Limerick East): Tairgim: “Go léifear an Bille an Dara hUair.”
I move: "That the Bill be now read a Second Time."
The Bill proposes to amend section 3 of Article 40 of the Constitution by adding the following subsection—
"3º 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."
The Government are proceeding with this measure in accordance with the commitment in the Programme for Government that legislation would be introduced to have adopted the Pro-Life Amendment published by the outgoing Government. As stated in the Programme, the Parliamentary Labour Party reserve the right to a free vote on this issue.
I am sure the reasons for proposing that the Constitution should be amended in this respect will be familiar to all Deputies, having regard to the publicity which this issue has received over the past year or so but, for the record, I think it right to refer briefly to the background.
The existing statute law on the subject is contained in sections 58 and 59 of the Offences against the Person Act, 1861. The effect of those sections, broadly speaking, is to make it an offence unlawfully to procure an abortion. Until recent years, those provisions were regarded as adequate but developments, mainly in other countries, have taken place which have given rise to concern amongst many people. It has become apparent that judicial decisions concerning abortion can alter fundamentally what had been accepted to be the law, even to the extent of introducing what is virtually a system of abortion on demand.
I do not suggest that there was any widespread fear that such a development might occur for a number of years ahead as far as our own Supreme Court is concerned. There was also, however, another and, I believe, a well-founded fear. That was that a situation might arise where an Irish Government might find itself pressurised by a decision made abroad — in Strasbourg, for example — into introducing legislation to facilitate abortion or, in the alternative, faced with a series of legal actions before the European Court. Recent developments in cases taken under the European Convention on Human Rights are such as to suggest that that Convention may be interpreted as conferring a right to have an abortion.
I do not suggest that a constitutional change would affect the decision that may be made by the European Commission or Court but, if the people of this State now indicate through a referendum that they do not want abortion to be facilitated, it seems to me that that expression of the people's will must prevail. It is quite clear, of course, that this State could never have signed that convention if it had been seriously thought that it might one day be interpreted in a way that would make pro-abortion legislation compulsory. I may say in passing that I very much hope it will never be so interpreted because, if it is, I believe that it will prove detrimental to the further development of international agreements relating to human rights and freedoms. I say this because the interpretation of a convention or similar agreement in a wider way than was ever thought possible at the outset, while it may appear at first sight to be a vindication of a particular point of view, cannot but make Governments much more reluctant to enter into any further commitments of a similar kind since they cannot know what they may be committing their countries to.
It will be clear from what I have already said that I am not suggesting that there is any serious risk that the Supreme Court as it is now constituted would hold that the Constitution as it stands is such as to be incompatible with the present statutory prohibition on abortion. Indeed, the very opposite might well be the case — the court might hold that there is already a constitutional protection for the unborn even though it is not explicitly stated. The issue has not, in fact, come before the courts but there are two dicta of Mr. Justice Walsh which suggest that the unborn child has a constitutionally protected right to life. It will suffice to refer to one of them.
In G. v. An Bord Uchtála, he said-
"[The child] has the right to life itself and the right to be guarded against all threats directed to its existence whether before or after birth .... The right to life necessarily implies the right to be born, the right to preserve and defend and to have preserved and defended, that life."
Nevertheless, that view, however persuasive, is not binding. Our constitutional law is in a continuous state of development. In this context, it is necessary to think of the United States Supreme Court decision on marital privacy. That proved to be the first step on the road to what has become something very close to abortion on demand. Such changes could come about in disregard of deeply-felt convictions of the majority, even the great majority, of the general public. Changes have come elsewhere as a result of legal decisions with consequences that have dismayed even some of the very people who were originally to the fore-front in advocating liberalisation of the anti-abortion laws.
These were the considerations that led my party — and, I assume, the main Opposition Party though perhaps I should make it clear that I am not authorised to speak for them — to agree to propose a constitutional amendment to protect the right of the unborn so that the amendment might be put to the people by way of referendum. The Bill we are debating today was presented to this House by the previous Government last November and, having lapsed on the dissolution, was restored to the Order Paper on the initiative of this Government.
That is all I think I need say on the background. It will be clear from what I have said that, as I see it, the object of the amendment, to put it briefly, is to ensure that, unless and until the people in another referendum decide otherwise, the kind of statutory restriction on abortion that is contained in the existing law, as that law is generally understood to be, can be retained without risk of being set aside by any judicial authority, domestic or foreign, and moreover that it will in fact be retained. One could make the same point in another way by saying that the object is to ensure that what is commonly called legalised abortion does not become a feature of our law or of our society against the wishes of the people.
Although the Government of which I an a member were not involved in the drafting of the proposed amendment, we are in no doubt that the drafting of the amendment presented difficulties. It is indeed apparent that many drafts were produced by various people before the present text was adopted and put forward. I am sure that the previous administration would not have claimed that it is a perfect text — there is no such thing as a perfect text in such a context — but I, for my part, acknowledge fully the work done in this respect by the previous Government. That work produced the present text which, when it appeared, met with a substantial measure of support or acceptance even amongst people who had been sceptical, though more recently there is evidence of some second — or perhaps I should say third — thoughts. My party accepted the amendment as reasonable.
Having as I hope clearly acknowledged the work done and the merits of the text produced by the previous administration, I also acknowledge that, more recently, questions have arisen as to whether the particular wording of the amendment could cause unforeseen difficulties. For example, on the one hand, I have been advised that, on one particular interpretation, the amendment could in fact have an effect very different indeed from what it might at first sight appear to have and that it could positively facilitate the introduction of abortion on a very wide scale. That point, though it has received some brief mention in print, has not to my knowledge been widely made, but it is of its nature a serious point that deserves to be and must be seriously considered. On the other hand, on another interpretation of the text, which has been put to me by a very responsible authority as a probable interpretation, it could require the State to make the 1861 Act more restrictive than it is, which I think is something that nobody has suggested it is either necessary or appropriate.
I think it right to emphasise that I am not saying that any of the interpretations to which I have referred would necessarily be upheld by the Supreme Court, but they have been put by responsible people as interpretations that could be supported by reasoned argument and that might prevail. Moreover, quite apart from those points that have already come before me in various ways, I am more than willing to listen with an open mind to anything said by anyone inside this House or outside that will help to clarify the text and prevent any future difficulties.
But I would not like there to be any misunderstanding about this. When I say that I have an open mind about suggestions for amendment, I mean of course suggestions that would not affect or erode the underlying principle of the amendment which is that the practice of abortion in the ordinary sense of that term should not be permitted to creep into our law. I am committed to that underlying principle and there is no point in my saying that I will give consideration to any suggestions that would conflict with it. Such suggestions cannot be accepted as far as I am concerned.
That, I think, is all I need to say at this stage about the reasons for introducing the Bill and about my attitude to the particular wording of the constitutional amendment which it proposes. It would be unreal, however, if I were to leave it at that and ignore the fact that the proposal has attracted criticism based on the contention that it reflects a sectarian view of the rights of the unborn or, at best, that it reflects a view that ought not to be enshrined in the Constitution as distinct from ordinary legislation.
In principle I do not see that any distinction can be drawn in this context between a statutory provision and a constitutional one to the same effect. It is possible to argue that it is unwise to give constitutional status to a particular statutory provision but that is a different matter. I do not think that it is possible to argue that a provision which in a statute is not sectarian can become so if it appears in the Constitution. A number of those who have described the amendment as sectarian are using arguments which, if valid, would also apply to the existing law. The existing law, however, is contained in a statute that was enacted by the Westminster Parliament for the whole of the then United Kingdom in the year 1861. It is a statute that operates to this day in Northern Ireland.
I leave that point at that and move on to the substance of the criticism that has been made. Some of that criticism has come from people speaking from what I might call the secular-humanist stand-point. I cannot hope to convince anybody of that way of thinking. If a person believes that a woman has a right to have an abortion at any time and for any reason or none — that the matter is exclusively her concern and that, as the expression has it, hers is the "right to choose"— there is really no common ground that I can see for debate between that person and somebody who believes that pre-natal life is human life with independent rights of its own, rights that are in some sense commensurate with its status as human life.
What I have to say must therefore be primarily addressed to people who support the underlying idea that abortion normally is, at the very least, an offence against human rights but who nevertheless believe that it must be accepted as the lesser of two evils in certain circumstances.
Even on that basis, there is a major problem about discussion because of the very wide variation in what different people would regard as sufficiently exceptional to justify an abortion. Not only is there no agreement amongst different religious denominations on this issue but, in many cases, there can be wider differences of view within a particular denomination than between one denomination and another. The law cannot cater for the variety of attitudes which different people may conscientiously hold unless it is wide enough to cater for the view that accepts what amounts to abortion on demand.
Of course, one must take that a stage further and ask why the law should not allow even for abortion on demand. Why, in what is claimed to be a pluralist society, are minorities not allowed to have abortions where their consciences so permit? For an answer to that, one has to look at the nature of the problem. If a person believes that the unborn have a right to life, even though it be only a qualified right, that person cannot agree that the law should allow that right to life to be taken away simply because somebody else, even somebody so intimately and uniquely related to it as its mother, decides that it should be so taken. Even if it could be shown that that view about the right to life of the unborn was objectively invalid, those who hold it would still have the same duty to act according to their consciences and, in so far as they could through the laws enacted on their behalf, to protect what they see as human life. For those who believe that another human life is at stake, the matter is clearly not a purely private decision but a matter which ought to be dealt with by the law and, while giving due weight to the rights of the mother, they must logically afford that protection even against the wishes of the mother. Indeed, if that were not so, abortion law would have little meaning.
There is, however, a special difficulty if in fact the attitude to which I have referred about the importance of pre-natal life is, for all practical purposes, exclusively held by members of one church even if they may be in the majority. I think, therefore, it is worth looking at the facts a little more closely.
First of all, an important distinction must be made. It is one thing to say that abortion should be permitted for special reasons at a certain stage of pre-natal life and quite another thing to say that the early stages of pre-natal life are such that the life that is there has no rights at all. I do not think it is either necessary or desirable for me to attempt to discuss here whether, in any debate about life at and from human conception, one should seek to distinguish between "life", "human life", "human being" and "human person". In very large measure, that kind of argument is sterile because it is often a matter of how one defines the terms one is using. The substantive question at this point is whether there is any validity in the claim that the Catholic Church is alone in holding that the point at which pre-natal life has a claim to protection is the time of conception. The question of possible exceptions to a general prohibition on abortion can be dealt with later.
There is, of course, no doubt that the Catholic Church holds that the critical point is the time of conception. There is equally no doubt that some opponents of the amendment, in seeking to establish that the amendment is sectarian, have given the impression that the emphasis on conception as the relevant time is, in their language, the "Catholic" view. Incidentally, if anybody doubts that that is the impression given, even by casual references, I would refer to a recent leaflet of the Anti-Amendment Campaign where they expressly referred to the possibility of the expression "the unborn" being interpreted as operative from the time of conception as being an interpretation "in a strictly Catholic sense". May I say in passing that I myself am using the word "Catholic" simply as the term that corresponds with ordinary usage in this and many other countries — I am sure I need not state that I am not using it in any way that would be offensive to those Protestants who apply the adjective "Catholic" to themselves or their Church.
The Church of Ireland have issued several statements on the amendment. They oppose the amendment for reasons they have given. They have, incidentally, not only not used words such as "sectarian" but have gone to trouble to correct allegations that they had done so and I believe that, when the dust of this present controversy has settled, they will be recognised for the care they have taken in what they have said. In their statements, they have consistently referred back to — and one may fairly say they have taken their stance on — a report presented to the Lambeth Conference of 1958. That report, which I assume from the Church of Ireland statements was in fact adopted by the Lambeth Conference, accepts the possibility of abortion at the dictate of "strict and undeniable medical necessity". I shall come back to that later. At this stage I simply note that the fact that the report admits some exceptions on grounds of medical necessity gives added force to what I now want to say about another point in the report, namely that it also includes the following:
In the strongest terms Christians reject the practice of induced abortion, or infanticide, which involves the killing of a life already conceived ...
May I repeat the words: "the killing of a life already conceived"? So it seems that the Anglican Church too, or in our context the Church of Ireland, takes the view, in the context of an examination of the problem of abortion, that conception is the point of critical significance.
I believe that the words "the unborn" quite probably would be interpreted by the Supreme Court as being applicable from conception but for reasons independent either of Catholic or Church of Ireland theology. I understand that the weight of legal opinion is strongly behind the proposition that that is how the existing law of the land is to be interpreted. That is all the more significant when the particular law is exactly as we inherited it at the foundation of the State — the same law as then obtained in the neighbouring island — and therefore, one may reasonably assume, not influenced overtly or covertly by any ecclesiastical pressure groups.
I give the following quotation, the date of it is 1957 but, despite legal changes since then which liberalised abortion law in England, the basic position as to what is covered by the law remains, even to this day. The quotation reads:
At present, both English law and the law of the great majority of the United States regard any interference with pregnancy, however early it may take place, as criminal unless for therapeutic reasons. The foetus is a human life to be protected from the moment when the ovum is fertilised.
Again, the words at the end of that bear repetition: " ...a human life to be protected from the moment when the ovum is fertilised". The quotation is from page 141 of The Sanctity of Life and the Criminal Law by Dr. Glanville Williams, acknowledged as one of Britain's most eminent academic lawyers and, as it happens, a strong advocate of liberal abortion laws. Incidentally, in case anybody should think that even Dr. Williams, in the tradition of Homer, could have nodded on that particular occasion, I could add that the same statement of the law may be found in another work of his, volume 5 of Current Legal Problems — The Law of Abortion, pages 128-129.
Is this acknowledgement of conception as the critical point peculiar to the common law countries? Apparently not. The Report of the European Commission on Human Rights in a 1977 case, Bruggemann and Scheuten v Federal Republic of Germany, paragraph 60, states that a survey of 13 states who are parties to the European Convention on Human Rights revealed that, and I quote, “without exception, certain rights are attributed to the conceived but unborn child ...”. It may be that the word “conceived”, in relation to some of the states concerned, is an interpretation by the Commission, but the word is apparently actually used in the laws of a number of the 13 states.
If we go further afield, to the western hemisphere, we find that the American Convention on Human Rights, which was drafted under the auspices of the Organisation of American States and which came into force in 1978, provides, in Article 1, that the right to life shall be protected by law and, I quote, "in general, from the moment of conception". Once again it will be seen that the emphasis is on conception as the critical time.
So, the proposition that conception is the point of commencement of life the taking of which constitutes abortion and to which legal rights are attributed is more than just a peculiar notion of the Catholic Church or of it and the Anglican Church. It is a proposition that in one way or another seems to be reflected in the laws of most of what is usually described as the western world. This, of course, does not in any way imply that those laws do not admit of wide exceptions. Obviously they do and, as I have already indicated, the United States Supreme Court has decided that the rights of privacy of the mother take precedence over the rights of the various states to legislate as they might wish, at all events until a late stage in pregnancy, but that is not the point that is now at issue. The point that I am making is that I think it must be quite probable that the Supreme Court would interpret the words "the unborn" as extending back to the time of conception and that if they were to do so they would not in any rational sense of the term be applying a peculiarly "Catholic" interpretation to those words.
If we agree, even as a working hypothesis, that that is how the expression would be likely to be interpreted and that there is ample legal support from the laws of other countries for adopting such an approach, there still remains, of course, the problem about exceptions and I will not try to deny that it is a very, very difficult one and, at the end of the day, there may be no real solution but only an appeal for mutual understanding. I hope, however, that I may have some contribution to make at least towards promoting mutual understanding. Why cannot we have clearly expressed exceptions to cater for the views of minorities? I have already touched on the nature of that problem: first, that we are dealing here with deep-seated convictions that what is at issue is not the right of dissent but the protection of independent human life and, second, that there is such wide disagreement about the exceptions that no law could cater for all opinions without reducing itself to something meaningless.
In a recent newspaper article — in The Irish Times of 2 February 1983 — a prominent spokesman of one of the Protestant Churches was quoted as having made certain comments and, in between the direct quotations, there was what appears to be an attribution of opinion to him in the following terms:
But that didn't change the basic opposition to the amendment and though the "life of the mother" clause would cover some of the Protestant requirements for termination of pregnancy it didn't cover the psychological health of the mother or the position of rape victims.
If this is in fact a substantially accurate attribution — and it is in line with what has been said by others so in any event it represents a point that calls for an answer — it immediately raises two difficulties. The first is that it is not easy to see how there could be anything that could properly be identified as "Protestant requirements for termination of pregnancy", bearing in mind that the Irish Council of Churches in their statement have expressly drawn attention to the fact that differing views are held amongst the member Churches.
The second difficulty is perhaps even more important. I can well understand and sympathise with the feeling of concern which underlies references by a Christian clergyman to the psychological health of a mother in distress, but the sad fact is that if one were to invite someone to write an abortionists' charter, something that would most simply and effectively provide for abortion on demand without actually using those very words, the ready-made phrase is "the psychological health of the mother"— not, indeed, that any variation on that theme would be much better. It is not a question of being on the slippery slope — with that kind of provision or proviso in the law, we would already have reached the end of the slope: we would have arrived.
I know of no way around this obstacle. Even if there were no difficulties in principle in providing for exceptional circumstances in which the law might treat induced abortion as acceptable, I know of no way in which the law could provide for exceptions based on hard cases without leaving the door open for abortion on an increasing scale, all the more so when even here the public are being bombarded, day in day out, with pro-abortion propaganda. If anybody, whether representative of any of the Churches or of the Jewish community or of any other group, can produce to me a text that will meet those problems, I have already indicated that he or she can be assured that I will give the suggestion my fullest consideration and nothing that I have said or that I will have to say in any way takes from that.
I want now to refer briefly to hard cases. I would like to make it quite clear that by hard cases I mean a very small minority of cases where an abortion may be sought in very difficult circumstances. I am not referring to certain drug treatment that may be afforded to a rape victim within a fairly short time of the rape. I am not referring to that because, on the information available to me at present, and having regard to the special considerations that have to be taken into account where a rape has taken place and a conception that might otherwise occur may be prevented, I am not to be taken as accepting that that kind of treatment of a rape victim would be in conflict with either the letter or the spirit of the amendment. But there could be some hard cases where the "treatment" sought would constitute abortion which conflicts both with existing law and with the proposed amendment. The question may, therefore, legitimately be asked whether what I have said amounts to saying that neither the law nor society can take account of hard cases no matter how heartrending they may be and that there can be no allowance for a woman who breaks this rigid law. Of course it does not mean that. The law forbids theft. It does not go on to say that allowances will be made for a person who is in serious need. Yet, in its practical operation and in its application by the courts, hard cases are catered for and one of the basic functions of the courts is to apply the law in a manner that takes account of all the relevant circumstances.
This may not seem to some to be the ideal answer, and I can see their point of view. But, in practical terms, I suggest that it is either that or open the flood-gates. If leaders of religious groups put, on one side of the balance, a problem, which, however real, concerns what they surely accept as being a very small number of cases that they would be prepared to see as exceptions, and if they put on the other side of the balance the massive scale of abortion that is nowadays a feature of life over most of the known world, what conclusion can they reach as to which is the greater evil?
There is only one remaining point that I think it necessary to deal with. That is the suggestion that a Constitution deals with general principles and not specifics, that a Constitution ought to be such as to be able in all its provisions to command the assent of all right-thinking citizens and that for those and other reasons it is undesirable that what is presented as a complex moral and social issue should be the subject of a constitutional provision rather than a legislative one.
Some Constitutions set out only general principles. Ours is not one of that kind. It is entirely appropriate that such a basic right as the right to life of the unborn should be explicitly mentioned in it. There are specific references to many rights of much less importance.
The suggestion that a Constitution should be such as to command the support of all right-thinking people for all its provisions is, I am afraid, unsustainable as a theory and wholly unattainable in practice. The Constitution's provisions on trade union membership are, for instance, criticised by some as giving too much freedom to unions and by others as unwisely restricting trade union activity. Both criticisms may be invalid but both cannot be valid. Likewise, provisions about, for instance, the right to own private property are criticised. Therefore, I do not think the proposition that a Constitution must in all respects command universal support is one that can be sustained.
What of that point that the Constitution should not deal with complex moral and social issues? Certainly there are, within the general area of abortion problems, many issues that are complex in the moral and social sense, but the basic issue, to those who believe that pre-natal life is human life, is not complex. It is starkly simple and reduces itself to whether we as a society are willing to accept the introduction of the practice of induced abortion into our legal system. At the end of the day, there are only two possible answers to that basic question. One is "yes". The other is "no". I submit to the House that the answer ought to be "no".
In commending the motion to the House — the motion that the Bill be now read a Second Time — I do so on the basis of what I have said earlier, namely, that in approving of the principle of the Bill, which is what the House does in giving a Bill a Second Reading, Deputies would not as far as I am concerned be committing themselves to the particular wording now proposed or any other particular form of wording but only to the principle which I think we all understand. On that basis, I recommend the Bill to the House.