supports the wording of the present amendment.
I do not believe that this amendment has a religious or sectarian bias. Indeed, it could be interpreted in a way that would permit abortion in circumstances that would be anathema to every religion in this country but if and when a referendum is held, be it on this or any other wording, there will be a difficulty. I believe we will see public statements of a nature that have never been made since the foundation of the State. I believe the type of campaign some people will run will result in divisive and inflammatory public comment being given an aura of credibility and reportage which would never heretofore have been given. The type of campaign which could follow in the course of such a referendum could do serious damage to the body politic of this country, and I believe it could result in this whole issue descending into the realm of political mythology as other issues have in the past. We have plenty of such issues in our political mythology which fuel allegations of sectarianism or of domination of one or the other parts of this island by the major religions. Most people no longer even remember what the mother and child scheme was about but it is part of our mythology.
The Tilson case is part of the political mythology of all members of minority faiths. It was a law case in which a judge upheld a pre-nuptial agreement between a mother and father or a husband and wife whereby they agreed that children be brought up in the Catholic faith. The court allowed those children to be brought up in the Catholic faith and the parties to the marriage were a couple of mixed religion. That case descended into our political mythology because a High Court judge made intemperate remarks about what was then the special position of the Catholic Church. What still is not noticed is that the case eventually found its way to the Supreme Court and the judges there totally disagreed with what had happened in the High Court. The Tilson case, rather than being part of the political and religious mythology of our country, should be part of the history of women's lib because it did not seek to support a religious divide but gave an equality of rights to mother and father or husband and wife of a nature which did not then exist in the United Kingdom or in many other countries.
I believe that in this campaign people at the extreme end of those who propose this amendment will make remarks of a nature which up to now would not have been treated seriously and would not have been reported. They will generate an atmosphere which will do great damage to the country both nationally and internationally and to all of us in this island who have for so long talked about reconciliation with the North and the closing of the divide that exists. I say this not because of the issue. I believe that the vast majority in the North, whether Protestant or Roman Catholic, are as much opposed to abortion as are people in the Republic. There is a danger of our being treated to some form of hysterical campaign in favour of this referendum which will result in swords being drawn and a reopening of the religious divide which does not really exist any more in the Republic.
I think I should say something about one of the organisations who have sponsored this amendment, the Society for the Protection of the Unborn Child. I believe that organisation have conducted a campaign of vilification against people inside and outside this House which the vast majority of people find disgusting.