Before the debate was adjourned I was saying that the 1983 Amendment had inserted a requirement in the Constitution that the life of the unborn be protected. I said that this was a laudable aspiration. I went on to say that it was a right qualified in its forumlation by the necessity to have "due regard to the equal right to life of the mother". It was, and it remains, the responsibility of this House to provide the detailed legislation which is necessary to strike the balance between such rights. This fact was envisaged in the 1983 Eight Amendment where the State guaranteed "in its laws to respect, and, as far as practical, by its laws to defend and vindicate that right". As the recently tragically deceased Mr. Justice Neil McCarthy pointed out in his judgment in the X case, we in this House have been remiss in our duty by failing to provide such legislation which, as I said, is specifically required by the terms of the Constitution.
In contrast, the Fourteenth Amendment of the Constitution Bill, dealing with the question of information, which is also before us, is consistent with this requirement. It inserts a right in the Constitution and leaves to legislation its detailed control. The Minister for Health has given the House an outline of the likely terms of such possible legislation. That is why, no matter what the people of Ireland decide in December regarding the Twelfth Amendment on the so-called substantive issue, the Progressive Democrats believe that legislation will be essential to guide doctors in dealing with the real life cases that simply will not readily comply with the formal constitutional text now proposed. To do otherwise would force the Supreme Court to continue to have to make the law on a case by case basis. Given the reality of the Supreme Court judgment, and irrespective of the outcome of the constitutional referenda on 3 December, medical terminations will be lawful in Ireland in certain limited circumstances. Are we now to allow this situation to apply without any legislative control? How are our doctors to decide on the hard cases, the border line cases and the emergency cases? Will they have to endure a threat of having their judgment challenged after the fact in some criminal suit? Will the woman's life be put at risk otherwise because they are unsure of their position? How are doctors to define the elusive dividing line between life-threatening and life-shortening situations? It should be clear to everyone, therefore, that a legislative framework will be required, irrespective of the decision of the people on the Twelfth Amendment on 3 December.
In this context too it is important to remember that there is little point in asserting that such and such a medical procedure will not be affected by the proposed constitutional amendment. I repeat that the reality is that when the constitutional provision is subject to interpretation by the Supreme Court, the judges can only adjudicate on the basis of the words in the Constitution and not by reference to any other words or documents, no matter how well-intentioned such clarifications may now seek to be.
A particular concern about the wording before the House is the proposal to totally exclude the danger of self-destruction or suicide from any consideration in a possible medical termination of pregnancy. I am aware of the arguments for such a provision and certainly it would be unacceptable to allow a mere plea of suicidal intent as a general basis for seeking a termination, but I believe that the particular proposal before us is too absolutist a position.
First, suicidal disposition was the basis on which the X case was decided. Had we such an exclusion in the first place, at that time, the Supreme Court would not have been able to reverse the Costello judgment, and the injunction against the 14 year old travelling would have remained. People must ask themselves would they really have supported the continuation of such a situation? Do they believe that the Supreme Court judges were correct in lifting the injunction?
Second, I believe that the real danger of suicide as a basis for termination could be adequately controlled by legislation so as to prevent it becoming an abused pretext for the availability of abortion in Ireland. Article 40.3.3º already provides the basis for such legislation. Whether or not we like it, there will be some genuine cases of intended suicide, however few.
Since the Supreme Court decision in the X case there has been no sudden rush to the courts by women looking for an abortion on the basis that they are suicidal. This is not a particular problem now, and there is no pressing reason to exclude it constitutionally as a basis for a termination in every case in the future. We must be willing to consider the fact that some very unusual suicide case may arise where the woman cannot for some reason or another leave the jurisdiction, and where a real and unavoidable risk of self-destruction exists. For example, a young pregnant girl may become severely anorexic after a multiple rape. Such a girl, with her unborn, could be condemned by this Amendment, with the hands of the Supreme Court tied, thus preventing any sensible intervention to save her life. I would seriously question the basis for putting such an absolute ban in our Constitution. I believe that it is undesirable.
Another major concern about the proposed Amendment wording is the distinction to be drawn in the Constitution between "life" and "health". This could take away from doctors, from the courts and from this House any right to deal with those hard cases which will arise.
No one can really know whether a pregnancy which will, as a matter of probability, drastically shorten and devastate a woman's life, will be permitted to be terminated under this proposal. It seems to me that the wording is calculated to try to distinguish between life shortening and life threatening pregnancies and to exclude completely "life shortening" risks as a ground for termination.
This provision scarcely reflects reality and fails any objective analysis. Furthermore, it is not easily interpreted. The distinction between life threatening and life shortening is clearly problematical. Are we as a people to say to some women: because this pregnancy will not kill you now but will only leave you immobilised, maybe a physical or mental wreck, and perhaps with a dramatically reduced life expectancy, you may not have a particular treatment?
We should also recognise the fact that the proposed Amendment will put at risk the position of the existing Article 40.3.3º in so far as it removes the protection of Protocol 17 of the Maastricht Treaty by modifying the Article which the Protocol protects. Furthermore, it is accepted by all that any new insertion will not be protected from scrutiny by the European Court of Justice. It is somewhat doubtful whether or not our European partners would agree to change the Protocol to protect the proposed Twelfth Amendment if passed.
I now wish to turn briefly to the Thirteenth and Fourteenth Amendments of the Constitution Bills. These honour the commitment given by the four party leaders at the time of the Maastricht Referendum to provide travel and information rights. The Progressive Democrats have no hesitation in supporting the passage of these two Bills in this House and in recommending them to the people for endorsement. We support them because we believe that travel and information are basic human rights, which should not be limited by the State except for the most pressing and exceptional of public policy reasons.
It is, I believe, unacceptable to attempt to restrict travel to avail of services legally available in other states and similarly wrong in practice, and in principle, to ban absolutely all information about such services. By denying information to women about abortion in England, we are also ruling out the possibility that comprehensive, non-directive information could lead to some women rejecting that option.
If such information becomes available only when a women arrives at the clinic in England, after she has undergone the trauma of deciding on an abortion; put together the money necessary for the treatment and, perhaps, contrived a pretext for her travel, she may simply not even want to consider any alternative course of action, such as keeping the child or having it adopted. We therefore support the passage of these two Bills in this House. We welcome the cross-party support for them and invite the people to support them in the forthcoming referenda.
The three measures before the House arise out of decisions of the Government made after consideration of the issues involved by a sub-committee of the Cabinet, of which I was a member. Because they are Government Bills, and because the Government meet and act as a collective authority, or ought to do, their members, including myself, are bound to carry through their decisions or else resign from the Government.
In present circumstances, therefore, I consider that it would be inconsistent with membership of the Government for us now to vote against any of these Bills in the Oireachtas. That, in turn, presents any member of Government who disagrees with the substance of any of these measures with a choice, to allow the proposal to go before the people who are the sovereign authority in our constitutional scheme of things for their decision, or to resign from Government and precipitate a general election.
The latter course of action would also prevent me and the other party leaders from honouring the pledge we gave during the Maastricht referendum campaign that a referendum would be held this year to restore rights of travel and information. The passage of the Bills will give all the people, including Irish women, the opportunity to pass judgment on these proposals. The Progressive Democrats as a party will collectively publish their analysis and advice on the measures proposed and I have no doubt that, as a political party, we will advise the electorate and our own supporters in clear terms during the course of the campaign.
The issue now before this House is as to whether the matter should be put before the people for their consideration. We are enacting nothing here in our consideration of these Bills. Unfortunately, the debate up to 3 December is likely to be divisive and will damage the cohesion of our society. A foretaste of the debate has already alarmed many, but to plunge the country now into an abortion election as it would undoubtedly be dubbed, would be unforgivable.